The UK government have a stronger hand in the Protocol dispute than their critics think

Lord Frost 

Well, where are we on the Protocol?   As talks begin in Brussels which are expected to last  for months , Lord Frost says there’s a long way  to go.  EU vice president Šefčovič insists the EU has reached its limit.  Those are the public positions.

Even the briefings are somewhat contradictory.  The Times hopefully reports that the EU is open to a compromise deal that would limit the role of EU Court of Justice in Northern  Ireland, with disputes being referred to an independent arbitration panel; while the FT reports that  the EU is being urged by France, Germany and the Netherlands  to prepare for a trade war – just in case.

In the real world, I think we can take it that urgency has receded. Jeffrey Donaldson’s  threat to pull the plug on Stormont next month makes no sense, even from the DUP’s point of view.

Dublin commentators continue to slam and scoff at the British position – as perverse, desperate and  disingenuous. These views enjoy plenty of support across the water. While being entirely understandable, I think they’re overdone. While it was Brexit that got us into this mess, the British position is stronger and more effective in revisiting a chronic problem of their own making than critics allow.   Would the EU have made these concessions without political pressure, merely as a result of talking to NI business? I don’t think so.

Dublin’s  stance of moral superiority over the sanctity of treaties can be questioned.  After all Treaty violation was at the origin  of the Irish state    As the British constitutional guru Vernon Bogdanor points out, who are they to talk when the President of the Dail De Valera repudiated  the Treaty passed by the Dail and precipitated civil war?  OK , it’s  a wind up point but still. And interesting that Dev a century ago and Frost today both made the dubious claim that the treaties in question were both negotiated under duress.

Frost deserves more respect that he has received for his quite impressive speech in Lisbon last week where he punctured the holier than thou bubble of the Commission

.. we look at the EU and see an organisation that doesn’t seem to want to get back to constructive working together. For example we have seen:

• Extreme tensions over the EU’s vaccine ban earlier this year.
• A block on our entry to Horizon (and of course earlier a refusal to allow us into Galileo)
• Threats to our energy supplies through the interconnectors
• A needless ban on the import of most shellfish to the EU, causing significant pain to our fishermen; and
• Knee-jerk resort to legal action on Northern Ireland

And so we come to the apples and pears argument at the heart of the whole dispute: practical mitigation vs governance.   The UK are  taking a stand against the authority of the the European Court of Justice and  the right of the EU to make laws for NI over which its people have no say. No, this is not the hypocrisy people claim it is.   Yes the overall UK referendum result ignored NI ‘s Remain vote but there  was a referendum after all, and NI MPs did have a say, whether you liked it or not,  materially affecting  the shape of subsequent events leading to a hard Brexit.

But it is not just about the Court. It is about the system of which the Court is the apex – the system which means the EU can make laws which apply in Northern Ireland without any kind of democratic scrutiny or discussion. Even now, as the EU considers possible solutions, there is an air of it saying “we have decided what’s best for you, and will now implement it.”

….you must remember that it is this government that governs Northern Ireland as it does the rest of the UK. Northern Ireland is not EU territory. It is our responsibility to safeguard peace and prosperity in Northern Ireland, and that may include using Article 16 if necessary. We would not go down this road gratuitously or with any particular pleasure. But, as Burke famously commented in his pamphlet “there is however a limit at which forbearance ceases to be a virtue”. It is our fundamental responsibility to safeguard peace and prosperity in Northern Ireland, and that is why we cannot rest until the situation has been addressed.

Should anyone be surprised if the UK government adopts what sounds like a unionist position?  Johnson may feel he owes them one. There are no votes in this for him. But appearances can deceive. The UK government are no unionist poodle. They are adopting a pro-Union position of their own making across the piece which diverges sharply from the DUP’s in many respects:  over enforcing abortion regulations, promising Irish language legislation , a ( so far) a de facto  amnesty without further legal process,   and requiring unionist compliance with  the GFA ( note that Edwin Poots ; a DUP  North –South boycott is also unlawful, leaving him open to dismissal ). All of this is in accord with wider British interests and opinion.

The DUP should take care not to overplay their hand this time. The threat to bring down the Assembly is kamikaze . Politically it can only strengthen support for a border poll and weaken the centre ground. For nationalists the threat of a hard land border is at most, distantly theoretical and we hardly need the overburdened Joe Biden to defend us from it.

Just now though there are few clues as how the parties will jump next. Practical mitigation will not be enough. There are precedents for arbitration rather than the sole authority of the European Court. A guaranteed voice somewhere in the complicated structure  for the Assembly should encourage the Executive  to come up with coherent views or face ridicule. Surely it is unconscionable that both sides will not do a deal on, call it what you like, a reformed protocol or extensive mitigation.

Brian Walker

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London