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Henry Hill: Frost’s appointment shows the Government is not resigned to the Northern Ireland Protocol


Throughout the Brexit negotiations, the European Union always insisted that its approach to Northern Ireland was governed by the pre-eminent importance it placed on the Belfast (‘Good Friday’) Agreement. Events may be about to test this thesis.

Today the Loyalist Communities Council, “an umbrella group that represents the views of the UVF, UDA and Red Hand Commando” in the Guardian’s words, wrote to Boris Johnson to announce that the major paramilitary groups were withdrawing their support for the Agreement.

Whilst they insist for now that unionist opposition to the Northern Ireland Protocol remain ‘peaceful and democratic’, the move has been made against a background of mounting concern about a resurgence of loyalist violence, most likely targeting the infrastructure and personnel enforcing the new Irish Sea border between Ulster and the mainland.

All this is important context to the announcement that Lord Frost, the new Brexit Minister, is going to unilaterally extend the grace periods exempting supermarkets from checks on goods being shipped from Great Britain to Northern Ireland, as well as a moratorium on customs declarations for parcels being sent to the Province. The move has sparked outrage from Brussels, which has accused the Government of engaging in a second UKIM-style breach of international law.

But according to sources familiar with the thinking behind the move, this is quite another sort of manoeuvre. The threat of “specific and limited” breaches to international law deployed during the debate on the UK Internal Market Bill were a short-term negotiating tactic – and one which worked, in as much as it helped Michael Gove to secure concessions from the EU on the Protocol.

However, the Chancellor of the Duchy of Lancaster was at best negotiating with one hand tied behind his back. Whilst the Prime Minister and his team had apparently come to office fully aware of the danger posed by the Backstop – see this letter from Johnson to Tusk from August 2019 – the passage of the ‘Benn Act’ severely restricted their ability to push back against Brussels’ demands before the Withdrawal Agreement had to be concluded.

Thinking within government has since divided into two camps. The first, represented by Gove, is essentially facilitative. They don’t like the Protocol, but they recognise the extreme difficulty of resiling from it. This would certainly be in keeping with his more conciliatory approach to the parallel row over devolution.

Frost apparently takes a different view. His camp believes that with the best will in the world, the Protocol is simply not sustainable. Even if its first few weeks had not already witnessed several emergency summits, the triggering of Article 16, and the above loyalist declaration, there are deeper structural problems that mean it cannot be a stable foundation for a lasting settlement.  Specifically, the fact that the whole thing is rooted in EU law means that it is a ‘living document’, whose implications and scope will continually expand in line with EU regulation and rulings from the European Court of Justice. Its operation will therefore drag Northern Ireland farther and farther away from the economic orbit of Great Britain by default.

If you take this view, then it follows that the Protocol needs to be replaced, and sooner rather than later – just as the UKIM Act partially redressed Theresa May’s capitulation to the devocrats over post-Brexit powers. This is where Frost’s unilateral extension of the grace periods comes in.

Those privy to the thinking behind the move believe that it is much more defensible internationally than the UKIM gambit was. Especially in light of the dangerous situation with the loyalists and the role of empty shelves as a focus for unionist anger, the Government can defend a temporary measure intended to buy more time to find lasting solutions.

But as we saw when we looked at Gove’s negotiations, such solutions may not exist in the current framework. He notably refused to reassure Democratic Unionist MPs that the original grace periods were intended to buy time to make GB-NI supply lines work, rather than give Northern Irish businesses time to find new, EU suppliers. Which on the face of it makes another round of temporary fixes just another tactical get-out-of-jail (for now) card.

Unless, that is, the ambition is to have secured material changes to the Protocol by the time those extra six months are up.

This won’t be easy. Contra the somewhat complacent assumptions of some ERG members, it would be very difficult for the UK to simply resile from the Protocol. A short, sharp, UKIM-style threat is one thing. Standing indefinitely in the bad graces of the international law community quite another.

So there are two possible paths forwards. The first, assuming that Brussels absolutely refuses to play ball, is that Britain manages to argue that the EU is operating in bad faith and uses that to justify walking away from the agreement. The second is more attritional, and involves persuading the EU that reworking the Protocol is in the interests of both sides.

This might seem optimistic. But in the event of an actual return to violence, not to mention an endless succession of crisis talks, Brussels will be forced to choose between its hard-nosed defence of the Single Market and its homilies about the peace. British strategists apparently think that the EU places such a high value on its being seen as a moral (indeed, the most moral) actor that it is unlikely to stick to its current purist position in such conditions.

In the event of fresh negotiations, London would be aiming for a new arrangement which overturned two axions which May unwisely signed up to: that there be no change whatsoever to the border between the United Kingdom and the Republic of Ireland (which is often dressed up as a Belfast Agreement obligation, but isn’t); and that the EU should not have to adapt its legislative arrangements. Greater cooperation in other areas – maybe defence? – could be offered in exchange.

This is a bold strategy. To have any chance of working it will take months of sustained diplomatic and governmental effort. If the Prime Minister really has elevated Frost with such a mandate, it is vital that he be left in post long enough and be sufficiently empowered to pursue it. To let one half of your Union strategy collapse into chaos might be regarded as carelessness; to let both looks like negligence.





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