The hidden complexities of the UK Government Northern Ireland Protocol Bill

The publication of the UK government’s Northern Ireland Protocol Bill appears to have brought UK-EU relations to a new low ebb, with trade war an increasing concern to businesses. Below the surface, however, all is not as it seems, not least from a UK government caught in a dilemma it cannot easily resolve between reform and rejection.

The Northern Ireland Protocol Bill has been widely seen by commentators as disgraceful both in terms of the unilateral dismantling of a treaty designed to reconcile Brexit, trade and a peace process, and in the powers given to Ministers to make future decisions without recourse to Parliament. The legal reasoning, using the international law notion of necessity, is according to experts preposterous[1], given we are talking of instability in Northern Ireland, not an imminent threat to the future of the UK. Even in Northern Ireland, a majority of Assembly members recently elected have indicated their opposition.

Diplomatic relations with many EU Member States in particular with neighbours Ireland are said to have reached their lowest ebb in many years. The economic cost to the UK could be high, since the threat of EU retaliation into a trade war is already leading to an investment slowdown according to business organisation the CBI. UK participation in the Horizon Europe research and innovation program is a dwindling prospect, with university leaders privately talking of a ‘brain drain’.

Perhaps oddly, though, given President Biden’s well-known Irish heritage, the US administration’s initial response was not to condemn, but to urge both the EU and UK to negotiate further. Prime Minister Boris Johnson played down the legislation in a recorded interview prior to its publication of. Conservative MPs from across the party have been relatively quiet in praise or criticism.

For what we must recall is that this Bill is just the latest in what has been a long-running saga of Northern Ireland and Brexit. By now, there is considerable history, virtually all disputed, and deeper implications which mean we are getting to the point where nothing is quite as it seems on the surface. The participants know this, rendering this a highly-complex multi-player negotiation to be analysed carefully with reference to both stated and hidden motivations.

The first hidden aspect of the Protocol Bill is that few if any observers expect anything like the current content to become law. It seems that the original plan, developed during a pause in negotiations with the EU between March and May while the Northern Ireland election campaign proceeded, hoped that just the threat of a Bill to undermine the Protocol would create movement. Specifically, the EU would reopen their negotiating mandate and the largest unionist party, the Democratic Unionists, would lift their veto on the formation of a new Northern Ireland government.

When neither happened, there appears to have been some frantic consultations among Ministers about what a Bill should contain, with the end result being a text that removes virtually all substantive provisions of the Protocol. Recognising that such an obvious breach of international law was going to be problematic to justify, the government shopped around for a rationale and came up with it being a necessity to protect the UK.

As was quickly noted, there was then a glaring contradiction between this justification and the failure to trigger Article 16 of the Protocol, which specifically allows either side to take safeguard measures if required. There is a further problem in that the suggestion of necessity does not sit well with the need to pass a Bill through Parliament, which could take a year.

This is a key clue in the UK government’s real intentions. For triggering Article 16 to seek to remove parts of the Protocol was doubly problematic, in that the provisions are limited and retaliation from the EU likely. The aim for UK government ministers seems to be for a solution without consequences, and if that can’t be found, to keep the issue live for political gain by blaming the EU.

In the most optimistic reading, the US administration turns a blind eye to UK proposals of international law breaking while the unionists are persuaded to return to the Northern Ireland government, the EU then show more flexibility than previously shown, and the Bill is withdrawn as a great victory for the Prime Minister. Slightly more pessimistically, all this could be hoped to happen while the Bill goes through UK legislative processes. It is a plan, of sorts, but with a number of shortcomings and one fatal flaw.

The shortcomings start with trust on the part of the EU and unionists, or rather the lack thereof. Neither have any in the UK government. In the case of the EU every plan such as this, and there have been previous ones such as withdrawn clauses of the Internal Market Bill of 2020, further reduces their belief in UK goodwill. For the Unionists, this is the government that signed the original Protocol with customs and regulatory checks between Great Britain and Northern Ireland, and has not reversed that despite repeated promises.

Without trust, the EU is less likely to show the further flexibility that definitely exists around the Northern Ireland Protocol, in which case the UK government hopes the threat of a Bill that will in effect force a land border on Ireland can focus minds. However, that threat is diminished by bipartisan US opposition, and pressure from business, including iconic car manufacturers, fearing the removal of the Trade and Cooperation Agreement. Such pressure has in the past proved decisive.

These shortcomings make this plan to resolve issues around Northern Ireland and Brexit, the Bill, as unlikely to work as previous ones. But one can sort of see the logic, not least in light of the most fundamental underlying problem for the UK. For while it has a clear idea of an ideal solution, of no borders for UK exports to the EU via Northern Ireland, there is a split when faced with the realities of trade, borders, and the comparatively greater size of the EU.

Put simply, if the EU will not agree to remove the Protocol, the UK government does not know whether to settle for some sort of limited agreement it can sell as victory, or elevate to a trade and diplomatic dispute. Previously, it has talked of the second, while accepting the first. But this is not only starting to become something of a joke externally (FT journalist Alan Beattie writing of the UK’s annual capitulation), but also to cause problems for the Prime Minister with his most anti-EU supporters. Coming just after he only just won a confidence vote of MPs, he can ill-afford to be seen to appease the EU. Meanwhile those in the Cabinet who seek to replace him, such as Liz Truss, feel the need to show their credentials as hardliners against the EU.

Where this leads us to is that while there is a plan behind the UK government’s Northern Ireland Protocol Bill, it is a fragile one. Sitting behind is something more basic, to simply get through the day, and hope that something new turns up in the future. That might not do much for diplomatic relations or the economy, but it is the politics of Boris Johnson and the UK at the moment. Meanwhile the EU will be firm, cautious and unimaginative, as it has been throughout the talks on Northern Ireland and Brexit.

What that seems to point towards is ongoing stalemate, as the UK and EU both stay in the same patterns previously established. Thus, like the UK government, business and other observers have to hope something else turns up, with their assistance.

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[1] https://publiclawforeveryone.com/2022/06/13/the-northern-ireland-protocol-bill/