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British Foreign Secretary Liz Truss unveiled on Monday plans to override some post-Brexit rules for Northern Ireland on the grounds that they create unacceptable barriers with the rest of the UK. But Prime Minister Boris Johnson’s government was warned about such problems after striking his very own 2019 Brexit deal, which it is now proposing to unilaterally change in a move that critics say undermines Northern Ireland’s economic stability – and analysts say is vulnerable to a Commons rebellion.
Flash back to 2019, when the Brexit saga had just eaten up Theresa May’s premiership – and the patience of the British public. Boris Johnson had recently entered Downing Street promising to break the deadlock. The Northern Irish question was at the heart of the interminable wrangling between London and Brussels.
Hard Brexit – taking Britain out of the single market and customs union – was the only approach acceptable to most of the Conservative Party, and indeed to many of the 52 percent of voters who chose Leave in the 2016 referendum. But hard Brexit risked clashing headfirst into a pillar of the British constitutional arrangement, the Good Friday Agreement, which ended the Troubles in 1998 and guarantees no hard border between the UK and the Republic of Ireland.
The possibility of a no-deal Brexit necessitating a hard border was a Damoclean sword hanging over Northern Irish nationalists throughout the divorce talks saga. Johnson achieved his deal in October 2019 by plunging that sword into Northern Irish unionism – replacing the troubling prospect of a new border between Northern Ireland and the Irish Republic with the troubling reality of a new border between Northern Ireland and Great Britain.
The Northern Ireland Protocol keeps the province in the European single market for goods, meaning a customs border in the Irish Sea. This after Johnson told the Democratic Unionist Party (DUP) conference in 2018 that “no British Conservative government could or should sign up to any […] agreement” requiring any such frontier within the UK.
At the time, critics warned the deal would threaten Northern Irish unionists’ identity – notably Jonathan Powell, then PM Tony Blair’s negotiator for the Good Friday Agreement, who wrote a damning piece in the Irish Times warning that the Protocol was a big problem. Yet in the rest of the UK, Brexit fatigue meant this predicament was almost entirely ignored.
‘You can understand unionist outrage’
Flash forward to the present and the DUP is blocking the creation of a new power-sharing devolved government at the Northern Irish Assembly, Stormont, until its concerns about the Protocol are addressed. Truss cited this impasse at Stormont as the reason for the new bill when presenting it to the House of Commons.
“Powell is totally vindicated,” said Jonathan Tonge, a professor of politics at Liverpool University. “Johnson’s deal was a piece of political expediency, almost unsurpassed, by which he got Brexit done. But it’s a terrible deal, because it really does treat Northern Ireland as a place apart, and you can understand the unionist outrage. Johnson either didn’t read his own deal properly – or, more likely, he knew full well what he was doing and just thought he could renege on it later.”
The proposed legislation would try to remove the customs border problem with a new “green lane” and “red lane” for trade. Goods traded from Great Britain to stay in Northern Ireland go in the green lane and could move without customs checks. Goods sent from Great Britain to Northern Ireland for export to the Irish Republic or the rest of the EU go into the “red lane” and would remain subject to customs checks in Northern Ireland.
The other key plank of the bill would remove the European Court of Justice from its role adjudicating trade disputes relating to Northern Ireland. Instead, “independent arbitration” would resolve trade disputes; it is not clear what this would entail. A further meaningful change in the proposed legislation would give Northern Ireland the same tax breaks as the rest of the UK.
The EU reacted by underlining its position that the Northern Ireland Protocol is not up for renegotiation. A constant throughout the entire Brexit process is that Brussels, backed by an unusually united 27 member states, sees watertight protection of the single market’s integrity as sacrosanct – meaning it must have a rigorously controlled border.
Brussels’ approach is overkill, Tonge suggested: “I do understand the British government’s position; the idea that Great Britain to Northern Ireland so-called ‘exports’ will go into the Irish Republic and undermine the single market is fantasy,” he said. “If only the volume of British exports were that high! Most will stay in Northern Ireland in any case.
“And even Johnson’s government, even the DUP, don’t dispute the need for checks [at Northern Irish ports] on goods that go from Great Britain to Northern Ireland to be sent south of the border,” Tonge continued.
But as Jonathan Powell would no doubt point out, it was Johnson’s government that proposed shifting the customs border to the Irish Sea back in 2019 before formalising the move as soon as possible.
“At the end of the day, they’re the ones that signed this deal; therefore the British government is acting dishonourably in proposing to renege on it,” Tonge said.
Protocol good for business
When this unilateral action was merely a rumour, the EU prompted fears of a trade war with the UK last month, with EU Commission Vice President Maros Sefcovic saying the bloc would respond with “all measures at its disposal”.
Sefcovic struck a more measured tone after Truss’s announcement, saying its reaction will be “proportionate”. But any risk of a trade war brings back the spectre of uncertainty that troubled Northern Irish politics and business for more than three years until Johnson agreed the Protocol, which then came into place in January 2021.
Following that uncertainty, the Protocol has worked well from an economic perspective. Closer trade links with the EU have helped the Northern Irish economy “slightly outperform the UK average”, a report by the National Institute of Social and Economic Research found in May.
Hence the new Northern Irish First Minister, Sinn Fein’s Michelle O’Neill, framed her response to the new bill in economic terms: Boris Johnson is “bringing economic instability” and “jeopardising jobs”, she told journalists outside Stormont after Truss’s announcement.
Reneging on the Protocol “runs completely counter to the requests of business in Northern Ireland, which has been so consistently for certainty and stability”, observed Katy Hayward, a professor of political sociology at Queen’s University Belfast and a senior fellow at the UK in a Changing Europe think-tank. Johnson’s government is giving “no thought” to what its bill would mean “for Northern Irish trade and investment, and instead we just have this huge question mark over the legal situation for Northern Ireland as it stands”.
‘50/50’ whether bill will pass
However, there is also a huge question mark over whether the proposed legislation will get through parliament. The prime minister’s Commons majority is much bigger than those of his two immediate predecessors – but nothing like the impregnable numbers enjoyed by Margaret Thatcher and Tony Blair in their pomp. Despite Johnson’s purge of the Europhiles before the 2019 general elections, there are still numerous Tory MPs uneasy about the idea of reneging on international agreements and anything that hints at economic instability.
And transcending any ideological divides, much of the Conservative Party is in a restless mood after 148 MPs sided against Johnson in the no confidence motion on June 6 – a moment analysts say was likely the beginning of the end for the prime minister after Partygate destroyed his personal popularity.
“Johnson’s majority of 80 might sound great but it only needs 40 rebels to down you; that’s only about one-ninth of the party, given that every other party bar the DUP will oppose the government on this,” Tonge said. “There is a still a Remainer wing within the Conservative Party, even if it is operating in much-reduced circumstances. Aside from that, there will be a lot of anti-Johnson MPs who have no particular ideological view on the [Protocol] who will see this as a useful opportunity to put Johnson in further difficulties.”
Given those factors, it is about “50/50” whether the legislation will get through the Commons, Tonge said.