Boris Johnson has once again decided to stir up the waters of Brexit to camouflage his internal problems. One week after 41% of Conservative MPs voted in favor of the Prime Minister’s dismissal, irritated by the Downing Street party scandal during confinement, the British Government has begun the parliamentary process of approving the new law which will amend key parts of the Northern Ireland Protocol. The text was key to moving forward with the UK’s withdrawal agreement from the EU in 2019, and it turned out to be the most delicate and complex issue in the negotiations. With this decision, London intends to sweep away a large part of the customs controls in the area with a stroke of the pen and eliminates the supervisory role in the region of the Court of Justice of the EU (CJEU).
The publication of the new legal draft officially consummates a threat put forward by the Johnson government for months, and prepares the exit ramp for what could be a tough confrontation with Brussels, which could even lead to a trade war. In just 24 hours, the British Executive may end up facing seven rivals at the same time: all the Conservative deputies furious at the idea that their Government skips international legality (former Prime Minister Theresa May would be in this group); the independent members of the House of Lords, willing to delay and amend the text until it has nothing to do with the original; business associations in Northern Ireland, who want technical improvements to the protocol, but not annulment of a text that gives them the best of both worlds, with access to the EU Internal Market and the UK; the Labor opposition, prepared to question harshly in the House of Commons the legality of the decision; and, finally, a good number of activist lawyers ready to do battle in court.
“Restore the balance”
“The only thing we intend with this law is to restore the delicate balance that the Good Friday Agreement imposed on Northern Ireland,” Johnson told LBC radio station early in the morning. “It would be a brutally overreaction on the part of the EU to launch a trade war now in the face of corrections that seek to eliminate excessive bureaucracy,” the British prime minister warned.
With this movement, Johnson intends to satisfy the internal current of the Conservative Party that brought him to power three years ago and that can help him survive at the moment: the European Studies Group (ERG), which brings together the hard wing of the eurosceptic deputies who made Brexit their banner of war. Despite the attempts of Johnson himself and his ministers to sugarcoat the decision, and above all, to defend its legality, it is clear that the changes proposed in the new law go as far as possible to satisfy the Tories more belligerent with the EU.
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The Protocol kept Northern Ireland within the Community Internal Market. This avoided having to impose customs or sanitary controls in the middle of the island, which would create the impression of a new border and put the peace achieved in 1998 at risk. Since it came into force, bureaucratic problems arose, but above all political ones. The demarcation between the UK and the EU was symbolically established in the Irish Sea. Result: many of the products originating in Great Britain, whose final destination was Northern Ireland, were affected by new customs procedures and health supervision that made internal trade between regions of the United Kingdom more expensive and more difficult. Brussels knew how to understand these unexpected technical problems, and proposed solutions that managed to reduce merchandise controls by 80%. They did not convince the Johnson government, which has gone much further with the changes in the new law.
“It will end an untenable situation where Northern Ireland citizens were treated differently from the rest of the UK, and it will protect the supremacy of our courts and our territorial integrity,” said the British Foreign Secretary. , Liz Truss. She is the main negotiator with Brussels, and first thing in the morning she informed her community counterpart, Maros Sefcovic, that the new law was beginning its parliamentary journey. Truss has insisted that the Johnson government “remains willing to resolve the situation through talks with the EU”, but she simultaneously accuses the community institutions of refusing to make changes to the protocol.
Sefcovic, Vice President of the European Commission, has acknowledged the decision via Twitter, while issuing a warning about its seriousness: “The EU has always paid the greatest attention to the impact of Brexit on Northern Ireland, and has offered practical solutions. A unilateral decision damages mutual trust and is a formula for uncertainty”, he pointed out.
Spoke to @trussliz earlier where she informed me of 🇬🇧legislation to unilaterally disapply the Protocol. The EU has always paid utmost attention to the impact Brexit has on NI, offering workable solutions. Unilateral action is damaging to mutual trust & a formula for uncertainty. pic.twitter.com/CWqFSxy0GC
— Maroš Šefčovič🇪🇺 (@MarosSefcovic) June 13, 2022
Firstly, the text creates two access routes for products traveling from Great Britain to Northern Ireland. A “green corridor”, for those whose final destination is Northern Ireland, which would be free of customs and health controls. And another “red corridor” for those who are addressed to the Republic of Ireland, to which the rules of the protocol would be imposed.
“I think the EU is being uncompromising in its approach, but the UK government should insist on convincing through diplomacy and negotiations,” said Tony Danker, director general of the CBI, the UK’s largest employers’ association. “It is quite incendiary to unilaterally bypass an international obligation, and return to inflamed political rhetoric, when all these proposals for green or red corridors could be addressed by the technical teams of both parties,” Danker claimed.
Secondly, the new law would allow Northern Irish companies to freely choose the quality standards of their products, to adapt to Community or British regulations.
Third, tax harmonization would be imposed between Northern Ireland and the rest of the United Kingdom. In other words, if London decided to reduce its value added tax (VAT), it would also do so in Northern Ireland, despite being within the EU Internal Market. If the Johnson government also wanted to offer aid and subsidies to certain companies, it could do so without the consent of Brussels.
And finally, the most incendiary provision of the new law: the Court of Justice of the EU would lose its supervisory role of the rules of the Internal Market in Northern Irish territory. For the Eurosceptic hard wing of the Conservatives, it was the main workhorse. They did not tolerate the idea of a “foreign” court interfering in British territory, even though the CJEU had above all a technical and guarantor role. Nothing to do with a supposed usurpation of sovereignty or jurisdiction.
London is now proposing an arbitration mechanism to replace the function of the court, a solution similar to the one adopted in the Free Trade Agreement negotiated by both parties, which avoided a hard Brexit.
The Johnson administration’s move raises the threat of a trade war with the EU, and it is about to show any benefit. The Democratic Unionist Party (DUP) maintains the autonomous government institutions blocked. He blames protocol, a new “betrayal” by London that brings closer the possibility of a reunification of Ireland, for his internal problems. In early May, Sinn Féin republicans, for decades the political arm of the IRA terrorist organization, won a historic election victory in Northern Ireland. As established in the Good Friday Agreement, the party with the most votes occupies the chair of chief minister, but the position of deputy chief minister corresponds to the second party. It was the way to ensure an equitable distribution of power and a balance between Republicans and Unionists, or from another somewhat less current perspective, between Protestants and Catholics.
Despite the DUP’s outspoken opposition to the protocol, their view is not the predominant one in Northern Ireland. A majority of its regional deputies, 52 out of 90, have sent a letter to Johnson in which he accuses him of going against, with his decision, “the wishes of the majority of Northern Irish companies and citizens.” The signatories of the text are members of Sinn Féin, the Labor and Social Democratic Party and the Alliance. This last formation, the third most voted in May, is not defined by either side.
The Johnson government has tried to win the commitment of the unionist formation that it will collaborate again, help elect a new president of the Autonomous Assembly and appoint a deputy chief minister, in exchange for Downing Street promoting in Parliament the law that scraps the Northern Ireland Protocol. To please the DUP would also be to please the Eurosceptics, staunch defenders of the territorial integrity of the United Kingdom. But not even that commitment is clear, because the DUP is well aware that the law has a process ahead of it that can last a year, and many parliamentary and judicial obstacles ahead. “We want to see how the legal text advances in Parliament before making a decision,” said party leader Jeffrey Donaldson. In the House of Lords, many of its members are already sharpening their knives to stop a text that they consider tremendously damaging to the United Kingdom’s international reputation.