What are we to make of this morning’s report in the FT that the Government is preparing to table legislation that will allow it to unilaterally overrule the provisions of the Northern Irish Protocol?
From the source, we are probably safe venturing the conclusion that this isn’t something either Boris Johnson or Liz Truss wanted in the public domain; Peter Foster surely graces neither’s list of favoured journalists.
That alone is reason to give it more credit than we might otherwise. The Government has, after all, developed an unhappy habit of intermittently talking tough on Ulster but never following it up with the long-trailed triggering of Article 16.
A (spectre of a) special Bill to reassert Westminster’s jurisdiction over Northern Ireland is precisely the sort of red meat the Prime Minister has a track record of throwing out in times of trouble.
Whether or not one would actually materialise, or it would end up in the same file as the bridge from Scotland, is another question.
Regardless, if it does proceed this proposal would mark an escalation on London’s part.
Contrary to the spluttered objections of its critics, triggering Article 16 would not actually be ‘tearing up’ the Protocol. On the contrary, Article 16 is part of the Protocol. “Honour what you signed cuts both ways”; the EU cannot credibly claim it negotiated a set of safeguards but they must under no circumstances be actually used.
Passing fresh legislation, on the other hand, fits the charge. This doesn’t mean that ministers would necessarily use their powers to scrap the whole thing; enabling legislation would just as easily empower Truss, Brandon Lewis, or whomever else to make the sort of carefully-targeted interventions on grace periods that have comprised the Government’s strategy to date.
But even so, it would certainly elicit retaliatory action from Brussels, putting further pressure on the ports and threatening to exacerbate food supply issues just as the cost-of-living crisis is starting to bite in earnest.
So why pursue such a course without even triggering Article 16? Whitehall sources make two points. First, Article 16 does not provide for setting aside every problematic aspect of the Protocol; second, activating it ultimately puts the Government’s response at the mercy of a third-party mediation process.
Fresh statute, by contrast, would put any interventions on a much stronger legal (which is not the same as political) footing. Parliament is sovereign; it can legislate to override or resile from treaties if it so wishes.
As one Foreign Office source put it: the Government’s highest duties must be protecting the United Kingdom’s territorial integrity and upholding the Belfast Agreement, which is coming under mounting strain right now. The issue has, as feared, come to dominate the Assembly elections; loyalist disaffection with the peace process has yet to turn deadly, but might yet.
Ministers have, furthermore, been clear that the threshold for unilateral action was reached months ago.
They also point out that there are no parties in Northern Ireland prepared to defend the Protocol in toto; even the Alliance Party have been forced into am embarrassing retreat from their previous insistence on “rigorous implementation”.
However, neither they nor the nationalist parties have been pressed for much detail on what precisely they want to happen. If they accept that the Protocol needs to change, and the EU refuses to change it, the corollary is that, at some point, London takes action.
Which brings us brings us back to the question of whether or not this Bill will come to pass. As noted above, anybody who has followed this issue over the past couple of years will be forgiven for being cynical.
But small boats was another issue on which the Government has long talked loudly and carried a small stick; today we have the Rwanda policy. Perhaps this ministry has not quite so thoroughly exhausted its capacity for action as it usually appears.