The Protocol: a good moment to do a deal?

16 Sep 2022 Nick Garbutt    Last updated: 16 Sep 2022

Pic: Unsplash

The death of Queen Elizabeth II has dominated news channels to such an extent that two important developments this week did not get all the attention they deserved.

The first was the re-taking of at least  2,300 square miles of territory and the rout of Russian forces in eastern Ukraine which brings hope that conflict will not drag on forever, which in turn suggests that the energy crisis may also have a finite timeline. 
The second was the European Union’s latest initiative to end the Brexit impasse which, to reasonable people of goodwill at least, contains the seeds of a resolution. 
The two apparently separate issues are linked. Neither Britain nor the EU dare risk disunity and the catastrophe of a trade war at a time of conflict. And Britain with its new Prime Minister cannot enter a conflict it would surely lose during an economic crisis. 
With Truss due to visit the USA next week and Joe Biden unwilling to do any trade deal with the UK whilst the protocol issue remains unresolved the EU’s offer provides an opportunity which she would be foolish to ignore. 
It holds the promise to reduce checks on goods crossing the Irish Sea to a near “invisible manner” involving just “a couple of lorries” a day.
These would be made only “when there is a reasonable suspicion of illegal trade, smuggling, illegal drugs, dangerous toys or poisoned food”, according to Maroš Šefčovič, the EU’s Chief Brexit negotiator. 
Of course the small print needs to be agreed but on the face of it, it does look as if the proposal would mean virtually no difference between the UK’s demand for “no checks” and the EU’s offer of “minimum checks, done in an invisible manner”
We’ll have to wait and see – diplomacy is on hold and won’t resume until the 10-day period of mourning following the queen’s death is over. 
The Šefčovič plan will be very familiar to Tory Eurosceptics because it sounds very much like one of their own. They used to claim that the border between Great Britain and Northern Ireland would be made invisible if the EU had real-time access to data on goods entering the country to enable officials to stop only suspicious vehicles.
In fact the UK claims it now has precisely that system but Brussels has yet to use it.
Notwithstanding the delay imposed by the queen’s death the intervention is timely. The EU launched seven legal actions against the UK for abandoning some of the checks mandated in the protocol, with a deadline of Thursday 15 September for a formal response. And with no formal talks in six months it was looking more and more likely that the UK would act unilaterally over the protocol. The deadline came and went with no restoration of checks. But as the UK provided no explanation we will have to wait and see what that means. 
It had been suggested the UK would use this deadline to trigger article 16 to scrap all barriers, including the bar on the sale of trees, potato seeds and other farm produce from Great Britain in Northern Ireland. That’s not happened either. 
For some any sort of checks that involve a border down the Irish Sea are anathema. The protocol they say needs to be replaced, full stop. 
And the trouble is that the EU is not going to agree to that, especially as it has now proposed a reasonable-sounding compromise.  
As the cost-of-living crisis, the strains on the health service and the long periods without government increase their toll; as Northern Ireland suffers the consequences of not having a long-term budget and managing on 95% of last year’s money; and as parties protest a protocol that to date has worked in our favour, so too will opposition be more and more difficult to sustain. 
It will be especially difficult for the DUP to sustain its uncompromising position as its voters get more and more concerned about the crisis in health and the cost of living and rising interests and everything else than they are about the both real and mostly imaginary problems with “the border down the Irish Sea.” 
In its manifesto for this year’s General Election the DUP called for the Protocol to be replaced and even then says that new arrangements must pass seven tests. 
The question for today is whether those demands are achievable and whilst it is fair to say that Truss owes the ERG big time for securing her election and whilst she has appointed two of that faction to the NIO the political environment has completely changed since the manifesto was drawn up. 
The British electorate as a whole will not view kindly a government prepared to subject them to further economic hardship over an issue they do not understand whose proponents are primarily political representative of a minority opinion amongst a tiny fraction of the population. 
Truss is, if anything, a pragmatist, who has proved more than capable of switching political opinions when it suits her. 
In Northern Ireland politicians of all parties should have learned the importance of pragmatism by now. Even the treaty that led to its creation was a fudge, open to different interpretations, and so too was the peace process and the resulting Good Friday Agreement (GFA). 
The GFA is often mentioned in the context of the current impasse but it is rarely spelled out why it has a bearing. 
It is important to remember that this internationally binding treaty, subsequently endorsed by referenda on both sides of the border has three strands: the first set up the Executive and Assembly and Civic Forum, neither of which are currently in operation. 
The second created an Irish dimension to the governance of Northern Ireland The North–South institutions (the North–South Ministerial Council (NSMC) and the North–South Implementation Bodies) encourage co-operation that benefits both Northern Ireland and the Republic of Ireland. Under this strand there are now 142 separate bodies of co-operation on the island covering issues as diverse as transport, health, tourism and waterways.
The third covers east/west relations. The British–Irish Council and the British–Irish Intergovernmental Conference were set up to encourage co-operation and develop good relations between Britain and Ireland. These are forums where the two Governments can discuss Reserved Matters – ie those not devolved to Stormont – these include financial services, international trade and civil aviation.  
In addition the Agreement incorporates the European Convention of Human Rights, giving that court the power to overrule Assembly legislation which is in breach of the convention. It also set up the Northern Ireland Human Rights Commission.
Therefore the governance of Northern Ireland is unlike governance in any other part of the UK, that is not a matter of opinion but one of fact demonstrated by an international treaty underpinned by referenda. 
By ignoring that reality and frustrating the workings of the GFA, the DUP is playing a high-risk game, one it is unlikely to win. Now would be the moment to extract the gains secured by the EU’s offer, claim victory and return to government. 


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