Constraints and consequences of formal tactics

If we take it at its word, the British government has two main objectives in its latest confrontation with the EU. The first is to make bigger changes to the protocol on Ireland/Northern Ireland than the EU is currently willing or able to make. The second is to change the protocol (with or without EU agreement) to satisfy the DUP enough to end its current power-sharing veto in Northern Ireland.

What the government lacked before, it has now. It has proven to be a useful partner for the EU in the recent crisis caused by Russia’s invasion of Ukraine. It is of interest to EU Member States affected by the 1998 Good Friday (Belfast) Agreement, which the Protocol aims to protect. He convincingly captured both the stakes and the sense of urgency.

The EU, on the other hand, sees these challenges as further proof of the need to “uphold the rule of law and respect international obligations”. He points to the “potential to be explored” in his proposals on the protocol, hinting that his red lines might have fuzzy edges. For the British government, however, it is time to make a decisive decision. But what?

This could trigger Article 16 of the Protocol, which would mean limited measures for unilateral action. But it would be difficult to identify anything specific that “fixes” the Protocol that can be done unilaterally. The more ambitious these measures are, the more they could lead to an overhaul of trade to and from Northern Ireland

Two-thirds of companies have adapted to the new post-protocol commercial provisions (albeit within the framework of its partial implementation). Throwing the whole regime in the air for the benefit of the 8% who are still experiencing “significant” difficulties would be difficult to justify unless chaos is wanted. Thus, the greater the scope of the measures, the more likely they are to encounter legal challenges or to “rebalance” EU countermeasures.

Alternatively, the UK government could have an adjustment to the EU Withdrawal Act (2018) to allow itself to override all or part of the protocol in due course. It would involve new primary legislation, and all that goes with it – including a long and bumpy ride through Parliament. It would also put him directly at odds with the EU, given that such a law would effectively breach their Withdrawal Agreement.

Some suggest it could set aside its obligations under the Protocol through emergency legislation, perhaps arguing that there has been a fundamental change in circumstances. However, given that the Vienna Convention requires these circumstances to be irrelevant to the justification of the Agreement in the first place, this route seems tricky and unlikely.

Another course of action would be to keep the rules in place but simply not enforce them. NI Agriculture Minister Edwin Poots made such a decision himself in February when he ordered officials in his department to stop performing checks and checks on goods entering NI from the Britain. The order was in the High Court in Belfast the next day and deemed dubious. The checks continued as well as the legal wrangling.

So it’s complicated and the sovereign government’s options are limited. The first – as you may have already understood – is the risk of legal challenges. The government does not have a good track record of defending some of its most irregular Brexit process plans in court. Getting ensnared in legal proceedings may add discredit to the judiciary in the minds of some people, but it would be of little use to the government.

The second constraint is time. It is difficult to envision any immediate practical benefits to any action or announcement the government might make. Indeed, the most direct impact will be the opposite of the certainty and stability that NI businesses crave.

The third constraint is reaction. The response in Northern Ireland will be intense and divided. The UK Government’s action which goes against the expressed wishes of the nationalist and other parties (holding 53 of the 90 seats in the Assembly) is uncomfortable with the requirement that it exercise its sovereign power there with “rigorous impartiality”, in the words of the 1998 Accord Act itself.

Further overseas, the US government is watching closely. He has made it clear that he sees the Protocol as fundamental to protecting the 1998 Agreement. Ignoring the Protocol risks damaging prospects for a UK-US trade deal – which is why Conor Burns and Lord Frost took the trouble to travel to Washington in person last week.

And what could be the reaction of the EU? The first border problem posed by the removal of the Protocol would not be on Irish lands but in English waters. It is not necessary for there to be a suspension or termination of the trade and cooperation agreement or an accumulation of customs duties to see rigorously enforced border checks and controls having effects further afield. domestically and on the shelves.

The EU’s response must be proportionate. There can be a deliberate, almost defiant composure. It could relaunch the infringement procedure it started the last time the UK breached the protocol, or launch the consultation or arbitration dispute resolution mechanisms.

But the more the UK plays back and forth with the threat of non-implementation as a tool, the less it can be trusted. It’s not free. The end point (sooner or later) will have to be a UK-EU deal. Northern Ireland cannot survive a perpetual state of UK-EU conflict and legal uncertainty. It is not possible to crumple, scrap or ignore international agreements and obligations without consequence.

There is a striking parallel between the tactics of the British government and that of the DUP: a willingness to break the law to prove the seriousness of your demands. But no amount of fiery rhetoric or brave/reckless action can change fundamental realities. Your neighbors are not moving. You will have to learn to live with them. Setting fire to the fence may send a message, but little good can grow from the scorched earth.

By Katy Hayward, UK Senior Fellow in a Changing Europe.

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