16th May 2022
Here are, to begin with, a couple of truths about the Northern Irish Protocol – both of which will be familiar to those who are hostile to or critical of Brexit.
First, the protocol was negotiated, signed and implemented by the Boris Johnson government – who even had changed government policy from Theresa May’s previous backstop.
Indeed, Johnson even went to the electorate for a mandate for this ‘oven-ready’ deal.
He and his government owns the protocol.
Second, triggering Article 16 will not do what the more excited media and political supporters of the government say (and perhaps think) it will do.
As this blog has previously set out, triggering the provision only means there will be talks and possible remedial measures within a narrow compass.
All because a thing can be triggered, it doesn’t make it weapon.
But.
There are other truths which those hostile to or critical of Brexit may not so easily want to admit.
For a third truth is that there is an issue not of black-letter law, but of – for want of a better word – application of the protocol.
This point is deftly summarised in a recent thread from Hilary Benn, who is hardly a fire-breathing Brexiter:
6. The key point about the Protocol is that it talks about “goods at risk” of entering the EU from Northern Ireland. This term was never defined and the task was left to the Joint Committee. I will return to this point later.
— Hilary Benn (@hilarybennmp) May 13, 2022
Of course, the European Union – including Ireland – are right to be concerned about maintaining the integrity of the single market.
Yet, it is less clear that that goods going to Northern Ireland from across the Irish Sea put the single market at risk – or at least at sufficient risk so as to justify the current regime of checks.
And ‘proportionality’ and ‘subsidiarity’ are, after all, concepts drawn from European Union law and policy.
In other words – without breaking (or amending) the Northern Irish protocol, a great deal of the commercial – and political friction – could be allayed – by a less strict (or more realistic) approach to concepts such as ‘at risk’.
Just because there are rules, they do not need a maximalist interpretation.
And fourth, and as this blog has averred before, Northern Irish politics do require there to be consent from both the unionist and nationalist communities.
Overall majorities are not enough.
Of course, the Democratic Unionist Party has only itself to blame for supporting Brexit – and the Johnson government – what else did they think would happen?
(And why the Democratic Unionist Party supported Brexit is a genuine mystery of the Brexit story.)
But the the practical political problem is that the protocol appears not to be supported by any elected unionist politicians.
You may think they should support the protocol – and you may be dismissive of them for not doing so – but the need for consent from both communities cannot be waved away.
So: there is a problem – of the Prime Minister’s own making and for which triggering Article 16 will not – by itself – solve.
But it is also a problem that needs to be considered flexibly and sensitively.
As this blog has said many times, not all problems have solutions.
Yet there is sometimes no alternative to seeing if there is a way forward – and such attempts should be given a chance.
It is just unlikely that a solution will come from the current government with its current bombastic silliness and confrontational gesturing.
The attitude of this government is a problem that can be solved – and as soon as possible.
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