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Boris Johnson’s true purpose in NI protocol dispute is wrapped in contradictions

London Letter: Why embark on a long legislative process instead of using article 16?

The news that Boris Johnson will face no further fines over lockdown-breaking parties in Downing Street will be infuriating for his many detractors. But if it strengthens his political position it could be good news for those who want to avoid an escalation of Britain's dispute with the European Union over the Northern Ireland protocol.

Johnson presented himself at once as a liberal, sophisticated unionist and as a crude sovereigntist

As so often during the Brexit negotiations, the prime minister's true purpose remains swathed in mystery and contradictions as he sends out mixed signals every time he talks about the protocol. In his 2,200-word essay in the Belfast Telegraph, Johnson presented himself at once as a liberal, sophisticated unionist and as a crude sovereigntist who thinks nothing of ripping up an international treaty.

Reaching back to Peter Brooke’s declaration that Britain had “no selfish strategic or economic interest” in Northern Ireland, Johnson said there was not “some perfect constitutional clockwork version” of how the union should be.

“Northern Ireland has always been a place in its own right, in which governance has been contested, broken, reimagined and carefully nurtured,” he wrote.

“Those arrangements continue to evolve. And far better, I think, is the Northern Ireland of today in which people look any way they want (north-south, east-west, or both) – depending on their identity, and their family, and their economic interests. In today’s debates about Brexit and the protocol, let us embrace that hybridity. Let us make it work.”

Rip its heart out

The protocol was designed as an expression of that hybridity, a bespoke arrangement to reflect the complexity of Northern Ireland’s constitutional circumstances. Fifty-three of the 90 representatives elected to the Assembly this month favour keeping the protocol, a fact that in part reflects the fact that most voters in Northern Ireland rejected Brexit in the 2016 referendum.

Johnson says he is not seeking to scrap the protocol, but the proposals outlined by foreign secretary Liz Truss would rip the heart out of it. In his Belfast Telegraph article Johnson dismissed almost as a detail the fact that he negotiated the protocol, signed it and won an election promising to implement it.

One of the unanswered questions around this week’s events at Westminster is why Johnson is introducing legislation to take unilateral action rather than triggering article 16 of the protocol. If a Bill is introduced next month, it could be next year before it becomes law, even if the Lords do not block it.

Article 16 is limited in scope but it is legal because it is within the terms of the treaty and it is quick, requiring no legislation. If the practical effects of the protocol need to be addressed urgently, why wait?

Intriguingly, the Conservative Eurosceptics in the European Research Group (ERG) are content to wait for the legislation to snake its way through Westminster. So too is the DUP, which has slipped back into the embrace of the Tories who betrayed them in 2019 and is committed to staying out of the Stormont institutions until the protocol is fixed.

Safety mechanism

For the ERG, the risk of triggering article 16 is that after some retaliation from Brussels, Johnson would make peace on the basis of technical solutions to the protocol’s practical problems. A lengthy legislative process is a guard against the prime minister agreeing to the wrong kind of deal.

For Johnson, the risk of triggering article 16 is that the EU’s retaliatory measures could follow quickly afterwards, bringing forward the kind of clarifying moment he specialises in avoiding. A lengthy legislative process postpones both his own unilateral action and the EU’s response, allowing the protocol to continue to be half-implemented.

For now, the ERG's leverage over Johnson is diminished

Johnson’s perilous position within his own party gave the ERG the whip hand, not only over him but over potential leadership candidates such as Truss. The Metropolitan Police’s decision to wrap up its investigation into Partygate lifts the biggest immediate shadow over the prime minister’s leadership, making it seem more likely than before that he will lead his party into the next general election, possibly next year.

The publication next week of Sue Gray’s report into the Downing Street parties could plunge the prime minister back into danger, and any number of traps may await him in the future. But for now, the ERG’s leverage over Johnson is diminished, something that should offer comfort to the liberal unionist angel sitting on his other shoulder.