The decision by the House of Commons to support Boris Johnson’s plans to enable the unilateral scrapping of parts of the Northern Ireland protocol has put the Government in Dublin on notice that it needs to develop a clear strategy to deal with a complete breakdown of relations between the EU and the UK.
There is still some way to go before the Bill setting the protocol aside becomes law, and there are bound to be further twists and turns in the drama, but the bottom line is that there is now a real prospect that the dispute could end up in a trade war. If that happens, the Government will have to make a choice about whether its priority is the avoidance of a “hard border” on the island of Ireland or continued membership of the EU single market.
Back in 2019, when the prospect of a no-deal Brexit loomed large, the Government came under strong pressure from the European Commission to spell out what it would do to protect the single market in that doomsday scenario. It managed through nimble diplomatic footwork to avoid giving an answer.
The deal between the EU and the UK at the end of 2019, which included the protocol, appeared to have resolved the issue without the Government having to show its hand. Now there is a real danger that the issue could come back to haunt everybody within the next 12 months.
Former taoiseach Bertie Ahern addressed the question at a recent seminar at the Institute of International and European Affairs. “If this was to continue on down the slippery slope and the [UK] legislation is passed, the EU will say that they have to see the single market implemented, and if there is no land border then it has to be in ports. I shudder to think — and we saw what the delays were in the harbours and other ports two years ago when there were limited checks,” he said.
This is why the Government needs to work out in detail how it will respond if the EU scraps the Trade Co-operation Agreement with the UK in the event of the protocol Bill becoming law. During the long-drawn-out Brexit negotiations, the Government persuaded its EU partners that the avoidance of a land border on the island was the over-riding national priority in order to protect the Belfast Agreement. It didn’t budge from that position during the talks and neither did the EU.
Now a cold assessment is required about where the long-term interests of this State really lie. Being excluded from the EU single market is simply not an option. Membership of the EU has transformed the fortunes of the country over the past half century and the future prosperity of the people of this country requires full access to the single market.
However unpalatable it may appear, plans will have to be drawn up, if they have not been already, about how customs checks on goods moving across the Border can be implemented in the most unobtrusive way possible. That is the only way to protect unfettered access to the single market.
If the UK government unilaterally sets aside the protocol, the EU will have no choice but to protect the single market by excluding Northern Ireland, or alternatively the entire island of Ireland, from access. Either course would do serious damage to this country but preparations should be made now for a worst-case scenario, as it could happen by the end of this year.
There is nothing inevitable about this coming to pass. The protocol Bill may be amended or delayed indefinitely in the British parliament or Boris Johnson could be removed from office. A significant number of Conservative MPs are appalled about the course of action being pursued by Johnson, and that could have a significant impact on the future of the Bill.
During the Commons debate last Monday, nobody put it better than Johnson’s predecessor Theresa May. “This Bill is not, in my view, legal in international law, it will not achieve its aims and it will diminish the standing of the United Kingdom in the eyes of the world, and I cannot support it,” she said.
She also reminded Johnson that unilateral action would not persuade the EU to change its stance. “As I discovered after I had faced a no-confidence vote, despite having won that no-confidence vote, they then start to ask themselves, ‘Well, is it really worth negotiating with these people in government? Because will they actually be there in any period of time?’” she said.
Another opponent of the Bill, the widely respected former Northern Secretary Julian Smith, said the reality was that “once this Bill has been dragged through the Lords and the courts, and EU responses and reprisals, compromise will ultimately be needed.”
While some form of compromise is the obvious way out for everybody, the danger is that Johnson will stick to his hard line approach to shore up his leadership by keeping his right-wing MPs on side. If that happens, the EU patience could quickly evaporate and the trade war nobody wants could become a reality.