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Newton Emerson: NI Protocol hasn’t gone away you know

Upcoming changes to EU legislation will have to incorporated into Northern Ireland law

I regret to inform you the Northern Ireland protocol story is still happening, although it is now a debate the UK is having entirely with itself.

As recently as last month, British prime minister Boris Johnson was officially threatening to trigger article 16. Two weeks ago, Downing Street let it be known the invasion of Ukraine has rendered this impractical, certainly before the DUP deadline of the Stormont election in May.

It seemed a truce had been declared, until British foreign secretary Liz Truss turned the ceasefire into a weapon.

Last Saturday, it was reported she had written to Johnson proposing a "unilateral green lane" in the sea border, allowing intra-UK trade to enter Northern Ireland with minimal paperwork. This is the gist of last year's British government "command paper", the subject of negotiations with Brussels.

A Westminster committee heard the Treasury commenced a process last month to replace the term 'United Kingdom' with 'Great Britain' in customs legislation

It looked as if Truss wanted to press on and dare the EU to trigger article 16 instead. This would be a rational strategy. The protocol is absurdly over-engineered, as a green channel fait accompli would prove. Article 16's power is exaggerated and controversies over it have made it difficult to use. Would the EU deploy it against an ally at a time of war? Truss might hope not. Yet Brussels is sanctioning Poland over changes to its judicial system, even as that EU member state fills up with refugees.

Any appearance of a cunning British plan was shattered on Monday.  A Westminster committee heard the Treasury commenced a process last month to replace the term “United Kingdom” with “Great Britain” in customs legislation. An official was at pains to claim this was a minor exercise but that only revealed the Treasury knew it was dynamite. The protocol states Northern Ireland remains part of the UK customs territory – considered a major EU concession. Why was that being thrown away?

Conservative MP Steve Baker, chairman of the European Research Group, was on the committee and unsubtly threatened to depose Johnson if the change was not reversed. Truss criticised the Treasury, under chancellor Rishi Sunak, and had its action immediately halted. She and Sunak are the favourites to replace Johnson.

On Tuesday, David Frost, Truss’s predecessor as Brexit negotiator, raised the stakes again. He said the UK government should actively pursue a “no” vote when Stormont gets its first chance to approve the protocol in 2024, calling an Assembly election beforehand if necessary.

Supposed audience

Unionists, the prop and supposed audience for these Tory theatrics, have been staging their own drama. On Monday the appeal court in Belfast threw out a case brought by leading UUP, DUP and TUV politicians claiming the protocol is unconstitutional because it supersedes the 1800 Act of Union and breaches the Belfast Agreement’s consent principle.

Northern Ireland itself supersedes the Act of Union, such evolution is the basis of the UK’s “unwritten” constitution and the consent principle only applies to a border poll – as unionists insisted when nationalists claimed it applied to Brexit.

The protocol's democratic deficit has also been acknowledged in Brussels and Dublin but it remains strikingly uncontentious in Belfast

So judges rejected the case on all grounds. A further appeal will be made to the supreme court, with DUP leader Jeffrey Donaldson making this a point in his election campaign, while Brexiteer unionists and loyalists proclaim the Belfast Agreement is dead.

This must seem arcane and preposterous to most voters. The legal challenge has been the centrepiece of unionist anti-protocol action, yet media and public interest in it petered out a year ago. Notably, the UUP is distancing itself from the case.

The real threat to the protocol lies elsewhere. Another Westminster committee published a report on Tuesday into upcoming EU legislation. It found 42 policy initiatives in the European Commission’s 2022 work programme, all of which will or may have to be rubber-stamped into Northern Ireland law under the protocol.

The committee, comprising Conservative, Labour and SNP MPs, called this "untenable" – a "motorway" of legislation "without meaningful input from the people of Northern Ireland". It called on the British government to secure change in negotiations.

The protocol’s democratic deficit has also been acknowledged in Brussels and Dublin but it remains strikingly uncontentious in Belfast, where attention is on the practicalities and symbolism of trade.

Tokenistic proposals

Perhaps people are accustomed to Westminster making decisions over their heads. Proposals to address the deficit have focused on restoring the North's MEPs, which is obviously tokenistic, as the European Parliament is not a proper legislature.

If the "motorway" delivered only technical updates to single market law it would be widely accepted. That is a brave hope, however. The work programme includes extending the EU's emissions trading scheme to vehicles and homes. Two-thirds of Northern Ireland's homes are heated by oil, the highest rate in western Europe. Restrictions on cutting VAT on fuel are the basis of another row suddenly in the offing.

Even if agreement is reached around the movement of goods, the protocol remains at the mercy of events, unforeseen controversies – and those who would use events to stir controversy up.