Leaders all over the European Union may be scratching their heads wondering about the motives for Boris Johnson’s behaviour over a Protocol on Ireland, that he was happy with only six months ago.
He is now saying he will
“do whatever it takes to protect the territorial integrity of the UK”
from the Protocol. This is notwithstanding the fact that, in Article 1 of the Protocol, which he agreed in 2019, Boris Johnson himself accepted that
“The Protocol respects the territorial integrity of the United Kingdom”.
He is claiming, variously, that he did not understand the meaning of what he signed, or that he was coerced by time pressure into it.
Every one of the EU laws, which under the Protocol will continue to apply in Northern Ireland, including the EU Customs Code of 2013,were made when the UK was a voting member of the EU.
So there is no basis for claiming the UK did not understand what these laws meant. They were involved in making them! You will search for a long time in the British press for an acknowledgement of that.
What of the argument that the UK was under time pressure when it agreed the Protocol?
The problem was that a UK government, of which Boris Johnson was a member, triggered the Article 50 process before it had settled in its own mind the sort of Brexit it wanted.
The EU would have been willing to extend the two year period, but Boris Johnson rejected that. So if the UK put itself under pressure, the problem was of its own making.
In fact, I believe the UK knew fully what it was doing at every stage, and was guided by short term domestic political considerations, and deliberately ignored everything else. This was its motivation, both when it signed up to the Protocol initially, and when it attempted to renege on it, a year or so later.
Boris Johnson’s motives were to keep the Conservative Party in power, and to keep Scotland in the Union .
He agreed to the Protocol, in the first case, because he wanted to “get Brexit done” and to use that achievement as his platform in the December 2019 General Election. The detail did not matter. This tactic worked magnificently for him, as we know.
CONFRONTATION WITH EU PAYS DIVIDENDS FOR BRITISH P.M
Keeping up a confrontation with the EU continues to work for him up to the present time. It has helped him make gains in this year’s local and by elections. As long as UK relations with the EU are hostile, there will a big vote bonus for the Conservatives in Leave supporting regions.
Confrontation with the EU also helps with keeping Scotland in the Union.
The row about the Protocol allows the EU to be portrayed as petty, bureaucratic, and obsessed with detail. Of course, this is precisely the detail that enables 27 different countries to have one set of rules. Doing business in Europe would be much more bureaucratic, if each of the 27 countries had its own separate set of rules, on all the any matters listed in the Protocol.
The more onerous EU border controls are made to appear, the more are Scots made to fear the costs for Scotland of a customs border between it and England, something that would follow from Scottish membership of a Customs Union with EU.
So the stance of Boris Johnson on the Protocol is power politics in a raw form, and it is unlikely to change in the near term.
EU RESPONSE……A COURT CASE BETTER THAN AN ECONOMIC WAR
What happens now?
The EU has already initiated legal proceedings against the UK. Unless the UK speedily agrees to implement the Protocol, this legal action will be intensified.
There is a worry that the case might drag on for a long time. But a long court case, which eventually yielded the right result, would be better than an Economic War.
How might the case develop?
The Withdrawal Treaty says that disputes may be referred to an Arbitration Panel of three independent persons. This Panel must announce its decision within 12 months of its appointment.
The legal issues are fairly simple, so the decision might be quick.
There are provisions for a fine to be imposed on any party in breach of its obligations.
It could be up to two years before a fine could actually be imposed. Boris Johnson might even want to drag the whole thing out until after a UK General Election. He might even like to get a second referendum on Scottish independence over with, while the case is still undecided.
USE OF ARTICLE 16 KICKS CAN DOWN THE ROAD
Another possibility is that the UK might trigger article 16 of the Protocol. Article 16 allows for safeguard measures where there are
“serious economic, societal or environmental difficulties , that are likely to persist”
But such measures, and any EU counter measures, would have to be restricted in their scope and duration according to Article 16. Article 16 does not provide for amendments to the Protocol. So using Article 16 would only kick the can down the road. It would solve nothing.
Vice President Sefcovic of the European Commission has raised the possibility of trade sanctions against the UK for breach of the Protocol.
Such sanctions would be designed to persuade the UK to come back into compliance with its Treaty obligations. The EU could impose tariffs or quotas on sectors of the UK economy which depend particularly on EU markets for exports
Of course, the UK might then retaliate with tariffs and quotas of its own. While these UK sanctions could hit Irish agricultural exports, they would also disrupt the economy of Northern Ireland. On balance, I think UK would seek other targets. But, in the end, everyone would lose…..a lot.
The best immediate option for the EU is to concentrate on its court case.
I am confident the Panel would find that the UK is obliged to implement the Protocol as it signed it . It would find that the plain words in the Protocol means what they say.
A finding from an independent Panel would be more influential, with British and Northern Irish public opinion, than any number of statements from EU leaders.
This is why I believe the court case is the best course to follow.
Let us not go back to the trade politics of the 1930’s!
BUT EXISTENTIAL ISSUES ARE AT STAKE
That said, if the court case does not lead to action by the UK to implement the agreed Protocol, either in its present form or as amended by agreement, a trade war between the EU and the UK will eventually take place, with sanctions and counter sanctions. This is inevitable because the EU can only continue to exist if Treaties are respected and acted upon. The EU itself is a Treaty based organisation. So this is literally an existential question for the EU. Without respect for Treaties, there is no EU.
Some historians believe it to be a fixed goal of British policy to maintain division and a balance of power in continental Europe. The very existence of a European Union is, in this analysis, a threat to British security. Some Brexiteers are not satisfied with taking the UK out of the EU. They will not say so publicly, but they would like the EU to break up. This is well understood in Paris and Berlin.
So the argument about the Protocol is about much more than Northern Ireland. It is about the future of Europe, and this is not a struggle in which Ireland will remain on the sidelines.