Remainers won’t like it but Boris Johnson and Lord Frost are getting the better of the EU

The headlines in some of the British press are not exactly conducive to constructive negotiations. The Daily Telegraph said: “EU surrenders over British bangers sold in Northern Ireland”. The Daily Mail called it a “major climbdown”. But they are not wrong.

What is striking, reading the EU’s proposals published late last night for improving the operation of the Northern Ireland protocol, is how much they reflect how Boris Johnson always expected the rules to work. The plans suggest reducing the number of checks on goods going from the rest of the UK to Northern Ireland, by widening the list of things that will be assumed not to be “at risk” of going on to the Republic of Ireland – and therefore into the EU. A lorry containing a load of food destined for a Northern Irish supermarket will need a single food safety certificate instead of hundreds. And the EU will lift the restrictions on medicines.

All these are roughly what Johnson had in mind during the last election campaign, when he insisted that his Brexit deal did not mean a border in the Irish Sea. He has often been quoted for his emphatic statement in an interview with Sophy Ridge on Sky News during that campaign, when he said: “There is no question of there being checks on goods going NI-GB or GB-NI.” He is less often quoted for the qualification he added a few sentences later: “The only checks that there would be would be if something was coming from GB via Northern Ireland and was going on to the Republic, then there might be checks at the border into Northern Ireland.”

If we were being generous to the prime minister, his original statement could be taken to mean “no additional checks” – because there were some food safety rules applying to the island of Ireland before – “apart from on the few goods destined for the Republic”. But if Johnson was guilty of sweeping simplification, the EU has been just as guilty of unnecessary complication, by insisting on checks on goods that are plainly intended for Northern Irish supermarkets.

So, although the language of “surrender” and “climbdown” is unhelpful, it is also true, in that the EU has now accepted the position that the UK government set out in the first place. There are details, such as the movement of pets, that are still to be sorted out, but it looks as if the two sides could easily reach an agreement that would allow almost all goods to circulate in effect “unfettered” within the UK, including Northern Ireland.

The problem is that the UK side has moved the goalposts, in that it is now insisting that the protocol be rewritten to remove any trace of jurisdiction of the European Court of Justice in Northern Ireland. Whereas the pragmatic adjustments to the rules for the movement of goods can be done under the protocol, the demand to exclude the European Court means that the protocol itself, which is part of a treaty, would need to be renegotiated.

This UK demand was made only in July, when Lord Frost, the Brexit minister, published his command paper on the future of the protocol. The reason for wanting the change is obscure. The public case made by Frost is that he agreed to a role for the court only under duress, under pressure to sign a deal to get Britain out of the EU. Yet it seems obvious that if Northern Ireland remains part of the EU internal market for some purposes, for those purposes it would remain subject to EU law.

As an EU official said yesterday: “There’s a reason why negotiations on the protocol lasted three and a half years because these are difficult issues. And we think that we reached the only workable solution.”

A continuing role for the European Court hasn’t caused any practical problems and isn’t likely to do so for the foreseeable future, so there have been many attempts to guess at Frost and Boris Johnson’s real motive for trying to tear up the deal they agreed a mere two years ago.

One is that they want to keep the Brexit war going, because it rallies the Leaver coalition among the electorate. That seems a little too elaborate, especially as it requires the UK government to admit that it agreed to something that – from a Leaver point of view – it shouldn’t have done. Another explanation is that it is a negotiating position designed to put pressure on the EU side, to be dropped when a compromise has been achieved on the issues that actually matter. The shift in the EU’s position yesterday certainly seems to vindicate Frost’s tactic of talking tough and ratcheting up the UK’s demands – including the threat of suspending the protocol by invoking its emergency procedure in article 16.

But there is a third possibility, which is that Johnson and Frost are worried that the protocol is becoming so unpopular with unionists in Northern Ireland that there is a risk the assembly will vote against it in 2024, under the consent mechanism designed to give the people of Northern Ireland a say over its future. Although most parties in the assembly are pro-protocol, and are likely to continue to be after the elections next year, public opinion in Northern Ireland is evenly divided. It may take a big symbolic change, as well as pragmatic compromise to the rules on the movement of goods, to hold the line.

Whatever the reasons for the UK position, Johnson and Frost have already got most of what they wanted – which Remainers ought to welcome, because short of reversing Brexit, this pragmatic compromise is in the best interests of the people of Northern Ireland.

John Rentoul is hosting a Brexit ‘ask me anything’ from 1pm on Friday 15 October. Join him here