Liz Truss has behaved appallingly over the Northern Ireland protocol – but the EU side is no better

The timing of the European Commission’s legal action over the Northern Ireland protocol is interesting. It has launched four new infringement proceedings against the UK, in the middle of the Conservative leadership election campaign.

The commission must know that it will be impossible for either of the two candidates to back away from the aggressive position set out by Boris Johnson and Liz Truss, and that the most likely effect of its counter-aggression will be to lock both Truss and Rishi Sunak into a position from which either will find it hard to retreat as prime minister.

The commission is not naive about British politics, and you don’t have to be that well versed in the politics of Brexit within the Tory party to know that this dispute will play out at the simplest level. The grassroots members of the party, like most people in Great Britain, know little about the detail of the rules designed to keep Northern Ireland half in and half out of the EU single market. Most Tories believe that the EU is trying to undermine support for Brexit by punishing the UK, and they support tearing up a treaty if doing so is necessary to assert the primacy of UK interests.

Thus Sunak, although he was reported to be sceptical when he was chancellor about the Northern Ireland Protocol Bill that will unilaterally rewrite parts of the treaty, has reiterated his support for it. As chancellor, he could let it be known that he had his doubts about a trade war with the EU, because he wanted to reassure the markets that he was not a fool. As a Tory leadership candidate, however, it is essential that he prepares to send in the gunboats to escort Great British sausages to Northern Irish supermarkets.

It is all very silly, which is why it is so reprehensible that the EU should choose this moment to make matters worse, instead of adopting the dignified pose of waiting for the contest to be over, without too many hostages being surrendered to fortune, and then resuming negotiations from a position on the moral high ground.

The commission’s legal actions are about trivial things anyway, which makes them look as if they are designed simply to provoke rather than to engage in matters of substance. Especially as they invoke the Court of Justice of the EU – a red rag to Brexiteers – instead of the dispute settlement procedure in the treaty itself.

As Raoul Ruparel, who was Theresa May’s adviser on the EU, says, the timing of this announcement makes it “even harder for either leadership candidate to signal any compromise”, while the “focus on pointless stuff” makes the hardliners’ case for them.

I am sorry to come over all “third way” on this, but I think both sides have behaved appallingly in trying to resolve the problems with the status of Northern Ireland. The UK government may have behaved worse, by threatening to tear up a treaty it negotiated and signed just two and a half years ago, but it could argue that it has been driven to it by the intransigence of the EU, which has failed to show any flexibility on the issue. The EU side has taken a legalistic, small-print attitude while issuing sanctimonious platitudes about the Belfast/Good Friday Agreement – as if the unionist parties’ opposition to the protocol had nothing to do with maintaining the delicate balance of that agreement.

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Today’s announcement makes it explicit that the EU does not care about the withdrawal of unionists from devolved government in Northern Ireland, and is not interested in helping to reverse it. It is as if the EU thinks that no one in Northern Ireland could possibly support the UK reneging on the treaty containing the protocol. It is true that unilaterally rewriting a treaty is unusual, and it is remarkable that Truss, who took over responsibility for the protocol negotiations from David Frost when he resigned from the cabinet, has managed to persuade the civil service that the Northern Ireland Protocol Bill is compatible with international law.

But that ought to be irrelevant to the issue of substance, which is how to make Brexit work in a way that satisfies both communities in Northern Ireland. It is tragic that EU leaders don’t seem interested in this question, and are more interested in provoking the Tory leadership candidates into adopting the most hardline position possible, presumably so that they can pose to their domestic audiences as the defenders of EU law against the unreasonable British.