EU pragmatism suggests the Northern Ireland protocol problems with Brexit can be solved

The European Commission’s decision yesterday to pause its legal action against the UK is a welcome sign that, behind the rhetoric accusing Boris Johnson of diplomatic hooliganism, the EU is prepared to engage in pragmatic talks to solve the Northern Ireland trade problems.

Off the record, EU officials express their frustration with Johnson and David Frost, his chief negotiator, for pretending that it has come as a bolt from the blue to discover that the protocol they signed might have committed them to things to which they did not want to be committed. One was quoted by Politico last week as saying: “It would foster an atmosphere of compromise if the British could just stop being so disingenuous and, frankly, irritating at every turn.”

In my view, there has been a bit of play-acting on both sides. The EU side has been inflexible in interpreting the protocol, and has thrown up its hands in horror when the UK side pointed this out. Their response has been, in effect: “You signed it; you’ve got to stick to it.” But in fact, the protocol set up a mechanism – the joint committee – by which the detailed implementation would be negotiated, and it is the progress of those negotiations about which the UK side has complained.

We have heard a lot about how Johnson signed up to the protocol in haste expecting to sort out the problems of how it would work in practice later, but something similar is also true of the EU side. The protocol set out the general principles: that Northern Ireland would simultaneously be an integral part of the UK and also, for the purposes of keeping an open border with the Republic of Ireland, part of the EU single market. That would mean checks on goods going from the rest of the UK to Northern Ireland if they were likely to go on to the republic.

Johnson was guilty of assuming that those checks would be so “light touch” no one would notice them; but the EU was guilty of assuming that they would offer absolute protection to the single market without imposing costs on the people of Northern Ireland.

To take the example of sausages, the EU side has insisted that all meat must be frozen if it goes from the rest of the UK to Northern Ireland supermarkets, because that is the rule for any meat entering the EU from a country that doesn’t have an SPS (sanitary and phytosanitary) agreement with the EU. That does not seem reasonable to me. I found when I took part in a question and answer session with The Independent’s readers last week that it is a common view that the EU is entitled to insist on its interpretation of the rules regardless of the effect they would have on the people of Northern Ireland.

It is true that Johnson has not helped his case by allowing the suspicion to take hold that he is happy to stoke an endless Brexit war as a way of reinforcing his support among the half of the population who supported Leave. Some commentators say it would have been better if the British government had said to the EU something like: “Now that we are trying to implement the protocol we have discovered some problems and we would be grateful for your help in sorting them out.”

In fact, that is roughly what the command paper published last week says. Indeed, it comes close to admitting that Johnson accepted some parts of the protocol only because he was desperate to get Brexit done: “The UK ... only agreed to it [a role for the European Court of Justice] in the protocol because of the very specific circumstances of that negotiation.”

That is the part of the protocol that the UK is now asking to renegotiate, but we should be clear about two things. One is that this is separate from the negotiations about specific issues such as sausages, which is happening within the protocol. The other is that the audience that matters is not the UK-wide pro-Brexit electorate, but the unionist population in Northern Ireland.

The Democratic Unionist Party, which has played Brexit badly (and allowed itself to be suckered by Johnson), is now collapsing because of opposition to the protocol among unionist voters. Given that the protocol requires the consent of Northern Ireland, this is the real threat to the Good Friday/Belfast settlement. The reason Johnson has gone beyond wanting to negotiate the implementation of the protocol to asking to change the protocol itself is more to do, I think, with keeping unionists on board than it is to do with Brexiteers in the rest of the UK.

The immediate priority, though, is to resolve the problems that threaten the free flow of goods from Great Britain to Northern Ireland. The obvious way of dealing with the sausage issue would be to negotiate an SPS agreement between the EU and the UK. The obstacle to that so far has been that the EU insists that the UK should commit to following EU rules whenever they change. But it should be possible to reach a compromise.

It may be that Johnson’s version of Brexit is unworkable, and there are many people who zealously want that to be true. But it seems possible that it can be made to work after a fashion, and the consequences for Northern Ireland of it not working should not be entertained lightly. Yesterday’s pragmatism and flexibility from the European Commission suggests that there may be a way through after all.