Why the Northern Ireland protocol deadlock means Brexit still won’t be ‘done’

Britain celebrates two momentous anniversaries next month. The first, broadly consensual and popular, will be the platinum jubilee of the Queen’s accession. There will be cakes, street parties, bank holidays and the pubs will be open later.

A few weeks later, on 23 June, the sixth anniversary of the Brexit referendum will be marked in more subdued and different ways. The date Nigel Farage hailed as Britain’s Independence Day can at least unite the nation on one particular proposition: that Brexit hasn’t, after all this time, been “done”.

The government seems to think that fresh legislation to override the Northern Ireland protocol, which allows for checks on some goods moving between Great Britain and Northern Ireland, will finally get this bit of Brexit done. However, the chances look  slim.

The politics of all this is as familiar as it is complicated, tied in with the ancient Irish question, and an incipient civil war for the soul of the Conservative Party. The immediate question is whether the government will go ahead with the latest threat to abandon its endless talks with the EU over the protocol, and scrap the agreed checks on goods. Ministers are understandably concerned about the future of the Northern Ireland Executive, the Belfast Good Friday Agreement and peace on the island of Ireland. They are frustrated with the lack of progress from the talks with the EU. The EU is also annoyed by the British seeking to renegotiate or renege on an international treaty solemnly entered into.

We have been here before. A few weeks ago there was talk that the Queen’s Speech would contain a bill to override the EU-UK Brexit deal, including the NI protocol. Then the idea was dropped when the speech was delivered on Tuesday, but now it has been resurrected by Liz Truss. The attorney general, Suella Braverman, also says she has had advice that such a move would be lawful, in contrast to past legal advice.

A pattern has emerged. In 2020 the UK Internal Market Bill was published with much the same goal in mind as the new bill. It too met a hostile reception in the EU, and the former attorney general, Geoffrey Fox, ruled it would breach international law. The government admitted as much, in fact. The Northern Ireland Secretary, Brandon Lewis, famously told the Commons in September 2020: “Yes, this does break international law in a very specific and limited way. We’re taking the powers to disapply the EU law concept of direct effect … in a certain very tightly-defined circumstance.”

In due course – after pressure from Dublin, Brussels and Washington – the offending clauses in the Internal Market Bill were dropped. The talks between Michael Gove and Maros Sefcovic, the EU vice-president in charge of Brexit, reconvened and yielded concessions on medicines, animal health and chilled meats. The “sausage wars” were over.

Since then, under the tutelage of Lord (David) Frost and Liz Truss there have been more talks and periodic hints from London that Article 16 of the NI protocol would be triggered (allowing for a suspension of certain rules pending negotiations), as well as menacing hints about a more dramatic unilateral abrogation of the NIP and therefore the Brexit treaty.

The pattern throughout these twists and turns is the same: the EU, backed by the US, has refused to renegotiate the NI protocol, and the British have abandoned threats to act unilaterally.

Will this time be different? It could be, because the talks have been played out, and there is a limit to how often the UK can try and postpone implementing the full NI protocol. However, the risks are also heightened right now, but the threat of legal action and trade sanctions from the EU carry more than their usual considerable force because Britain is on the verge of recession, and the effect would be disastrous on British manufacturing and agriculture.

A trade war would damage both sides, a classic lose-lose, but because Europe is a proportionately more important market to Britain than the UK is to Europe then the balance of advantage lies with the EU. On the other hand, the UK could disrupt the supply of goods to Ireland in a kind of soft blockade, though it would infuriate President Biden.

As crises go, this will be a slow-motion one. Any fresh legislation will take many months to get through parliament, and be subject to legal challenge in UK, European and international courts (and the EU has already initiated legal action after a previous threat. The case is paused). It might not even be passed by the next election if the House of Lords exercises its power of delay.

At some point, if the politicians and diplomats fail to do so, some court somewhere will need to state the inconvenient truth that Brexit itself is incompatible with the spirit or letter of the 1998 Belfast Good Friday Agreement and/or the British Act of Union of 1801. But in any case, an economic border on the island of Ireland would remain unacceptable to some, and a border down the Irish Sea between Great Britain and Northern Ireland unacceptable to others. Violence may ensue in either case. There is the nasty feeling that whichever side, loyalist or Republican, that threatens the most violence will prevail so far as where the economic border will be placed.

About the one thing that all concerned can be sure of is that, on current form, Brexit will not be “done” by the end of this parliament, or the decade. Just like the Irish question, into which Brexit has sadly and inevitably morphed.