Why the hardline Tory Brexiteers won’t get their way on Northern Ireland

The European Research Group is a body of around 70 to 80 Conservative backbench MPs with a wider penumbra of sympathisers in government, including the likes of Jacob Rees-Mogg, Suella Braverman and Michael Gove. It is chaired by Mark Francois, and Steve Baker is another prominent spokesperson for it. They regard themselves as the Spartan warriors of the Eurosceptic movement. On a good day and on the right issue it could wipe out the government’s present majority, and frequently did so when Theresa May and Boris Johnson were running minority governments and trying to get their various Brexit deals through the Commons before the December 2019 election.

Since then, the opportunities for Brexit mischief have subsided, but the operation of the Northern Ireland protocol has opened up a new front. The ERG want it scrapped, and, superficially, they have some strong arguments.

Like the Democratic Unionist Party in Northern Ireland, they object to the way the economic border between Great Britain and Northern Ireland is operating, adding apparently petty trade rules and unneeded frictions to the formerly free movement of goods and services across the Irish Sea between two parts of the UK. The most obvious results have been empty shelves in Northern Irish supermarkets, and businesses in the province complaining that they cannot get supplies from Britain economically because of rules designed to protect the EU single market. An archetypal example would be the shipment of rose bushes for nurseries in England or Scotland to garden centres in Northern Ireland – the soil they come with is regarded as a phytosanitary risk to the EU form a third country, and pathogens could, theoretically, enter the EU via the famously open border between Northern Ireland (outside the EU) and Ireland (inside the EU), whence they could spread from Portugal to Bulgaria. The British say the risks are small and not with the damage to trade. The EU disagrees.

Recently the first minister of Northern Ireland, Arlene Foster, made her feelings known personally to the EU Commission vice-president responsible for overseeing the protocol Maros Sefcovic, during a joint UK-EU meeting. (Her deputy first minister, Michelle O’Neill of Sunn Fein does not share her view). The EU’s brief invocation of Article 16 of the protocol, providing for an emergency suspension during the vaccine crisis caused a great deal of distress in Northern Ireland. The ERG says that maladroit moment provides a “unique political opportunity” to have the protocol rescinded. They propose a system of “mutual enforcement”, as used to exist when the UK was in the EU single market.

The ERG, and the DUP, have little chance of getting their way, however, for at least three sound reasons.

First, despite their membership and the predominantly Eurosceptic attitude of the present Conservative Party, the Labour Party can be safely relied on by ministers to protect them from any formal move to renounce the Northern Ireland protocol unilaterally. As with the lockdown sceptics, there are simply not enough Tory MPs prepared to defy the prime minister to make a decisive difference.

Second, the protocol is an integral part of the Brexit deal, and most of the ERG voted for it. Aside from that aspect of inconsistency, as an international treaty the protocol cannot be renounced without consequences. The 1970 Vienna protocol on international agreements might permit a nation to exit treaty obligations, but it would mean the unravelling of much of the withdrawal agreement and the trade and cooperation agreement, ie the whole Brexit deal. That would mean retaliatory punitive tariffs and sanctions on British trade, which would do harm than good in Northern Ireland. It would also imply a hard border in Ireland, which would break the Good Friday Agreement. More to the point, it all might presage a return to the Troubles. Britain’s relations with the Biden White House would also be shredded in such a calamitous series of developments, and with it the prospect of a US free trade deal.

The fact is that no one has found any other way to reconcile hard Brexit and the Good Friday Agreement because it doesn’t exist. If it did, it would be in place today. The “mutual enforcement” the ERG propose means the EU granting the UK some advantages of EU single market membership but without any of the obligations or safeguards. The EU has said time and again it is unacceptable. The ERG reply that the EU reopened the withdrawal agreement before, and will talk if they have to. This is not certain.

Third, there is no cross-community consensus in Northern Ireland itself to scrap the protocol. Under the Brexit deal, the future of the protocol depends either way on cross-party agreement, with periodic parliamentary votes, and Sinn Fein will not end the protocol and impose a hard border with Ireland. Politically, it is impossible to make any substantial change to the status quo. Indeed, there is some chance events might move in the other direction, to a referendum on a united Ireland and Northern Ireland moving back inside the EU.

Soon, in any case, the ERG will be heartened to have Lord (David) Frost taking over the management of Brexit from Gove. As the victor of the Brexit talks, the ERG should have some faith in his abilities to take a hard line. Perhaps he will find a way to get the Tesco lorries and the rose bushes flowing smoothly into Tyrone and Armagh, but it is by no means clear how. Soon, in April and June, the grace periods around some rules not yet enforced will end. The chances are things will get worse before they get better, if they do. The ERG will have plenty to occupy themselves in the coming months. A Brexit bonus, then, for them at least.