British government threatens to renege on NI Protocol
2 August 2021
Brexit minister Lord Frost making a statement to members of the House of Lords
The British government has set out its proposals for the “reform” of the NI Protocol which regulates trade between GB, Northern Ireland and the EU. Under its terms Northern Ireland has a special status that allows businesses in the region access to both the GB and EU markets. The protocol requires checks to be made at ports in order to prevent goods – that don’t meet minimum standards - entering the Single Market from GB. This arrangement – which has been dubbed the Irish Sea border - has caused disruption to trade between GB and Northern Ireland (the extent of which is often exaggerated) and political discord within the unionist population of the north.
These problems are the jumping off point for a bid by British government to renegotiate the NI Protocol. Its proposals for resolving these issues were set out in a statement by the Brexit minister Lord Frost to Parliament on the 21 July and in an accompanying 28-page document (Command Paper). Following an introduction that reiterates (and exaggerates) all the difficulties associated with the protocol it goes on to make five proposals.
(1) The removal of all checks on goods going from Great Britain to Northern Ireland where a business has self-certified that its products are not intended for onward distribution or use in the EU.
(2) The creation of a “full dual regulatory regime” to manage divergent standards between the EU and the UK after Brexit, that would allow goods with differing EU and UK standards to circulate freely side by side within Northern Ireland.
(3) The removal of “export declarations” on goods travelling from Northern Ireland to Great Britain.
(4) The amendment of Article 10 of the protocol which requires any UK government subsidy decision that potentially affects goods trade in Northern Ireland to comply with EU state aid rules.
(5) The removal of the right of the EU and its Court of Justice to enforce major elements of the protocol.
In addition to this the British government requested a “standstill” in the operation of the protocol and the end of the current legal action taken by the EU against the UK over its earlier unilateral actions. The expectation is that this will allow space for negotiations to take place over the summer months the with the hope of achieving a new agreement by October.
There is large element of dishonesty in the case presented by the British government. It cannot be claimed that the problems with the protocol were unforeseen. The operation of the protocol was set out in great detail in the text of the agreement. Moreover, the issues that have now come to the fore and are cause for complaint, had already been highlighted in analysis reports produced by the British government at the time. It is also dishonest to present the above proposals as reforms when in reality they amount to the abolition of the NI Protocol. There are critical elements that the EU will certainly not accept. It won’t allow a free for all on the Irish border. It won’t outsource the enforcement of regulations to a third party. And it won’t remove the ECJ as the arbiter of EU law.
The proposals but forward by the British might be an opening gambit but there are unlikely to be the framework for an agreement. The restrained response of the EU to these latest moves would suggest that this is also their view. European Commission president Ursula von der Leyen stated that the EU would "continue to be creative and flexible within the Protocol framework. But we will not renegotiate." Maros Sefcovic, the Commission's interlocuter on Brexit, made clear that the EU will "continue to seek creative solutions" on trade between Britain and Northern Ireland — but stressed it "will not agree to a renegotiation of the protocol."
The EU has also been making moves – again holding out the prospect of an agreement on rules on movements of animals and food products that would eliminate the bulk of the current checks. It has also published two plans in relation to the protocol. One on medicines which would ensure the continued supply of medicines from Great Britain to Northern Ireland. And another on food and animals that covers guide dogs, tagging of livestock, taking animals to agriculture shows in GB and permitting the re-import of EU food products which have been stored in GB. Significantly, it has also suspended the legal action it had commenced against the UK. All this points towards further negotiations and new agreements.
On the basis of its critique of the NI Protocol the next logical step by the British Government should have been to activate Article 16 and unilaterally make the changes that it believes are so essential. Instead, it states that, while the conditions for Article 16 have been met, it will delay activation in the hope that the issues can be resolved through negotiation. There is a big disconnect between the rhetoric and the action that follows on from it. This has been the case throughout the Brexit process, which went from Teresa May talking up the prospects of a No Deal to Boris Johnson signing up to an even worse agreement than that negotiated by his predecessor.
The idea of a No Deal option has probably been the most abiding myth of Brexit and it is being rehashed once again in the claim that, by ruling it out, MPs weakened the British Government’s negotiating position and were responsible for the problems associated with the NI Protocol. However, this ignores the reality of negotiations in which the EU had much greater economic and political weight than the UK. Under those conditions the outcome was always going to be one that favoured the EU. The No Deal outcome dreamed of by Brexiteers would have been ruinous to the UK economy and was never an option that was ever seriously contemplated by either May or Johnson. That Boris Johnson signed up to a deal that flew in the face of so much that he had said previously, particularly in relation to Northern Ireland, showed how desperate he was to get an agreement and - in the words of the Conservatives general election winning slogan - to “Get Brexit Done”. The problem for the British government is that, despite its claims, Brexit isn’t done. The Withdrawal Agreement, and the accompanying NI Protocol, only mitigate the damage. Many issues - as evidenced by the wrangling over the Protocol - remain unresolved.
While the British government may never have been sincere about honouring agreements its room for manoeuvre is limited. As a third-party country it is in an even weaker position in relation to the EU than when it was a member. It is locked into to an agreement that makes it subject to severe sanctions if it reneges. Also, there is no international support for its position if it were to renege. The Biden administration has ruled out any US-UK trade deal in these circumstances. Indeed, the UK has already received a rare diplomatic rebuke from the US in response to earlier unilateral moves on the Protocol. It is notable that at the G7 Conference the British government had dialled down the rhetoric and that a recent extension of Protocol grace periods was achieved through a formal request to the EU.
The UK has called for negotiations to resolve the issues around the NI Protocol. Yet, under the conditions that prevail, the outcome will not be one that satisfies the demands of Brexiteers. What is most likely to come out of negotiations is an EU-UK agreement on veterinary and food standards that will do away with many of the current checks while keeping the broad framework of the protocol in place.
Such an outcome is reflective of the relative weight of the parties that are negotiating. More fundamentally it demonstrates the degree to which the UK economy is both integrated into - and also dependent upon - the EU. The dominant sectors of British capital still require access to the Single Market. While the Withdrawal Agreement addressed this in regard to manufacturing and agriculture it did nothing for the biggest portion of the UK economy that consists of services and finance. It also did nothing (indeed it went backwards) in relation to access to European labour. The pressing need to deal with these unresolved issues points to further negotiations and more agreements that bring the UK - if not fully back into the Single Market and Customs Union - then into closer alignment.
There is a huge contradiction between this and the main thrust of Brexit which is divergence. Divergence - in reality an all-out assault on the working class - is the Brexiteer prescription for the revival of Britain. It would see the complete deregulation of the UK economy and a race to the bottom in terms of employment rights, food standards and environmental protections. Yet such a vision is shown to be delusionary when confronted with material reality. We have seen this most recently in the problems experienced by UK food retailers in relation to shortages (illustrated by photographs of empty shelves). Industry bodies say this is the result of a shortage of European lorry drivers and demand that restrictions on recruitment be relaxed. However, they meet with resistance from a Conservative Government that has aligned its policies with the anti-immigrant sentiment that was channelled most effectively during the Brexit referendum and the 2019 General Election.
The example above illustrates the broader problem for a Conversative party which seeks to address the needs of big capital while holding together the pro-Brexit electoral coalition that maintains it in government. This is why the British government, in its dealings with the EU, appears to be zig zagging all over the place, from the confrontational to the conciliatory and from issuing threats to reaching agreements. This is a pattern that is likely to repeat itself as the British government - for political reasons - continues to pick fights but, due to its relative weakness and pressure from its own capitalist class, backs off and enters into agreements which are largely on terms set by the EU. The contradictions between the economics and politics of Brexit are why it will continue to be on the boil for the foreseeable future. It will not fully recede as an issue until it has been discredited and politically defeated. Yet, even in these early days of Brexit, in the Withdrawal Agreement and the NI Protocol, and in the current round of negotiations, we can see that it is already in retreat.
While Brexit has revealed the relative weakness of the UK, it has exposed the absolute weakness of the various parties in Ireland. If Ireland occupied (and continues to occupy) a prominent position in negotiations between the EU and UK it is not due to its economic and political weight but to the degree to which it can be used to shape their outcome. For the EU, the problems thrown up by the Irish border, have provided useful leverage. The EU approach to Brexit is not based on solidarity with Ireland. Its overriding priority is the defence of the Single Market and the maintenance of the EU as a political bloc. That the EU would endorse an arrangement (the NI Protocol) that puts the Irish economy at significant risk shows where its priorities lie.
What is even more telling is that the Irish government itself not only supports this but actually proposed it has a means of achieving a Withdrawal Agreement. It should be remembered that it was the Southport Summit between Leo Varadkar and Boris Johnson in October 2019 that paved the way for the replacement of the Irish Backstop – an arrangement that, by keeping the UK aligned with EU customs and regulations, would have avoided many of the problems that have arisen. Now the Irish government, and nationalist parties across the island, are now reduced to appealing to the British government to honour agreements it is already in the process of reneging upon. However, this should not be a surprise as it is the default position on a whole range of issues in British-Irish relations. The widely held assumption that the Irish government - and Irish nationalism more broadly - is making the running when it comes to Brexit really doesn’t stand up to any scrutiny.
The other myth that has been dispelled by the NI Protocol is the supposed influence of Unionists over the British government. Despite the pro-union rhetoric from Conservatives – most notably from Boris Johnson in his quest speech the DUP’s annual conference – they went ahead and made an agreement that conferred a distinct status on the northern state. To get Brexit done – and to achieve an overriding political imperative for the Conservative party - the British government was prepared to squash unionist concerns. This does not mean that the British are pushing the unionists out of the UK or weakening partition. Not at all. All the indications are that the British want to maintain partition and continue to exercise control over the north of Ireland. There is a position for Irish unionists in the UK but it is one, as it always has been, that is subordinate to the will of the British ruling class.
The contradiction within unionism - of being dependent on the British government but in opposition to one of its central policies – is playing out in the crisis with the DUP as it struggles to adjust to the reality of the NI Protocol. Its former leader Arlene Foster was doomed by her willingness to make it work - however begrudgingly – while her short-lived successor Edwin Poots failed to win any concessions. He claimed to have assurances from the British government that there would be moves on the NI Protocol that would represent “wins” for unionism. However, what was announced recently by the government falls well short of this. The current DUP leader Jeffrey Donaldson has sought to balance between seeking reforms of the protocol and an outright obstructionist approach that would eventually collapse the Stormont institutions. In response to the British government statement on the protocol Donaldson set out a list of seven tests by which the DUP would judge any agreement with the EU. These tests – which amount to the abolition of the protocol – are unlikely to be satisfied.
Despite the vocal opposition of unionist parties to the NI Protocol this has not translated into a mass movement on the streets. Recent protests over the issue were poorly attended. This suggests that while unionists may not like the protocol, they do not see it as an existential threat to the union. This perspective has been echoed in comments by Ian Marshall - ex-president of the Ulster Farmers Union, former Seanad member, and new recruit to the UUP - that the protocol that is “here to stay” and that it offers opportunities to businesses in the north. This is also the position of the Alliance party which represents many of those “small u” unionists who voted against Brexit and are turned off by bigotry of the DUP.
However, within unionism it is usually the most right-wing faction that makes the running. The DUP have been spooked by the rise in the polls of Jim Allister’s TUV and are seeking shore up their right flank. With the protocol likely to remain under any new UK-EU agreement the party will be under pressure from within and without to adopt a more obstructionist approach. This means greater instability within unionism and also more broadly for the devolved institutions.
What is absent from all this noise around the NI Protocol is an independent working-class perspective. The parties and organisations that have traditionally represented workers have all adapted to Brexit to one degree or another. In Britain, the Labour party under the leadership of Starmer, the has made a complete about turn and is now fully in support of the hardest version of Brexit possible. It is the same with the trade unions who are leading into the idea that restrictions on migrant workers are a means to secure the interests of their members. Although, in truth, this is hardly a recent development. The slogan of “British jobs for British workers”. raised over ten years ago by Unite in the oil refinery disputes, was a clear precursor of Brexit what and was to follow. In Ireland the trade unions are silent on the issue of Brexit – either quietly tucking in behind the Irish government position or, in the north, declaring their neutrality so as not to antagonise the unionists.
The absence of a distinct
class perspective has given a free hand to force hostile to labour to shape
the discussion around Brexit. It is only through a challenge to the
existing leaderships, and the development of a working-class programme
for Europe, that the current dynamics of Brexit can be altered. This
means a rejection of the retreat into nationalism represented by Brexit
and also of the phoney “solidarity” expoused by the EU. This
is the approach that is best articulated by the historic - and still relevant
- slogan for “A United Socialist States of Europe”.