Johnson likes to talk tough but usually collapses at the end. In any case, Taoiseach Martin told the PM there would be a robust response if he ever did. This could be a suspension or termination of the trade deal, which would hit the UK very hard. The EU are prepared to use a bigger stick.
But the NIP row is going to rumble on. So, it's with this in mind that I read a couple of interesting articles this week. First of all, Tom McTague at The Atlantic writes a thoughtful piece that both sides need to calm things down because good relationships are needed to avoid destabilising Northern Ireland:
"And yet even if Brexit—and the specific form of Brexit that Britain has pursued since 2016—lies at the root of this crisis (which is true), it does not necessarily follow that London is wrong about the current threat to stability in Northern Ireland, or that it is wrong to try to combat this threat. It can be true both that Johnson is an untrustworthy and irresponsible leader who has made the situation worse and that the deal he signed (which he claimed was great and won an election to ratify) really does threaten the very peace settlement in Northern Ireland that it was meant to protect. What is more, if this is the case, the EU must share some responsibility for the mess, for the deal was made as much in Europe as in Britain."
He goes on to say that Johnson isn't seeking to "reopen the fundamental question of where the new border is placed but to reduce the scale of its impact, to make it palatable to Northern Irish unionists."
McTague doesn't reach any conclusion although he does say we are headed back to square one because Britain thinks the EU only move under pressure and the EU don't trust Johnson or Frost.
I think we are back to square one. The Irish trilemma is still unresolved but perhaps reduced to a more simple dilemma which is this: How you can have any kind of border and a stable Northern Ireland? I don't think you can.
Next, professor of political science Brendan O'Leary of the University of Pennsylvania has another good. albeit slightly legalistic and provocative piece for the Brexit Unit at Dublin City University: Three Great Lies amid the Perfidy over the Protocol.
The first 'lie' is this: "that Her Majesty’s Government negotiated and intended to implement the Protocol in good faith, and would have done so but for the EU’s 'legal purism' in its roll-out. This ill-considered phrasing unintentionally implies that the UK specializes in legal impurity."
The second is that the DUP ever believed in all the 'alternative technologies' to manage the land border. The truth, according to O'Leary, is that Unionists always wanted a hard border and that has been their aim all along whatever they say in public.
The third is the biggest, he says. It's the claim that the protocol "violates the principle of consent embedded in the Good Friday Agreement of 1998 (which they never endorsed)."
He goes on to explain his opinion (which looks pretty good to me). O'Leary says:
"The law on these matters is clear. The consent principle in the Good Friday Agreement applies solely to the transfer of sovereignty over Northern Ireland. Whether Northern Ireland re-unifies with Ireland, or remains in the UK, is to be decided by the people of Northern Ireland in a referendum. A simple majority will suffice, as stated three times in the Good Friday Agreement."
The notion that the 'cross-community consent' procedures set out in the Good Friday Agreement applies to any of the trade matters in the NI protocol is firmly rejected.
"These procedures apply solely to the existing powers of the Assembly and its Executive, as defined in the Northern Ireland Act (1998), or in subsequent amendments to that act. No constitutional, legal, or even conventional requirement of cross-community consent is required for the matters related to the protocol. That is because the functions addressed in the protocol–mostly customs, EU single market regulation, and VAT—are not Northern Assembly or Executive functions, under the GFA, or the Northern Ireland Act (1998), or the treaty annexed to the GFA. They are Westminster functions. The consociational [sic] consent mechanisms apply solely to powers within the competence of the Northern institutions. Through the petition procedure unionists can require that a proposed bill become subject to cross-community consent, but that petition does not apply to non-devolved functions."
So, the suggestion that the NIP somehow falls foul of the GFA is not supported. The UK government doesn't need consent of any kind to implement the measures in the protocol.
None of this goes the smallest way to resolving the border problem and I honestly cannot see a solution that would satisfy either community in the long run - and for obvious reasons.
Having the single market laid the foundation for the GFA. If you remove the foundation any building is at constant risk of falling down. One day we shall have to return to it and the customs union.
