Another weekend when that new deal on the NI protocol is said to be ‘imminent.’ It's certainly quite a shy little thing, isn't it? I read somewhere that in the last few days, James Cleverly has said he expects to make the official announcement sometime between now and the end of time. It's beginning to feel like that, isn’t it? The Sunday Times has a longish piece by Tim Shipman in which he doesn’t say much new but does set out the main problem, that it all now depends on the DUP.
The BBC says the two sides (to be clear they mean the EU and the UK) are “inching” towards a deal, suggesting there are final adjustments still being made to the text.
Anand Menon of UK in a Changing Europe (UKICE) and a man who knows a thing or two about Brexit gave an interview with Channel 4 which perhaps a bit was more interesting. A few things he made clear:
- The deal was actually done some time ago and the delay is really about Sunak agonising over how to present it to his party.
- Sunak doesn’t need parliament to OK anything so there’s little the DUP or ERG can do to stop the PM from agreeing on something with Brussels.
- The issue isn’t about trade anymore but sovereignty
According to the ST, the DUP have only had a verbal explanation of the deal from Sunak, they haven’t seen any legal text yet. The meeting in Belfast a week ago ended in acrimony because the DUP made it clear they were very unhappy about the way Sunak had agreed to the deal without consulting them. He was doing exactly the same as Mrs. May did in 2017.
The fact that a legal text hasn’t been seen by anyone outside the government is a worry. If the deal meets the DUP’s seven tests, why not let them see it? I assume it’s because Sunak is concerned about one or more of the tests not being met.
Menon is right, the trade issues have taken a lower profile recently as if the DUP/ERG nexus has come to accept that problem has been resolved or is resolvable in some way and they might be left without a way of blocking the deal. They needed to find another ‘principled’ objection and have alighted on sovereignty. That is what Sunak is worried about.
The PM is said to have got some concessions out of the EU and Stormont will get the chance to vote on any new EU laws to get them ‘dis-applied’ in the province. I’m sceptical that the EU has allowed what appears to be almost a veto on new EU laws taking effect in NI.
To see what Sunak’s up against have a look at this tweet from Jamie Bryson, a director of something called Unionist Voice Policy Studies and author of NI Constitutional Law’ & ‘Brexit Betrayed. He is talking about the EU ‘allowing’ the UK to set VAT & State aid in Northern Ireland, part of the UK
His objection is that the deal puts the UK into the position of supplicant being permitted to do something in its own territory, a permission they might be able to withdraw at any time. If it's true, imagine what the ERG and lawyers for Britain will make of that.
A ‘concession’- the UK may be ‘allowed’ by the EU to set VAT & State aid in Northern Ireland, part of the UKImagine being allowed to do such a thing in your own country? The EU are such generous colonisers! pic.twitter.com/OX7qTmd7jj— Jamie Bryson (@JamieBrysonCPNI) February 25, 2023
Bryson's point was taken up in a Telegraph editorial (no£) yesterday in which they say without a trace of irony:
"The experience of the past few years is clear: the EU can only be constrained by legally binding treaties, a clear and enforceable deal, not good faith agreements. It cannot be given the benefit of the doubt, and Britain cannot rely on the goodwill of its apparatchiks."
No doubt Brussels will say the UK cannot even be constrained with legally binding treaties.
Boris Johnson is said to be trying to rally opponents of the deal to damage Sunak so he can get back into Downing Street. This is partly down to his vaulting ego and ambition and partly down to revenge. Apparently, the official cross-party inquiry into Johnson’s alleged misleading of parliament has been given vastly more information, and far less redacted, by Sunak than it was given when Johnson was in power. It looks as if Sunak is deliberately trying to damage Johnson.
Shipman says, "Johnson has been holding talks with both the DUP and senior Eurosceptics as he attempts to strengthen his position. Allies of Sunak turned on Johnson, accusing him of being “desperate for Rishi to fail'' and exploiting Brexit in a bid to secure a return to No 10. A spokesman for Johnson said he supported the government.
Johnson’s intervention is being backed by some ministers, who have said that they are willing to resign if they conclude that Sunak’s deal risks Northern Ireland’s place in the union.
One minister told The Times: 'It’s obviously madness [to try and work round the DUP]. It feels like the Theresa May period before Chequers when we all knew she was going to sell us out'."
In addition, Shipman has actually seen the legal advice given to Johnson about the NI protocol bill. This is the one launched by Truss designed to allow ministers to override the protocol. He was apparently advised at the time it wasn’t worth the paper it was written on. It faces hell in the Lords (92 amendments have been scheduled) and it wouldn’t override the international treaty anyway. Worse, it would leave the UK facing a judgment from the ECJ and having to fork out huge fines even during the arbitration period.
It was and is useless, but Johnson is urging Sunak to keep it as a 'cudgel' to force concessions out of the EU.
I have to say, all of this is down to Johnson. He is a curse on this country and probably will be until he’s gone. His plausible bluster, ignorance, indecision, and weakness gave us the NIP and there is still no solution in sight.
The whole idea that NI without a land border on the island of Ireland can be treated for legal and practical purposes as being exactly the same as GB is a chimera. If that were possible, it would mean there is no border between the UK and the EU, two distinct, independent sovereign legal entities. This is simply impossible. At best, the deal will try to make it appear that NI and GB are the same when, post-Brexit and without that land border, they are not and can never be.
It’s an exercise in pulling the wool over Unionist eyes and since they’re deeply suspicious about the motivation and intent of the nation-state which they claim to want to be tied to in perpetuity, they will quickly see through it.
I believe the DUP, once we know all the details, will claim that the important stuff on sovereignty is really all presentational, designed to make a mirage look solid but in practice meaningless. And they will object.
Sunak is said to be willing to face down the DUP and the ERG but he is certainly in very dangerous waters. What he is 'inching' towards is another row with the Unionists and the Eurosceptics in his own party.
All of the problems left by Johnson are coming back to haunt us all.
