Boris Johnson’s Hypocrisy on the Northern Ireland Protocol Is a New Low

Yves here. It really is possible that Boris Johnson has finally outdone himself in the bad conduct category, as the post below argues, focusing on the Johnson’s flim-flam with respect to the Northern Ireland “consent” claim.

Sky News provides a high-level overview of the UK’s latest machinations:

The [Northern Ireland] protocol is designed to prevent the return of a hard border with the Republic of Ireland but effectively creates a border in the Irish Sea and means exports from Britain are subject to customs checks.

The UK says that creates problems for businesses and is a threat to the power-sharing arrangements set up after the Good Friday peace agreement in 1998 – with the DUP refusing to support a new Northern Ireland government until the issues are resolved…

The bill will enable ministers to establish a “green lane” so trusted traders are allowed to move goods from Great Britain to Northern Ireland without checks, as long as the products remain within the UK.

Gerhard Schnyder describes in blistering terms how this Brexit gambit is a last ditch effort by Johnson to salvage his prime ministership. His poor performance in the recent no confidence vote says the balance of his tenure is likely to be measured in single-digit months:

The weakened Prime Minister seems to seek that support amongst the most extreme right-wing fringe of the Conservative party, namely the European Research Group (ERG). Indeed, besides Partygate, one of the reasons for decreasing confidence in the PM arguably was that Johnson had started to adopt somewhat more conciliatory rhetoric towards the EU on key Brexit issues, most notably the Northern Ireland Protocol (NIP). Monday’s vote means the Prime Minister will sway back towards the far-right of the Brexit path and will seek to re-radicalise the Brexit project so as to re-ignite the Brexit fire that saw him gain an 80 seat majority in the 2019 General Election. Yet, the re-radicalisation of Brexit threatens not only to spark off a major crisis with the EU over Northern Ireland, but also undoing some of the more reasonable policies the Johnson government has adopted in the past 3 years to make them palatable to the Tory hard-right.

Weakened, under pressure, and at the mercy of the extremist ERG, Johnson is about to become a real danger for the UK, its economy, and international reputation.

Other elements of the picture view are just as ugly. First, as various commentators have repeatedly pointed out, Boris Johnson and the Tories knew full well what they were getting themselves into when they signed the Withdrawal Agreement. Yet now one of their excuses for making illegal changes is that they didn’t understand the effects. No, it’s that the Tories didn’t want to admit what having borders with the EU would amount to, so they are once again falling back on cakeism as a strategy.

Second is that Johnson is making this move against the EU when it is preoccupied with Ukraine. He’s betting that that means the Union’s response to his perfidy won’t be as bloody-minded as it would normally be. That seems to be correct. Recall that the EU has retaliatory strategies it could execute within days of the UK pulling the trigger. But according to the latest Politico morning European newsletter, the reaction is likely to be measured:

BREXIT RESPONSE: The European Commission will today fire the opening salvo in its response to Britain’s introduction earlier this week of new legislation overriding major parts of the Northern Ireland protocol.

What to expect: Vice President Maroš Šefčovič is expected to announce that the Commission will restart infringement proceedings against the U.K. that were launched last year but put on hold. In addition, new infringement proceedings are also on the cards.

What not to expect: Any serious talk of a trade war. The EU is going to hold its fire on launching trade measures against Britain until its legislation enters the statute book — which could be a year away

A new article on the Politico website describes some of the extra-judicial options:

But the Commission would then feel empowered to hit British exports with swingeing trade tariffs, and freeze cooperation with the U.K. in other areas — and it is not short of ideas. Access to financial and tech markets, agreements on data flows and even deals on crime and security could be suspended.

Britain’s great gamble is the EU would never take such a mutually damaging step, with citizens on both sides already struggling with the soaring cost of living and with European unity crucial in the face of Russian aggression in Ukraine.

The EU, however, is already discussing how to simplify the requirements the Commission must meet in order to proceed with retaliation.

Now to the post proper.

By Emma DeSouza, a writer, political commentator and civil rights activist who successfully reaffirmed the identity and citizenship provisions of the Good Friday Agreement by securing legislative changes to domestic UK immigration law. She works in the area of constitutional law and is an advocate for the full implementation of the Good Friday Agreement and enforceable human rights protections in Northern Ireland. Originally published at openDemocracy

Boris Johnson has never seemed very bothered by the wishes of those in Northern Ireland.

The prime minister pushed through a Brexit deal that the majority in Northern Ireland opposed and has been keen to cosy up a Democratic Unionist Party that won just over a fifth of the votes in May’s Northern Irish election.

But now Johnson – and his allies in the DUP – can’t stop talking about one word: ‘consent’.

When British government ministers tabled legislation to unilaterally disapply several key sections of the Northern Ireland protocol, they said they were defending the principle of consent, a key strand of Northern Irish political discourse stretching back to the peace process.

Johnson and the DUP claim the lack of unionist consent for the customs border that the protocol created in the Irish sea – which means goods exported from Great Britain to Northern Ireland face checks – poses a serious threat to the Good Friday Agreement. (This is the same peace agreement that the DUP opposed, incidentally).

But the objective here is not to protect the agreement – it’s to undermine it.

Both the Tories and the DUP have been mortally wounded by the results of their own short-sighted actions

Both the DUP and the government overlook the absence of consent for Brexit itself in Northern Ireland, as well as the fact that a recent survey by Queen’s University found majority support for the post-Brexit arrangements and that the Northern Irish electorate has also just returned a pro-protocol majority to Stormont.

Business leaders and representative bodies have also become increasingly critical of the plans in the days leading up to yesterday’s publication of the Northern Ireland Protocol Bill.

NI’s Dairy Council, Manufacturing NI, the NI Meat Exporters Association and more have said the protocol is working. They say the UK’s proposals – particularly the dual regulatory scheme, which will see businesses in Northern Ireland given the choice of following UK or EU rules – would be devastating for their industries.

But the British government claims its action is necessary to restore the Northern Ireland Assembly and North-South Ministerial Council. It omits that both institutions are down not because of the Northern Ireland protocol, but because of the DUP – which has spent the past near-quarter century actively blocking the progression of many of the GFA’s provisions.

Of course, none of the political posturing on display is about consent, or peace. It’s about the selfish political aims of the Tory party and the DUP, both of which have been mortally wounded by the results of their own short-sighted actions.

A Worrying Precedent

The government, along with the DUP, has successfully reframed the application of cross-community consent in the discourse around the post-Brexit arrangements. It has seeded the narrative that this is required for the functional operation of the protocol.

But consent under the GFA, as well as the Northern Ireland Act 1998, is not required in this case – in fact, the consent mechanism in the GFA applies solely to Northern Ireland’s place in the UK. This has been legally tested twice since the Brexit referendum, with the Supreme Court ruling that consent applies only in the event of a border poll.

Cross-community support, which is what the DUP and Boris Johnson are relying on, applies in limited circumstances, such as the election of the first minister and deputy first minister. Normal majorities suffice elsewhere unless a petition of concern is raised.

What’s more, during the Brexit negotiations, the DUP roundly rejected the idea of Northern Ireland having some form of consent at every possible opportunity. This conviction conveniently buckled when the NI protocol came to fruition – at which point, the party sought to champion the concept of consent.

The DUP initially argued for the extension of cross-community voting to the international agreement. This was, in essence, an attempt to establish a unionist veto over the Northern Ireland protocol. Consent, it seems, is required only when it suits one’s own political objectives.

The legality of the protocol legislation will be debated in the weeks and months ahead, but the inclusion of a clause that gives sweeping powers to ministers to disapply any provision of the GFA will cause particular concern.

This clause could allow the UK government to override the Northern Irish Assembly’s scheduled vote on whether to retain the protocol in 2024 – though Downing Street has insisted it would not be used to do so.

But more worrying still, it could set a precedent that further distorts the application of cross-community consent. If such a prerequisite were placed on a border poll, for example, which is outlined in the GFA as requiring a simple majority, the likelihood of a United Ireland would become null and void.

The GFA is an international peace agreement. That it is being used as an excuse to breach another international agreement is nothing short of shameless. Peace is not a bargaining chip. Johnson and his allies will continue to use ‘consent’ as their rationale, but make no mistake, their actions do not have consent in Northern Ireland.

The British government will claim its new bill operates within international law, but it remains a basic rule of law that a country cannot unilaterally use domestic legislation to write its way out of an international agreement.

Whether the bill will be passed by the British parliament remains to be seen, but the damage of its impact on the peace process, on economic growth, on British-Irish relations, and on the UK’s international reputation will already have been done.

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  1. Colonel Smithers

    Thank you, Yves. is what Tory grandee William Hague thinks of Johnson’s gamble.

    One can live with Johnson’s hypocrisy. That’s nothing new. Much more worrying is the timing of Johnson’s move. The unionist marching season is a month away. The 2021 census results, which is unlikely to have good news for unionists, is scheduled for publication late summer.

    The new TV channel GB News, likened to UKIP News by some, will feature the marches live. Arlene Foster will present the coverage.

    One hopes Plutonium Kun chimes in.

    1. PlutoniumKun

      Thanks Col., I’m a little out of the loop at the moment but I think the loyalists are a busted flush. The last two years they had the chance to make trouble, but every protest was a damp squib. They lack leaders they can trust.

      It’s obviously the worst time for Boris to raise this issue, but I don’t think he knows or cares about the marching season. My guess is that there is too much confusion at grassroots level for it to make a difference. I think Republicans will sit back and bide their time, they know the flows of time and demographics and politics are in their favour. Dublin is furious, as much because they see this as playing into Sinn Féin’s hands as they are angry with the details of the proposals.

      I’ve noted that jokes about Irish politicians love theTories because it makes them look reasonable and competent in comparison are making a comeback.

  2. jsn

    Back in the first manic phase of Brexit, I imagined a highly particular class of Brexteers, one’s with epaulettes on their shoulders and very expensive cognac, seeing it as a swashbuckling opportunity like the one once chartered to the Duke of Warwick (which licensed that blood thirsty pirate to pillage the New World with aplomb, plundering the Spanish Caribbean and introducing racial slavery to the British colonies for good measure).

    Now, those same men have no more concern about starting a war amongst the toiling classes in Ireland than in Ukraine, and all to spite Germany, really making the whole thing worth while.

    Until these mens wives and kids fear for their lives, I doubt they’ll change.

  3. David

    The best legal analysis I have seen of the problem is this one, by Mark Elliot, which goes through the government’s argument in some detail.
    I think it’s a mistake to look at this as purely an internal Tory Party issue. The fact is that Brexit required a border somewhere, and in the event the Protocol put it in the sea rather than on land. But the reality is that the UK now has a customs border on its territory, and this has led, and is leading, to a lot of practical problems, as was foreseen at the time. The clever thing about Brexit is that it required a solution to the NI problem, and there were only two possibilities, both unacceptable in different ways. For a while it was possible to pretend that there wasn’t a problem. Now it’s not.

    1. Yves Smith Post author

      While that is true up to a point, the Government did absolutely nothing to help businesses prepare for Brexit, particularly all the new forms and the VAT accounts. I’m sure the main reason was ideological, any new complexity would undermine their fairy tale of a glorious Brexit. But it was also criminally negligent.

    2. Colonel Smithers

      Thank you, David, especially for the link.

      @ Readers: David is absolutely correct to say that “it’s a mistake to look at this as purely an internal Tory Party issue”. Unfortunately, much of the UK MSM’s coverage of anything, not just Brexit, is driven mainly, if not solely, by political correspondents, hence the slant.

      This morning’s BBC news featured a political correspondent struggling to explain the legal issue behind the European Court of Human Rights preventing the transportation of immigrants to Rwanda. It was even implied that this was an EU court. Er…

      An appeal was recently made to the BBC, upon the appointment of a new political editor to replace the (expletive deleted) Laura Kuenssberg, for said editor to not lead on stories and let the other correspondents and editors, say economics or, when the BBC had one, legal, to lead and then have the political correspondent / editor wrap up. It was also suggested that experts in their field, not the London political and media village people, get on air. The appeal has fallen on deaf ears.

      1. Basil Pesto

        This morning’s BBC news featured a political correspondent struggling to explain the legal issue behind the European Court of Human Rights preventing the transportation of immigrants to Rwanda. It was even implied that this was an EU court. Er…

        It’s amazing how this error is committed over, and over, and over again.

  4. Stephen Easton

    A united Ireland seems the long term outcome anyway.

    A statesman would work towards getting to that inevitability in a way that avoids future conflict. But that term does not describe Johnson, or any of the current western crop of “leaders”.

    Johnson’s government is on its last legs so he will likely ratchet up this type of dysfunctional policy as a way to try to keep going. His bluster with respect to Ukraine must also be seen in the same light. Challenging times.

    1. Synoia

      There is an old joke:

      Just as the British understand the Irish problem, the Irish change the problem.

      Strangely enough, despite many years of history lessons (British Version), now, after much listening and reading, I have some different views from those history lessons, but few solutions appear from many of the Gordian Knots our leaders erect for their own purposes.

      I am dismayed at the level of outright dishonesty and deception.

      1. Anonymous 2

        The UK’s political and journalistic culture is now one of constant, systematic lying.

        It was not always this way but the rot set in about 30 years ago (arguably when Johnson became Brussels correspondent for the Telegraph and started lying to the readers about developments in Brussels) and it has been downhill ever since. Now you have an electorate who as a result are woefully misinformed and therefore cannot make sensible decisions. With voter suppression laws coming into effect (official photo ID requirements which the young and poor may not be able to obtain), it may not be possible for anyone to get the Tories out even if the overwhelming majority want them out.

        The UK looks to be sliding towards a form of soft fascism. Johnson may be gone soon but it is telling that his would-be successors are tacking to more extreme positions than even he has adopted. The calculation is clearly that the grass roots party members are now drawn from many of the most extreme right-wingers in the UK and it is they who ultimately will get to choose the next party leader. The moderates have long since jumped ship or been expelled.

        No wonder Murdoch supported Brexit.

        1. Ludus57

          The Tories take their lead from the Republicans albeit several years behind.
          This will stretch to the efforts Johnson makes to hang on to the premiership, when he will be channelling the Spirit of Trump.
          Like his model in madness, Boris is a political clown of the first magnitude, with all the concomitant dangers that “accolade” implies.

        2. SOMK

          30 years ago seems about right, few years ago comedian Adam Buxton did a lengthy interview with surrealist satirist Chris Morris who in and around 30 years ago was bringing his marvellous ‘The Day Today’ radio show from BBC radio to TV. In the interviews he notes that at the time there was a culture in the upper echelons of the beeb that so long as you were doing something ‘interesting‘ that was sufficient and there was a general contempt for ratings. That culture has changed markedly since, I would mark out the BBC as the media bell weather for Britain (a job with the BBC being the ultimate aspiration for ambitious media types) and if we’re going to play when did the rot set in I would plum for the enforced resignation of Alasdair Milne owing to pressure from the Thatcher government in 1987 (which in turn led to the exodus of the likes of Dennis Potter to Channel 4) followed by the reforms of John Birt which were demanded by the Tories under risk of the BBC being privatised. Dennis Potter’s McTaggart lecture from that period dresses some of the issues

          1. Anonymous 2

            Fair comment .

            And of course Hussey, who dismissed Milne, was appointed on the recommendation of one Rupert Murdoch!

  5. The Rev Kev

    Just being flippant here but couldn’t Ireland undertake a Special Military Operation in Northern Ireland – but without all that artillery? I suspect that most people would greet them like they met William of Orange in the Glorious Revolution – with open arms. Sure, the DUP would have a sad but they could always emigrate across the channel. Ireland would be re-united after a century divided and the customs border would then sit firmly in the Irish Sea. Boris might freak out but wiser heads in the Tory party – if they still exist – would reflect that a lot of problems with the EU would all go away.

    1. Dave in Austin

      The Good Friday Agreement was cobbled together under the assumption that Great Britain would stay in the EU customs world. That is now OBE (overtaken by events). Both sides in Brexit chose to pretend there was no problem; that didn’t work. Boris is looking for a creative work-around. The EU would prefer not to see one, betting that in the long run demographic change will solve the problem and unite Ireland.

      I notice the Irish government doesn’t seem so enthusiastic about that. Right now Great Britain has a restive minority in northern Ireland that has (barely) agreed to stop throwing bombs if enough money is passed around. Everybody I met up there grumbles but the bombs aren’t going off so almost everyone is happy. The last thing the Irish government wants is a “United Ireland” with the other side throwing the bombs… many of them likely to be set off south of the border just as during “the troubles” bombs went off in Manchester.

      Faced with that sort of problem, the Irish government would wind up being forced to check trucks and cars coming in from the north. A new border. Nobody wants that. I note that the Irish government and the Irish newspapers are not looking for a confrontation; they don’t sound like the folks in Brussels at all. Boris is desperately looking for a way to paper-over the problem with creative “Green Lanes” (like the US has for Mexicans along the border living in one country and working in the other). Everybody on the scene seems to be looking for a “paper over”. I’m with them.

      As for Yves accurate comment on the VAT paperwork in Britain being late, that was a general problem and not aimed at the Irish border; it mainly caused snarls at Dover. Bureaucrats are elephants not ballet dancers, as the US bureaucratic response to Covid demonstrated.

  6. orlbucfan

    Well, from across the pond, I wonder how such senile American political “marvels” like Nancy Pelousy will react to all this deliberate NI nonsense? What a world! What’s wrong with an united Ireland actually becoming a reality?

    1. Synoia

      To misquote al saying, Pelosi and her lackies will say: What do you want to keep your large dollar “donations” to continue?

    2. SOMK

      Second is that Johnson is making this move against the EU when it is preoccupied with Ukraine.

      I wonder if this is also a consideration with regards the US who’s main euro centric focus is similarly orientated towards the Eastern extreme of Europe. I doubt foreign policy is much of a mid-terms vote winner. As per ‘what’s wrong’ with a united Ireland, nothing except the damage that would have to be fixed, Northern Ireland being one of the poorest regions in Western Europe, the fact that it was designed to be a sectarian polity with similar notions of superiority for the protestant/unionist half of the population baked-in makes things tricky in terms of integration. Plus the Irish ruling classes tend to veer ‘west brit’ as they say and are far less enthusiastic about a united Ireland than the population as a whole. On the plus side Sinn Féin are increasingly looking like a government in waiting and have some extremely competent potential minister lined up in the form of Eoin Ó Broin, Pearse Doherty and a very canny Mary-Lou McDonald leading, Ireland’s current foreign minister Simon Covney has been praised on here for being one of the few ‘major’ political figures with a brain and they would be of a similar if not higher standard.

  7. JohnA

    Today is Bloom’s Day, Joyce was no fan of the ‘Saxon’ occupiers. One day soon, perhaps, 16 June can be a national Irish holiday on a par with 14 July in France. A united Ireland is the most compelling solution to the Brexit border dilemma which is insolvable as long as the North remains a British divide and rule colony.

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