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.