Professor Chris Grey’s detailed analysis of the NIPB in relation to the internal politics of the Tory Party and the wider politics of Brexit. But no amount of analysis can ignore the shame it brings to Britain.
First published: June 2022.
Since the very early days of my blog in 2016, I have been writing about the self-pitying victimhood and perpetual grievance that permeates the political psychology of Brexit. A recent example was last weekend’s doltish claim from David Davis that what we have is “remainers’ Brexit”. Admittedly, almost everything Davis has ever said about Brexit has proved wrong, but this latest comment is undoubtedly widely shared by all those, including David Frost who negotiated it, who now insist that Johnson’s ‘triumphant’ Brexit deal of 2019 was actually an abject defeat forced on them by ‘Theresa the remainer’, ‘remainer civil servants’, the ‘remainer parliament’ and its ‘Surrender Act’, and, of course, the EU’s ‘brutal’ treatment of poor little Britain.
This recurring sense of victimhood is directly linked to the main Brexit event of the week, the publication of the long anticipated and several times postponed Northern Ireland Protocol Bill (NIPB). For as Fintan O’Toole puts it, “self-pity has always been the dominant emotion in Brexit, and it has shaped the story the Brexiters are now telling themselves about the protocol”. In that story, the Northern Ireland Protocol (NIP) is treated not as an agreement freely made, and trumpeted as a triumph, but a grievance to be redressed by any means, fair or foul. For what’s perhaps less well-recognized is that the the flip-side of Brexiter victimhood is that it justifies them breaking all the rules to ‘get Brexit done’: we’ve been ‘cheated’ of ‘true Brexit’, so we can cheat in pursuit of it.
Ever since agreeing the NIP, Boris Johnson has continually stoked grievance about it amongst both the ERG Brexit Ultras and the DUP, not least by lying to them about its provisions and its impermanence. At the same time, in typically Johnsonian style, he has wavered between that and taking a slightly more pragmatic approach. Thus, for all the threats throughout 2021, he never ‘triggered Article 16’, and his unwillingness to do so and his apparent softening on demands for changes to the Protocol are widely believed to have led to the resignation of Frost who, ever since, has been a high-profile agitator for a hardline approach.
With the NIPB, the government’s approach has now become considerably harder in that, although retaining the right to use Article 16, it seems that it has abandoned that idea as too partial. Instead, the NIPB would unilaterally scrap the bulk of the NIP’s agreed provisions and replace them with the UK’s preferred, much more limited, arrangements, despite knowing that most of these are unacceptable to the EU. Yet, already, Johnson is reported to be wavering about that, and wanting to ‘de-escalate’ the row at the very moment he escalated it.
In consequence, there are at least two strands to understanding the NIPB. The first is solely bound up with the internal politics of the Tory Party and the second to do with the wider Brexiter politics of the UK-EU relationship.
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Regarding the first strand, as has been the case in various ways for 30 years, and despite the considerable clear out of ‘remainers’ and other moderates since the last election, the Tory Party is riven by different factional views of European policy. That factionalism is made more complicated by the post-partygate weakness of Johnson’s leadership and by the consequent jostling for position amongst his potential successors. As discussed in last week’s piece, there are particular divisions between the ERG, the One Nation group and what might be called the ‘Mayite’ faction, which framed arguments over the text of the NIPB. With its publication, it became clear that the ERG view had won out because, if enacted, it almost completely guts the NIP, the only rider being that its provisions would not immediately come into effect but would be available for subsequent implementation by ministers.
This would also seem to be a victory for Liz Truss, who has hitched her leadership ambitions to proselytising for the ERG. That’s understandable enough, since it’s highly unlikely that anyone will succeed Johnson who doesn’t have their support. But she might want to reflect on the fate of Theresa May, who also sought to lose the taint of having been a remainer through the warmth of their embrace. It turned out to be a bear hug.
So if Truss does succeed, she had better be ready for the inevitability of their next demand which is likely to be derogation from the ECHR. That has long been in the Ultras’ sights and, as shown last week, it’s a demand they are hair-triggered to make. It won’t be met for now, if only because it would contravene the Good Friday Agreement, protection of which is the government’s supposed rationale and diplomatic cover for the NIPB, but the one thing that can be said with certainty about the Ultras is that they never give up trying.
The legality of the NIPB
That’s a matter for the future. In the meantime, the ERG have got their way, and the only sop to the ‘moderates’ is the summary of the government legal position explaining why the NIPB supposedly does not break international law. Simply providing an explanation demonstrates that the government has learned the lesson of having publicly admitted that the 2020 Internal Market Bill (IMB) did break international law. The fallout from that episode still matters, since it showed that the government is willing to break international law, and that it does actually understand that unilaterally breaking the NIP constitutes such a breach. For both domestic and international reasons it wants to avoid that charge.
Domestically, much will depend on whether enough Tory MPs, not to mention Peers, accept the validity of the government’s new legal position. This departs from the previous, absurd, attempt – which did the rounds again last week, attracting much Brexiter excitement - to argue that the IMB was legal because domestic law trumped international law, and even from the recently trailed and much mocked suggestion that the NIPB could be justified on the hitherto unknown legal concept of ‘primordial significance’ apparently advanced by Attorney General Suella Braverman. Even so, it is clear that she views the new legal position through the distinctly non-legal lens of leave versus remain.
This new legal position is based centrally on “the doctrine of necessity”. Numerous heavyweight legal experts have already explained what that means and cast substantial doubt on its applicability in this instance, with David Allen Green saying the position is “weak to the point of non-existent”. Meanwhile, the former Head of the Government Legal Service, Sir Jonathan Jones, who resigned over the illegality of the IMB, has called it “hopeless”.
One of the main problems these legal experts identify in the government’s legal position is that, indeed, Article 16 has not been invoked. How, then, can over-riding the NIP meet the “grave and imminent peril” criteria required by the doctrine of necessity when the provisions within it to deal with any difficulties have not been made use of? And if the peril is “imminent” why forego the immediacy offered by Article 16 in favour of a legislative process that may take a year?
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Equivocation and inconsistency
I am not a lawyer, but an important political aspect of this is the ongoing equivocation about whether the UK’s objection is to the operation of the Protocol or to its very existence. One reason why the government seems to have decided not to use Article 16 is precisely because doing so would be to stay ‘stuck’ within the framework of the NIP rather than breaking free of it altogether, or at least drastically re-writing it. The desire to entirely ditch the NIP, rather than just operate it differently, is clearly the position of at least some of the ERG, the DUP, and some other unionists, whilst the text of the NIPB certainly entails it being drastically re-written. Others, including Johnson himself when he refers to the NIPB as simply dealing with some bureaucratic trivialities, imply the opposite.
That it is the operation not the principle at stake is also implied in the paper on the government’s legal position, which states that “the peril was not inherent in the Protocol’s provision”. Yet, since the ‘peril’ is, apparently, the strain being put on the power-sharing institutions then, certainly from a unionist point of view, it was inherent in the Protocol’s core provision of the Irish Sea border. The legal position paper also refers to the way the NIP has been “applied and administered”, again as if it is implementation that is at stake, even though it is not claimed that this implementation violates the written terms of the NIP. Yet that seems inconsistent with a requirement of the doctrine of necessity that the UK (in this case) has not “substantially contributed to the situation of necessity”, since the government freely agreed to the written terms of the NIP. Of course this is where the Brexiter myth that the NIP wasn’t freely agreed (because of the Benn Act etc. etc.) hits the brick wall of reality.
“Does the NIP violate the GFA as a matter of principle, and if so why did the UK government sign it and say that it did not?”
This lack of clarity has been present since the outset, with Brexiters’ and the government’s arguments oscillating between objection to specific practical effects of the NIP, and objection to and denial of the very existence of an Irish Sea border. It is also present as regards the Good Friday Belfast Agreement (GFA), which is central to the government’s legal argument of necessity. Does the NIP violate the GFA as a matter of principle, and if so why did the UK government sign it and say that it did not? Or is it averred that it only does so in terms of its operations, in which case why will it not suffice to reform these in the ways already offered by the EU? This matters, not simply in terms of the viability of the government’s legal position but also in terms of how the politics of the NIPB are likely to play out, something I will return to below.
Beyond issues of international law, the NIPB has constitutional implications. The Brexit process has already resulted in a growth in the power of the Executive, especially in the use of ‘Henry VIII powers’. So MPs and Peers might also be alarmed by what the Hansard Society describes as the “quite breathtaking” powers the legislation would give to Ministers, with virtually no Parliamentary scrutiny. All this will play out in the days, weeks and probably many months to come. For now, at least, it seems as if most Tory MPs are ready to go along with the NIPB, though I doubt that will hold.
However, unsurprisingly, it is already clear that the European Parliament, the European Commission, and many member states including Ireland, regard it as both illegal and a grotesque breach of trust irrespective of its legality. Whatever now happens, the memory of this moment will leave a long and sour after-taste. It will also have implications for how the UK is viewed globally, and will certainly make it much harder for it to take the moral high ground in all sorts of international disputes. That makes even the publication of the NIPB an especially irresponsible act given current global issues, something else which will weigh with some Tory MPs and Peers. As Anton Spisak of the Tony Blair Institute pithily put it, “wait until Moscow or Beijing invokes ‘the doctrine of necessity’ to override its international obligations”.
The politics and diplomacy of the NIPB
That brings us to the second strand in understanding the NIPB. Its appearance is not simply about the internal dynamics and current disarray of the Tory Party, but also about the myths that Brexiters, and Johnson and Frost especially, have developed about what happened in the Brexit negotiations with the EU. As mentioned above, these include the idea that the NIP was forced on the government because parliament denied it the ‘nuclear option’ of no-deal Brexit. Added to that is the claim that it was the threat of the illegal clauses in the IMB that pressured the EU into reaching the Trade and Cooperation Agreement.
Given this ‘analysis’, it is perfectly possible that the NIPB is not intended to be used, perhaps not even to be passed, but that its threat is simply a tactic to extract far greater concessions from the EU than might otherwise be the case. Indeed, the repeated comments from Truss and others that the government would prefer a negotiated solution to using the NIPB may well imply that this is the aim. But if it is such a tactic, it is fraught with difficulties, even leaving aside the damage that it has already done to the UK's reputation.
First, precisely because it is so unreasonable from an EU perspective it is likely to be counter-productive in securing such concessions. In the meantime it has already attracted EU retaliations, with new infringement proceedings for non-compliance with the NIP plus the revival of those relating to the UK’s unilateral extension of grace period last year – for it shouldn’t be forgotten that the NIPB démarche is only the latest, albeit the most serious, of the government’s duplicities over the Protocol. Despite much media comment, the EU’s response will fall short of a trade war for now, though it’s true that the publication of the NIPB is a step down the track towards that. Generally, the EU is likely to ‘play it long’, partly because the NIPB will take a long time to pass and partly because Johnson’s fragility means he may not survive. That doesn’t make it economically cost-free, however, because the possibility of an eventual trade war creates an uncertainty that is a disincentive to investment.
The second difficulty, if the NIPB is ‘just’ a negotiating tactic, is that even if it were to extract the maximum conceivable concessions that wouldn’t satisfy the ERG or those unionists within and outside the DUP who want the NIP not just gutted but totally scrapped. This relates back to the ambiguity of whether the government regards the NIP as unacceptable in principle, or only in the manner of its operation. That ambiguity is enough for now to satisfy the ERG and, possibly, to keep semi-sensible Tory MPs on board, but it can’t be sustained forever and is already under strain, as Johnson’s ‘de-escalation’ comments show.
Northern Ireland and the NIPB
This links to the third problem, namely the dimension of Northern Ireland politics specifically. The claimed proximate cause of the NIPB is the DUP’s refusal to participate in the power-sharing institutions, thus Truss suggests that the legislation will “support political stability in Northern Ireland”. However, despite reported government pressure to do so, it’s unclear if the DUP, whose MP Ian Paisley denies there has been any such pressure anyway, will change position on power-sharing until the legislation is passed and perhaps not even until it is applied.
This in turn reflects their profound distrust in Johnson because of his previous duplicity, and their awareness of the ambiguity just alluded to. In consequence, if the NIPB is just a tactic to bluff the EU into greater concessions but without necessarily scrapping the entire Protocol, that may not satisfy the DUP and certainly not groups such as Traditional Unionist Voice (TUV). Indeed the TUV leader has already made it clear that even the provisions of the NIPB do not go far enough to satisfy them.
But, in any case, for all that the DUP may loathe the NIP, the recent Assembly elections produced a majority for parties which do support it and have already expressed their opposition to the NIPB. Northern Ireland business groups want any changes to be negotiated with the EU, rather than unilaterally declared. As for public opinion in Northern Ireland, Truss claims that the majority want the NIP to change, but that is based on including the 36% who in an opinion poll of November 2021 said it would be “acceptable with some adjustments”. That doesn’t endorse the much more extensive proposals of the NIPB, for which the same opinion poll implies at best 41% support. More recent polling, from Queen’s University Belfast in February 2022, shows that 53% did not think the triggering of Article 16 would be justified and 39% thought it would be, and it’s reasonable to think that support for the much ‘harder’ NIPB approach would be less than, and certainly no greater than, that.
So anything that does satisfy the DUP, let alone the TUV, is likely to be anathema to the majority. Of course, ultimately, this reflects precisely the warnings before the referendum that, however Brexit was done, it would destabilise the fragile politics of Northern Ireland. That is now undeniable, but the NIPB certainly doesn’t solve things. This in turn means that the US stance is likely to be a significant factor. Already, several influential American political groupings have made criticisms of the Bill ranging from the robust to the downright damning. However, the official reaction from the Biden administration to the publication of the bill has so far been muted and reports suggest it will continue to be low-key, though much will depend on how the NIPB process unfolds.
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A new and shaming low
The publication of the NIPB is a pivotal but not a decisive moment. It certainly marks a new phase in the Brexit process – yet again making a mockery of Johnson’s boast and promise about ‘getting Brexit done’ – but it is a phase which, unless something very unexpected happens, will last for a long time, conceivably longer than Johnson himself.
It also marks a new low, beyond all the many that Brexit has occasioned. It’s easy to become caught up by all the political machinations and legal intricacies which surround this latest event. But we shouldn’t let that blind us to the sheer rottenness, dishonesty and irresponsibility of it all. The idea of a country signing a major international agreement in what was plainly bad faith and threatening to break it on threadbare grounds is contemptible. So too are all the lies told to and by MPs along the way. So too is the reckless disdain for the troubled politics of Northern Ireland and the daily lives of its people.
“It is left to others of us to feel ashamed at what Brexit has done to our country and to how it is now seen by the rest of the world.”
It is shaming, and the worst of it is that those responsible feel no shame. It is left to others of us to feel ashamed at what Brexit has done to our country and to how it is now seen by the rest of the world. Ashamed of Johnson’s incurable moral delinquency, enabled by a cabinet of sycophants, ghouls and nonentities. Ashamed, too, of a country where ghastly old waxworks like Bill Cash and his ‘Star Chamber’ get to pass judgment on whether what has been proposed ‘goes far enough’ to satisfy their perverse fantasies, and where circus sideshow freaks like Liz Truss dance to their debased tune.
And it is not even the most shameful thing the government has done last week.
— AUTHOR —
- Professor Grey is the author of Brexit Unfolded: How no one got what they wanted (and why they were never going to) | Biteback Publishing