Ben Lowry: Even if Article 16 is not triggered London knows that the Northern Ireland Protocol is a huge problem

Between the summer and autumn of last year, the UK position on the Irish Sea border hardened dramatically.

By Ben Lowry
Saturday, 9th April 2022, 5:28 am
Updated Saturday, 9th April 2022, 6:40 am
Germany's Chancellor Olaf Scholz (L) and Britain's Prime Minister Boris Johnson (R) make their way down Downing Street on Friday April 8, 2022. The UK PM did not rule out triggering Article 16 of the Northern Ireland Protocol
Germany's Chancellor Olaf Scholz (L) and Britain's Prime Minister Boris Johnson (R) make their way down Downing Street on Friday April 8, 2022. The UK PM did not rule out triggering Article 16 of the Northern Ireland Protocol

The government’s command paper of last July was a blueprint to alter the Northern Ireland Protocol significantly, albeit not to tear it up.

When I was at the Conservative Party conference in Manchester in October, the language of ministers mostly seemed to reflect a genuine sea change in the government position. The Bexit minister Lord Frost led the charge, and confidently explained why the current operation of the protocol was unacceptable.

It was widely understood among both influential politicians and among informed journalists that London was indeed going to trigger Article 16, to suspend aspects of the operation of the protocol.

The new stance had greatly unnerved the EU and the Irish government. The former was pushed into concessions on checks, seemingly with the support of the latter.

Even though unionists have good reason to be wary of any apparent support in Whitehall for their position on matters of importance, few people thought then that the newly tough UK approach was insincere.

I asked Lord Frost at an event about the contradiction between this robust rhetoric on the problems of the protocol and its stance on the joint unionist legal challenge to the internal UK barrier, in which government lawyers were arguing that the Act of Union had been partially and impliedly repealed.

His answer was telling.

He said that it was an interesting question and to watch this space. Soon the legal action was postponed and it seemed as if London was having second thoughts about pressing ahead with defending such a policy. But as we know the government went ahead with its legal defence of the protocol and (of course) it won in the courts.

By late November this tough stance on the protocol had evaporated.

There have been intermittent flashes of strong UK criticism of the Irish Sea border ever since, but it has generally seemed clear that Boris Johnson was heading towards a deal with the EU that left the protocol largely untouched but with Brussels agreeing to fewer checks.

Yesterday, however, there were fresh signs that Article 16 might in fact be triggered.

Boris Johnson notably failed to rule out such a move in a meeting with the German chancellor. Lord Empey said that there were rumours of the article being deployed.

What is going on? My assessment of the wider situation is this:

The prime minister and other influential people in the Conservative Party have come gradually to realise that Mr Johnson made a disastrous concession in October 2019 in his meeting with Leo Varadkar.

The idea that there was no Irish Sea border, maintained by the government and its apologists until months after it came into force last year, quickly proved risible.

Ever since the tentacles of the protocol, and its reach into so many different areas of life, has become shockingly apparent.

When things are as complex as trade rules and regulations that pertain to goods standards and the details of tax and state aid policies and drug approvals and so on, governments have an absolute duty to retain not just control of them, but mastery of their detail and import.

Very few people indeed understand this stuff, as has become painfully apparent.

The Irish commentator Fintan O’Toole is disliked by unionists for his relentless criticism of a supposed British imperial mindset that led to Brexit. But many of his predictions of this process, and of what Britain would do, including the 2017 backstop, have been uncannily accurate. And when the UK put Northern Ireland in a foreign regulatory and customs orbit (technically NI stayed in UK customs) he wrote that major nations “just do not do this sort of thing”.

He was certainly right about that.

So while this latest talk about Article 16 could be yet another disappointment for unionists, and while I still expect a UK climbdown after the election, at the same time I think the concern in London is real.

The government began to argue last year that it had, in effect, acted under duress in late 2019 — that parliamentary blackmail in the form of the socalled ‘Benn Act’ had caused it to concede the protocol.

Whatever the exact reasons for its dealings back then, it really does know that the principle of consent of the Belfast Agreement has been gravely damaged and it knows that that is a massive problem for politics here.

Ben Lowry (@BenLowry2) is News Letter editor