Owen Polley: Leaked Northern Ireland Protocol 'deal' comes nowhere close to repairing the Union

The newspaper claimed that the two sides had “struck a customs deal” and achieved a “breakthrough” on the European Court of Justice’s (ECJ) role in the province.

Don’t get too excited though. It looks unlikely that the main problems with the Northern Ireland Protocol are really about to be solved, despite government ‘sources’ latest attempt to brief journalists that an agreement is ‘imminent’.

It wasn’t long before EU ‘figures’ denied outright that the bloc had made concessions or that a deal was close, through anonymous statements to their favourite reporters. In any case, the arrangements described by The Times failed to address many of the issues that the government itself identified as the protocol’s flaws.

The report suggested that a ‘customs deal’ would create ‘green’ and ‘red’ channels for goods moving from Great Britain to Northern Ireland. If goods were to be sold here, they could pass through the ‘green channel’, with reduced checks, while exports to the Republic would pass through the red lane and undergo a full set of customs procedures.

This system was supposedly based on the government’s Northern Ireland Protocol Bill, introduced last year. However, that legislation contained other complementary powers that would have allowed British products to move freely across the Irish Sea.

The protocol established an assumption that goods moving from GB to NI were ‘at risk’ of entering the single market, for example, but the government’s bill reversed that assumption. And the legislation would have empowered ministers to establish a dual regulatory regime here, allowing companies to choose to meet British or EU standards, if the two were to diverge in the future.

These changes were designed to ensure that goods could move freely within the UK. In contrast, a green channel that involved companies adhering to single market regulations and completing customs paperwork would be little more than a glorified trusted trader scheme.

Clearly, Brussels wants the negotiations with Britain to focus on reducing the number of physical checks at Northern Irish ports, rather than dealing with the substance of the protocol. The idea that EU border posts operate within the UK is important symbolically, but customs checks are a symptom of the Irish Sea border, rather than its chief problem.

The other ‘breakthrough’ in The Times’ report concerned the jurisdiction of the ECJ, which certainly is a substantive issue that affects Northern Ireland’s constitutional status. The newspaper said that the EU had agreed that the Brussels’ court would rule on Northern Irish matters only if they were referred to it by UK courts.

That may sound like a positive development, but, actually, it implies that European laws would continue to apply in Northern Ireland. Indeed, the EU could still pass new legislation that would come into force here automatically, without any democratic input from politicians at Stormont or Westminster.

As time passed, Northern Ireland’s economy and laws would almost certainly continue to diverge from the rest of the UK. The only difference being that UK courts, rather than the ECJ, would enforce Brussels’ decrees.

While it was dressed up as a concession, and the EU immediately denied that it had been agreed, this supposed breakthrough would do little to repair our place in the Union.

In Northern Ireland, unionists expressed cynicism about the leaks, questioning their reliability and the intentions that lay behind them. Ian Paisley and Jim Allister both used the phrase “kite flying” to describe the article.

The RTE journalist, Tony Connelly, quoted an EU diplomat who claimed the story was based on “UK briefings designed to test the sentiment of the DUP.”

If that is true, it’s a worrying reflection of the government’s lack of understanding of its own previous proposals, never mind the gravest problems associated with the protocol.

Jim Allister and the TUV make a compelling argument that any customs infrastructure at Northern Irish ports for British products infringes UK sovereignty. At the same time, if the green and red lanes were accompanied by genuine action on EU law and regulations, you could claim that it was a way of effectively moving Irish border controls (for GB goods bound for the Republic) to Belfast and Larne.

If, on the other hand, you implemented green and red channels, but left the rest of the protocol intact, you would merely add another layer of bureaucracy, and solve none of the constitutional difficulties created by the Irish Sea border. Honestly, you may as well never have embarked on months of protracted negotiations.

This may not turn out to be the path the government is taking. These briefings could be partial, leaving out important aspects of the negotiations that are not complete, or they may not form part of an eventual agreement at all.

We know already, that even if a final deal requires the killing of every first born child in Northern Ireland, the usual culprits will line up to tell unionists that it is a historic breakthrough and that they must grasp this once in a lifetime opportunity.

But, if the government wants to convince the DUP that it has repaired this province’s place in the Union and that power-sharing should resume as normal, it will have to do a lot better than the leaked proposals in The Times.