Sam McBride: Halting between two stances, PM’s tough talk may again just be bluster – but it has emboldened loyalists
A lot has changed on the Irish Sea border this week, and yet nothing has changed. In that apparent contradiction lies something highly significant, still somewhat opaque and ultimately unsustainable.
Wednesday’s long-anticipated government policy statement on the Northern Ireland Protocol – which created the new trade barrier – came in the form of a detailed 28-page command paper.
The document talked tough, but set out no immediate action.
That involved some intellectual inconsistency. On the one hand, the government said for the first time that there are now grounds for triggering Article 16 – the most radical measure possible under the terms of the protocol.
It justified that view by citing street disorder, a diversion of trade, a reduction in consumer choice and huge costs for businesses.
Significantly, that involves the government adopting much of the unionist analysis of the protocol – a radical shift from the stance of Northern Ireland Secretary Brandon Lewis in January that “there is no ‘Irish Sea border’”.
But that change was accompanied by no immediate changes to the multitude of areas ministers now say are causing the gravest of problems. None of the checks on goods are ending, none of the onerous new bureaucracy is being suspended, and there is no clarity as to whether parts of the border not yet in place – most notably the medicines border to come in December – will now be implemented.
Instead, the government proposed to freeze the current situation – despite its contention that it is already disastrous – to allow for a new round of talks with the EU about renegotiating parts of the protocol.
As expected, the EU immediately rejected this. Although that was a wholly predictable outcome, senior government sources – both on and off the record – were coy about what happens now.
There was a point where this would have suggested a Machiavellian plan. But the shambolic prosecution of Brexit has repeatedly exposed either no plan, or one drawn up by people who don’t play chess.
A natural reading of Wednesday’s document would suggest that the government is preparing the ground to trigger Article 16; attempting to show how reasonable it is by not immediately doing so, but appealing for the EU to instead renegotiate.
But deploying Article 16 is the nuclear weapon in this diplomatic conflict; beyond that there is little else to threaten. And that article itself allows the EU to then take “such proportionate rebalancing measures as are strictly necessary to remedy the imbalance” created by whatever the UK has done.
In other words, there would be retaliatory action by the EU – and thus Article 16 is likely to trigger a trade war which would impact all of the UK. That trade war could be minor, but warfare – whether with tanks or tariffs – has a history of escalation.
To expect that Boris Johnson is going to trigger Article 16, one has to believe that this prime minister is prepared to prioritise the concerns of Northern Ireland’s unionists over the material prosperity of the voters who elect him.
The prime minister has repeatedly been a lamb in wolf’s clothing. History suggests that the man who threatened to walk away from the EU without a trade deal and vowed never to accept an Irish Sea border will in the end be very different to the man who wrote a tough forward to this week’s document.
But it is not only the government whose position is now intriguing. The DUP which welcomed Mr Johnson’s move, last week published seven tests by which it says it will judge any changes to the protocol.
On paper, the tests sound hardline – “avoid any diversion of trade”, “not constitute a border in the Irish Sea”, etc – but while they explicitly refer to “checks on goods” being unacceptable, there is no mention of the new bureaucracy.
That is potentially of enormous significance because while a tiny percentage of lorries are stopped and checked, that is not the main barrier to trade – about 98% of lorries are not stopped.
However, every British company selling products to Northern Ireland now must complete voluminous paperwork – in some cases, multiple pieces of paperwork for each item – and that is the key burden.
I asked the DUP if the party is prepared to accept an arrangement whereby any of the new bureaucracy remains in place. The party did not reply.
The simplicity of what several months ago was the DUP’s position – the protocol must go – has now been replaced with a more complex mechanism within which various compromises could be disguised.
There continues to be the sense that at best the DUP still barely understands the consequences of its positions – or at worst that it is knowingly lurching between contradictory positions because it does not know where to turn.
At a critical moment in October 2019 the party signalled assent for a proposal from Boris Johnson which would have involved a regulatory border in the Irish Sea, before backtracking. At that point it defended what it was doing in part because it said there would be no customs border in the Irish Sea under that deal.
Ultimately, Mr Johnson’s betrayal of the party led to both a customs and a regulatory border.
And yet, just last year the now DUP leader Sir Jeffrey Donaldson was playing down the significance of what was coming.
Rather than suggest the Irish Sea border was a threat to the Union, as the DUP had previously been doing, last March Sir Jeffrey presented it as an opportunity.
Sir Jeffrey, whose party is now arguing in court that the protocol changes Northern Ireland’s constitutional status, told BBC Spotlight: “In the end, customs checks doesn’t mean that you change the constitutional status of a part of the United Kingdom – that’s not going to happen.”
He went on to speak of “how we exploit the opportunities that may arise from this situation – not only to ensure we have full access to the UK market, but we have also got access to the EU market”.
It is a long way from that stance to the party’s apparently dogmatic position this year after it came under pressure for having agreed to build and operate the border.
On Thursday the Orange Order said that “politics has failed to rid us of this treacherous agreement” and that it will now decide on what “practical strategic pressure” to exert.
In reality, the Orange is now following rather than leading opinion. More strident voices have been at the forefront of this ramshackle campaign.
Within hours of the government paper being published, the influential loyalist activist Jamie Bryson published a nine-page analysis of what it meant and how loyalists could use it to secure their goals.
Mr Bryson cited a paragraph in the government’s paper which explicitly said that this year’s/rioting and protests were evidence of “political and community instability” which would justify triggering Article 16.
Showing a calculating mind, he said that “a very short period of breathing space” would allow the government to take action.
But he went on to say: “The protests – all of them, in every shape and form – has [sic] collectively succeeded partially in so far as they have forced the government to move, but....to ensure that happens in a timely fashion the societal instability must continue.”
That shows a desire to use tactical protests to satisfy criteria contained within the protocol, and which the government has now confirmed.
If Mr Johnson is once again preparing to betray such people, the consequences are difficult to predict. Exhausted unionist dismay could manifest itself in lethargic acceptance of the sort which eventually acknowledged that the Anglo-Irish Agreement’s core would not be altered. But it could also explode in violent rage.
The prime minister is adept at buying time, and has done so again. But he cannot forever halt between two contradictory stances.
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