If the upbeat diplomatic mood music is anything to go by, then the UK and EU are edging slowly but surely to a resolution over the accursed Northern Ireland Protocol.
The hopeful speculation comes as a new agreement on sharing trade data was announced by the UK government and Brussels last week. Movement on this issue was heralded as a “new basis” for talks.
Of course, progress on the protocol would be welcomed by many. Despite Johnson’s initial insistence that “there will be no checks on goods going from GB to NI, or NI to GB”, reality has judged differently. Unionists argue that the protocol cuts them off from the rest of the UK and creates bureaucracy that deters small businesses in Great Britain from trading with the region. Because of this, politicians from the Democratic Unionist Party (DUP) — Northern Ireland’s largest pro-UK party — have refused to take their place in Stormont. They have presented three consecutive prime ministers with a simple choice: the protocol or power-sharing.
The individual most eager for a resolution will be Rishi Sunak. He wants to remove a serious irritant in Britain’s relations with Irish-American US president, Joe Biden, and begin a soft reset of UK-EU post-Brexit relations. The prime minister knows that the protocol impasse has greatly limited Britain’s scope for manoeuvre internationally.
But more pertinently, Sunak is also in desperate need of a political win — something which might justify his continued presence in No 10 as factions continue to swirl. In fact, two years after Boris Johnson signed off on the UK’s post-Brexit trade deal, fixing an issue that his most likely successor caused might be the perfect way to do this. A diplomatic triumph could quiet discontent in his party, vindicating his self-professed “problem solver” credentials.
Because as things stand, Rishi Sunak is governing like John Major at his weakest. On Monday, he caved to a 50-strong rebellion over the online safety bill; the rebels, led by Miriam Cates, agreed to pull their amendment after drawing key concession from DCMS sec Michelle Donelan. It was hardly the first time Sunak has succumbed to backbench manoeuvres. In December, Sunak backed down on both onshore wind and centralised housing targets in the space of a week.
The prime minister sold himself to the Conservative party in October as a competent business-as-usual type of prime minister. But business-as-usual, right now, is ritualistic rebellion.
This issue for the prime minister right now is that when it comes to the NI Protocol, things may prove no different.
One politically difficult issue yet to be resolved on the NI Protocol is that of “governance” and the jurisdiction of the European Court of Justice (ECJ). This means that even if the UK and EU manage to vastly reduce the number of physical checks for goods travelling into Northern Ireland and resolve the question of what regulations goods circulating must comply with, the issue of who should be the final legal authority on NI’s new customs arrangements would be outstanding. The EU want this final authority to be the ECJ, a position that is rejected by the UK government.
Ultimately, a compromise over the ECJ may prove politically costly for Sunak. Sticking to the line it held from 2016-2019, the DUP wants Northern Ireland to be treated on the same terms as the UK; this makes any role for the ECJ in the six counties untenable.
But perhaps of more pressing political concern for Sunak is that a compromise over the ECJ’s role may fall short of standards set by Brexiteers in his own party. Hardliners in the European Research Group (ERG) have consistently argued that the court is an affront to UK sovereignty — and, like the DUP, have demanded its jurisdiction be removed from any part of the United Kingdom.
The ECJ and the ERG
After backing Liz Truss in the summer leadership contest, members of the ERG could not agree between Penny Mordaunt and Rishi Sunak as potential replacements. In lieu of an endorsement, the grouping sent out a coded message to Truss’ predecessor, which serves now as a warning to Sunak. In a statement, ERG chair Mark Francois said he was satisfied that both candidates would take “a very robust line on the Northern Ireland Protocol, up to and including, if necessary, utilising the Parliament Act to ensure that the Northern Ireland Protocol Bill reaches the statute book”.
First introduced by Boris Johnson’s government, the Northern Ireland Protocol Bill has been treated like a loaded gun by EU negotiators. If passed, it would unilaterally override parts of the protocol something the EU says would break international law.
Despite what he may have said to the ERG in hustings mode, Sunak has since made clear his preference for reaching a negotiated settlement on the issue of the protocol. The NI Protocol Bill has had its progress paused in the Lords and there is no suggestion that No10 is considering using the Parliament Act to ram it through.
But since Sunak took office, ERGers have maintained that they see the NI Protocol Bill as a necessary option — sticking to their guns that it may be the only solution to ending the ECJ’s jurisdiction.
“The ERG would certainly want to see the constitutional integrity of the UK restored, which is not the case at the moment”, David Jones, the ERG’s deputy chair, told the Daily Telegraph recently. “We do not like what we are hearing about the direction of travel. The prime minister should not sign a deal which leaves part of the UK under EU legal jurisdiction”, another senior member of the ERG told the Sunday Times.
Unfortunately for Sunak, these are the comments of grouping girding for a fight. Indeed, given that Sunak has already shown a willingness to cave in to backbench rebellions, what is stopping the ERG from pushing back on an unsatisfactory resolution? Sunak has a 69-seat majority and the 50-plus members of the ERG could prove decisive.
This is where Labour comes in. In a speech last week, Sir Keir Starmer savvily offered the prime minister “whatever political cover you need” if the government faces internal opposition to protocol resolution from within his party. Urging the prime minister to ignore inter-conservative factional disputes in the “national interest”, he promised Labour votes to force a protocol resolution through.
“The time to stand up to the ERG is now”, Starmer said. “The time to put Northern Ireland above a Brexit purity cult, which could never be satisfied, is now”.
Naturally, Starmer’s proposal is a poisoned chalice. He knows that any prime minister who relies on Labour votes to get business through, especially on the matter of Brexit, will be labelled a traitor to the Conservative cause.
Back in 2019, Theresa May briefly tried to negotiate with the Labour frontbench, including Sir Keir as Brexit secretary, in order to hoist her doomed deal through parliament over ERG heads. For many on the Conservative backbenches, this was a final desperate act of her ailing ministry. May was forced to resign a month later.
Given the political stakes and the poor optics, Sunak will be trying his utmost not to rely on Labour votes to pass his protocol solution. It means the prime minister must be ready to face down the 50 or so Conservative MPs who could try to kill off an unsatisfactory deal.
If it comes to this, it will be interesting to see whether any “big beasts” — including former prime ministers — indulge in a potential rebellion. Might Boris Johnson join the rebels and urge the government to pursue the Northern Ireland Protocol Bill, unilaterally disapplying parts of the protocol with immediate effect? In this instance, might other Johnsonite MPs see a rebellion on the protocol issue as an opportunity to challenge Sunak’s authority and, even, oust him once and for all?
In a guarded message to Sunak at a portrait unveiling at the Carlton Club last week, Johnson said his party’s fortunes would be transformed when the public realised “only one party really believes in Brexit” and that “only one party believes in the union with Northern Ireland and will pass the necessary laws to protect the economic integrity of the UK”.
All the signs point to a protocol resolution not being a straightforward win for Sunak. In fact, compromise with the EU on post-Brexit arrangements in Northern Ireland could result in the reopening of old Brexit wounds and reinvigorate the Johnsonite wing of the party.
As ever, intense political challenges await the prime minister. The spectres of Brexit and Boris Johnson still loom large over this Conservative party.