The date for the UK to introduce a bill to dismantle the Northern Ireland Protocol keeps shifting, and it may be contingent on when Boris Johnson faces a vote of no confidence.
The anticipated date was Monday. That slipped to Tuesday, then Wednesday. In the meantime, the number of Tory MPs who have sent letters to Sir Graham Brady is getting closer to the 54 threshold (if it has not already reached it).
That suggests that Sir Graham could hold the confidence vote as early as Tuesday. Alternatively, if rebels feel they have a better chance of actually winning the vote, they will wait until after the two by-elections on 23 June, which the Conservatives are expected to lose.
It is possible, therefore, that the legislation could be placed on hold until the confidence vote.
"Assuming Johnson survives the confidence vote," says one source close to the Conservative Party, "it would make a huge amount of sense from their perspective to bring [the bill] in straight away afterwards, to show that Johnson is on it, he's being active and being dynamic, he's got a plan".
Alternatively, Downing Street could bring the legislation out ahead of the confidence vote. "If you want to lock down the ERG [European Research Group] you would publish early, lock it down and make it robust so they like it," says one Irish official.
The way Johnson’s Brexiteer wing has seized on remarks by a Conservative backbench critic Tobias Ellwood, who suggested the UK should rejoin the EU single market to help with the cost of living crisis, is an indication that loyalists are delighted to portray this as a 'remainer plot’: who would sacrifice the leader who got Brexit done?
Indeed, the Twitter slapdown by MP Tom Tugendhat of Ellwood’s idea is widely seen as Tugendhat burnishing his own leadership credentials.
What can we expect when the legislation does appear?
London has privately told Dublin that two options are being considered. In one version, the bill will simply give ministers enabling powers to disapply elements of the Protocol at some point in the future.
In the second, the bill will in itself, once enacted, immediately disapply key parts of the Protocol.
In recent days the second, harder option appears to have become the preferred choice, winning favour precisely because of Boris Johnson’s faltering leadership.
Sources familiar with the process say a tussle has been going on between the hard and soft options, and within the past 10 days the more hardline version has prevailed (although things could ebb in the other direction at the last minute).
It boils down to a choice between a blatant breach of international law or a theoretical, potential breach at some point in the future.
The hard option may specify on the face of the bill that it expressly disapplies the Protocol, most likely Articles 5-10 (which cover the movement of goods between Great Britain and Northern Ireland), that it will abolish checks and controls on those goods, and that it will give effect to Liz Truss’s idea of green and red lanes at Northern Ireland ports.
It could also specify that EU rules on VAT and competition will no longer apply in Northern Ireland and will be replaced by British rules. And it could specify that the European Court of Justice (ECJ) will have no role in the settlement of disputes between the UK and EU in respect of the Protocol.
Either option implies a repeal of Section 7(a) of the EU Withdrawal Act, the provision which makes the Protocol supreme in British law. With Section 7(a) still in place, any move to tamper with the Protocol would prompt a court challenge.
Either option will also breach international law as they unilaterally tear out the Protocol’s most important provisions.
Why should Downing Street choose the hard option?
In blunt terms, it is because Johnson desperately needs the support of the ERG, the cohort of right-wing eurosceptics within the Conservative Party in a no confidence vote.
They are not the force they were under Theresa May (because Johnson won an 80 seat majority), but they are still important. They have demanded that the Protocol be ditched or altered.
"The bill has got to look tougher to the ERG," says one source familiar with the process. "But we are past the point of the original option, which was just [to give ministers] a broad power to make changes, ring fenced from Section 7a."
The belief is that for Johnson to win over the ERG he will need to show action on the Protocol immediately, and not at some point in the future.
The ERG believes the integrity of the United Kingdom is endangered by the Protocol
It’s understood a sizeable number of those who have sent letters to Sir Graham Brady are Brexiteers. If Johnson wants them to withdraw those letters or support him in a confidence motion, this is one way to do it.
Furthermore, while he is facing flak for drifting from core Conservative values by raising taxes and increasing state intervention, Johnson can fend off those charges by placating the ERG’s British nationalism.
The ERG believes the integrity of the United Kingdom is endangered by the Protocol because it leaves a vestige of EU influence on British territory.
In its February 2021 paper entitled "Re-uniting the Kingdom: How and why to replace the Northern Ireland Protocol," the ERG repeatedly depicted the Protocol as a "constitutional" and "cultural" threat to the United Kingdom, and that it threatened the UK’s "peace and stability".
In remarkably similar terms, Liz Truss has said the Protocol was now a matter of "internal peace and security for the United Kingdom".
The ERG paper said if the European Commission refused to contemplate the idea of the "mutual enforcement" of each other’s rules on regulating goods, then London should "consider instigating domestic legislation to replace the Protocol".
That was all of 16 months ago. The UK government is now obliging.
One British source puts it: "Increasingly, the ERG are saying they view the Protocol in its current form as threatening, not just to Northern Ireland, but also to Scotland, potentially to Wales as well, because it sets such a dangerous precedent."
The idea that EU single market rules will still apply in Northern Ireland is offensive to the ERG, which wants the whole of the UK to be free from Brussels, and this is what also informs Jacob Rees Mogg’s campaign to expunge "retained" EU law from British statute books.
'Because the EU's doing it is no argument for doing anything anymore'
It’s understood the Brexit Opportunities minister insisted (as early as last autumn) on a trigger or sunset clause being inserted into early drafts of the legislation that would jointly do away with retained EU law and the Protocol.
In this way, retained EU law, which still permeates much of the UK’s statute books, would cease to exist by a certain date, effectively forcing a recalcitrant Whitehall to replace the legislation with British rules by a cliff edge date.
One example is Rees Mogg’s desire to ditch devices limiting speed in UK cars which are a legacy of EU rules. "We may be putting speed limiters on people’s cars because the EU’s doing it. Because the EU’s doing it is no argument for doing anything anymore. We want to get away from this mentality," he told the European Scrutiny Committee on 14 May.
Since the Protocol and retained EU law legislation have been drafted in tandem, a trigger clause could also apply to the Protocol, so that by a certain date Articles 5-10 would no longer apply.
It’s understood that in recent days there has been some back and forth on this. It seems clear that this will not go far and fast enough for the ERG.
Whether Johnson goes for the hard or soft option, the EU will obviously regard both as a flagrant breach of the Withdrawal Act.
"The response from [EU negotiator] Maroš Šefčovič will be measured, but nonetheless firm and calibrated to what the UK are doing," says one Dublin source. "But it won’t help them get a landing zone to be taking unilateral action in this way. If they’re seriously willing to find solutions they have a sincere partner on the other side of the table waiting for them to engage."
The EU’s retaliation includes unfreezing legal action, dating back to three previous alleged breaches of the Protocol, with potentially new infringement proceedings added.
If the bill becomes law then the EU could respond with trade measures, up to and including suspending the Trade and Cooperation Agreement (TCA).
Some British sources depict a relatively benign scenario, however.
The bill takes a year to become law, and the legal action against the UK also takes a year before the ECJ issues a ruling.
Within that time frame, presuming that both sides dial down the rhetoric and keep talking, a landing zone could be found where checks and controls on GB-NI goods are substantially reduced.
In this scenario, the UK’s green lane and the EU’s express lane (for goods not at risk of entering the single market) are fused into an acceptable compromise.
The EU does not want to get into a trade war and would rather the Protocol standoff be resolved
If momentum were to be found, then other smaller but symbolically important issues like the movement of plants and seed potatoes, and the need for pet passports, could be sorted out.
A fudge may also be found on the issues of VAT, EU competition rules and even the role of the ECJ.
Since the DUP has spoken of a "pathway" to returning to Stormont, a choreography could materialise whereby Stormont is restored by degrees as bits and pieces of an overall deal are concluded. The election of a speaker to the Assembly could be one such milestone.
This is certainly not unimaginable.
The EU does not want to get into a trade war and would rather the Protocol standoff be resolved once and for all.
It is certainly true, according to several sources, that the EU has further concessions in reserve if the UK properly engages in the four October proposals (on medicines, customs, agrifood checks and an enhanced role for Northern Ireland stakeholders).
There are 24 weeks for the Northern Ireland Assembly to vote for a First and Deputy First Minister, and once that elapses the Northern secretary Brandon Lewis has another 12 weeks in which to call a fresh election.
In one scenario, the talks could deliver enough so that an election may not need to be called.
However, past experience shows that there are many pitfalls.
The EU does not trust Johnson. His perpetual need to pander to his eurosceptic base (to the tabloids), not to mention the jockeying for his job if he loses a no confidence motion, all suggest that a measured and respectful engagement with the European Commission is simply not within his nature.
Add to that the very high bar set by the DUP for returning to Stormont and the electoral damage it would sustain if it settles for something considerably less than a filleting of the Protocol.
Past experience also shows that concessions from the EU are pocketed and then more demands are made.
By late October, if there is no agreement then there would be fresh elections in Northern Ireland
Already, the EU has declined to take up Liz Truss’s offer of an EU-UK Joint Committee meeting because the UK’s baseline for talks is not the Protocol or the October proposals but last July’s Command Paper, which is what London wants the Protocol replaced with.
"If anybody was approaching this as the task of finding an agreed way forward but openly negotiating with a gun on the table, it is not going to improve the mood music," says one official.
All that means that a less benign scenario has to be thought through.
By late October, if there is no agreement then there would be fresh elections in Northern Ireland, and who knows what impact that will have on the process.
Then as we get into spring 2023, absent a breakthrough, and if Boris Johnson is still keeping the ERG on board, it is possible the legislation disapplying the Protocol will become law.
In that scenario, relations between London and Brussels will plummet and a trade war cannot be ruled out.
The more serious question is, what becomes of the consent vote which has to take place before the end of 2024?
Under the Protocol, MLAs will vote on Articles 5-10 of the Protocol, but what if the UK has legislated those articles out of existence?
The logic of the UK position is that the consent vote will have to be about what Liz Truss has called a "new, revised" Protocol.
This will mean conflicting legal realities, with Northern Ireland politicians - not to mention businesses - grappling with two rival Protocols, one recognised under international law, the other a creature forged unilaterally by the UK government.
By then companies shipping goods into Northern Ireland will be operating under British law, because the UK will have neutered the primacy of the Withdrawal Agreement in the UK statute book. Traders will primarily see London as the sovereign legislator.
The Protocol will remain in place if a simple majority of the Assembly says so in 2024
Despite the benign timeline being suggested by some within the British system, sources close to the cabinet believe that ministers do not want MLAs to be voting on the Protocol as is, by 2024.
"There's no question that the British government wants the Assembly to be voting on a different version of the Protocol in 2024," says one source. "And that means not the EU’s version. It is very, very clear that the British government doesn't want to be still voting on the EU version by then."
That suggests ministers want to play the hard option to the bitter end.
But Northern Ireland MLAs may not be impotent bystanders. If a follow up election delivers another pro-Protocol majority, those parties who want it to stay will have a very strong case to say in 2024 they are being denied a democratic vote that has been mandated by international law.
While the Protocol is clear that the UK must give effect to the consent vote (Article 18 says "the United Kingdom shall provide the opportunity for democratic consent in Northern Ireland to the continued application of Articles 5 to 10"), the Assembly itself could hold a vote if the UK refuses to comply with Article 18, even if it is not sitting.
Another possibility about which Dublin is deeply concerned is that the UK legislation might declare that the consent vote shifts from the simple majority to the cross-community mechanism.
Not only would this restore the unionist veto (rejected during the creation of the Protocol) but it would also set a worrying precedent.
So far, suggestions that the UK might include this in the bill are at the level of rumour (one UK source categorically denied it would be the case).
However, the UK has so relentlessly complained that the Protocol does not have cross-community consent that it has been elevated to a sacred doctrine.
Therefore, enshrining cross-community consent in their own legislation must be tempting, especially if Downing Street is impervious to entreaties from far and wide not to legislate to demolish the Protocol.
What alarms Dublin is not just that this would be flagrantly rewriting a key component of the Protocol, but that it would be tampering with the very precise nature of the concept of consent within the Good Friday Agreement (GFA) itself.
The GFA limits cross-community consent to very specific and limited occasions, such as the appointment of a speaker, for matters which are clearly within the limits of devolved competence, or for Strand One matters involving a petition of concern.
"That's why when the consent mechanism around the Protocol was being negotiated, there wasn't a requirement for a cross-community vote because that was not required under the GFA," says one EU diplomat.
Under the Protocol, cross-community consent is desirable but not essential.
The Protocol will remain in place if a simple majority of the Assembly says so in 2024 and another vote does not have to take place for another four years.
If, by chance, the cross-community threshold were also reached, then another consent vote would not have to take place for another eight years.
Senior Irish figures wonder if, having unilaterally created a new role for the cross-community mechanism because the Protocol allegedly impacts on the sovereignty of Northern Ireland, Downing Street might be tempted to extend it to areas within the GFA itself, such as the provision for a border poll.
"The Protocol doesn't impact on the sovereignty of Northern Ireland," says one Irish source. "But if people are now arguing that a cross-community vote is required, what does that mean for a border poll, which does impact on the sovereignty of Northern Ireland?
"By the same logic people would say, yes we need to have a cross community vote on that as well."
This will be a long and tortuous road.
