On 9 February, Boris Johnson told the House of Commons that unless the Northern Ireland Protocol commanded "cross community support" the UK would take action to change it.

"If our [EU] friends won't agree, of course we will implement Article 16," Johnson said.

The Article 16 ship has sailed (last November Johnson pulled back from triggering it) so legislation to disapply parts of the protocol is now on the cards. How a bill to do that will emerge, and how far it will go, means that next week's Queen’s Speech will be keenly watched.

Once again Boris Johnson is planning a clash with the EU over the protocol, which he negotiated and signed, and once again a weary EU is preparing not to overreact.

"Is the threat related to a serious concern about the situation in Northern Ireland?" asks one EU diplomat. "Or is it about preserving Boris's political position?

All the EU's energy is focused on Ukraine, and a confrontation perceived to be about Johnson's own position vis-a-vis the European Research Group (ERG) will go down very badly in Brussels and Washington.

Nonetheless, a confrontation looks to be on the cards. The UK has amplified its message that the EU's proposals to reduce the burden of the protocol don't go far enough, and now the mantra that it must command cross-community support has been fine-honed and repeated relentlessly.

To the Irish Government that reasonable-sounding refrain ignores the fact that Brexit did not even have simple majority support in Northern Ireland, never mind cross-community support.

Furthermore, both the concept of consent when it comes to Northern Ireland's constitutional position as per the Good Friday Agreement, and consent regarding the protocol, are different to what the UK government seems to be demanding.

'Consent' Clause

The "consent" clause in the Northern Ireland Protocol was a very subtle and carefully worked out element of the October 2019 Withdrawal Agreement.

Boris Johnson had become prime minister in July 2019. He promised to bin the Northern Ireland "backstop" and instead convince the EU to create a hi-tech customs and regulatory border on the island of Ireland.

Whereas Theresa May had argued that a high-alignment EU-UK trade agreement would avoid the need for such a border, Johnson did not want to stay closely aligned with the EU.

However, the UK prime minister met implacable opposition from Europe and Dublin.

Even when he conceded to an agri food border on the Irish Sea, he still wanted customs clearance on or near the land border.

Angela Merkel, the German Chancellor, told Johnson directly that wasn't going to happen.

With time running out there was a last minute meeting between Johnson and then Taoiseach Leo Varadkar in the Wirral on 10 October. It produced a miraculous, last minute deal.

Leo Varadkar and Boris Johnson at the Wirral

Instead of a "backstop" that might take effect if the trade agreement didn't work (Theresa May's approach), there would be a "front stop".

Northern Ireland would remain in the single market and apply EU customs rules once the Brexit transition period ended, but the arrangement would be subject to a "consent" vote in the Stormont Assembly.

In the final days of the negotiations, London had pushed for a time limit to any new arrangement, to no avail.

However, the consent vote would be a kind of time limit, and would also show Ireland in a positive light. Dublin was trying to help Boris Johnson and at the same time ensure that Northern Ireland wasn't coerced in the protocol against its wishes.

"The Liverpool bargain is," explained a senior EU official at the time, "that the EU and Ireland can't not engage in something that is framed as democratic.

"But also, it's a clever way to talk about a time limit without talking about a time limit, by talking about consent. You wrap the two together. You enrobe the time limit into consent.  That makes it difficult not to talk about it, but also much easier to sell."

Unionist veto

Boris duly sold it to British voters - but not to the DUP.

The DUP had furiously demanded a Stormont vote on a cross-community basis before the deal came into effect. Boris Johnson tried this position, but backed down within 48 hours of the deal being struck.

Dublin and the EU regarded Stormont’s cross-community mechanism as a unionist veto. It was not a runner.

Two-and-a-half years on, Dublin and Brussels suspect London is attempting to revive that unionist veto.

That is because of this week's Stormont elections. DUP leader Jeffrey Donaldson has said his party will not re-enter the Assembly and Executive until the Irish Sea border is gone.

London has gone along with this position. Officials argue that if Sinn Féin win the largest number of seats, and the DUP refuse to return to Stormont, then the ensuing crisis will mean that the protocol cannot possibly continue to operate as is.

Irish officials have pointed out to senior British figures that a majority of MLAs are currently not opposed to the protocol, and that after Thursday's assembly elections that number may well have increased.

Would London recognise that democratic support for the Northern Ireland Protocol?

British officials responded that that does not matter. What matters is that the Northern Ireland institutions need a Deputy First Minister, and they won't get one unless the protocol is renegotiated.

To Dublin this is an elegant way of recreating the unionist veto. To the EU it's another gun on the table. To the UK it is about protecting the Good Friday Agreement.

However, it overturns a core element of the Liverpool compromise, the one which unlocked months of agony, namely the consent clause.

Under the protocol, the Assembly would be given the chance to consent to Articles 5-10 of the Northern Ireland Protocol (the parts which deal with the movement of goods) in 2024. However, the UK legislation to disapply elements of the protocol will potentially sweep that off the table.

Andrew McCormick, a senior Stormont official who was closely involved in the negotiations for five years, is adamant that during the Brexit talks the UK government had accepted that consent would be based on a simple majority at Stormont, and not through the cross-community mechanism.

"The fact that that Withdrawal Agreement envisages a different effect from cross-community consent makes it explicitly clear that the [UK government] and the EU considered the implications of the absence of cross-community consent, and made a clear agreement that the protocol would continue to apply even if only a simple majority in the Assembly approved," he wrote in a recent paper for The Constitution Society.

"There is no possible foundation for any argument that cross-community consent is required for constitutional change - either on the functioning of the union itself, or on Brexit, or the protocol."

Queen Elizabeth delivering the Queen's Speech in the House of Lord's Chamber in 2019

It now seems clear that the Queen's Speech next week will not spell out what that legislation will look like. Rather there will be a vague reference to "protecting" the Good Friday Agreement.

Downing Street is expected to brief journalists afterwards on what that means, but may not bring the legislation forward for some time.

It will, in the words of one diplomat, be the dance of a thousand veils. London will issue teasing threats of legislation to overturn the protocol in order to jolt the EU into a much more fundamental renegotiation.

Already Downing Street has briefed lobby journalists that Boris Johnson is giving the EU "one last chance" to fall into line and change the mandate that member states gave their chief negotiator Maroš Šefčovič.

The EU having been "jolted", the UK can then show the DUP that Brussels is in a more flexible mode and the subsequent concessions will prompt the DUP to return to Stormont.

That, according to EU sources, appears to be the plan.

The long game

However, the prospects of it working appear limited. Both the Dutch Prime Minister Mark Rutte and German Chancellor Olaf Scholz strongly warned Johnson against dismantling the protocol through legislation during separate meetings in Downing Street.

"Against the current volatile situation in the UK with all these elections and the political turmoil in London around partygate, why would the EU engage in some sort of review of its position?" asks one EU diplomat. "Everybody is just sitting tight until the situation in London becomes a bit clearer."

Playing the long game - holding off on spelling out the legislation - would allow Johnson to keep restive eurosceptic Tory MPs on board, limiting the chances of a leadership heave, and all the while testing the waters with individual capitals, and with the Biden Administration.

The Spectator's James Forsyth, normally an accurate reflector of Downing Street thinking, said that Johnson had already sent Belfast-born ally Conor Burns MP - described as a Catholic unionist - to Washington to massage away any concerns, and that Johnson would also work on French president Emmanuel Macron.

"This time, No 10 will declare that it is acting lawfully," Forsyth wrote this week. "The attorney-general, Suella Braverman, has yet to deliver her verdict, but ministers are convinced by the argument that there is no breach of international law because they are moving to protect the pre-existing Good Friday agreement. Johnson can argue that all three strands of that deal are now in trouble. There is no power sharing, no north-south ministerial collaboration, and the protocol disrupts east-west relations."

An anti-NI Protocol sign in Larne

Such logic prompts eye-rolling in Brussels. Sources say that member states are united on the protocol, taking their cue from Maroš Šefčovič and the Irish Government. Emmanuel Macron has a fresh five year mandate; while the French are not necessarily the hardliners on the protocol depicted in the British press, Macron will not deviate from the view that the UK must honour its international treaty obligations.

A "phony war" cannot be discounted. However, if the UK tables the legislation and then seeks to make it law, the European Commission will have a calibrated response, depending on the nature of the legislation and how far it goes in dismantling the protocol.

"It would depend on what they do, the scope of what they do, when they do it, how it plays into the whole situation in Northern Ireland," says one diplomat. "The reaction to the Queen's Speech will be very cool, there will be a short statement about the need for joint solutions. The EU reaction will only become serious if the UK actually tables legislation."

This week the European Commission shared speaking points with member states, conveying the seriousness of the threat to once again breach an international treaty, at a time when the West is trying to maintain unity in the face of the Russian war against Ukraine.

The note pointed to the "unfortunate" timing of the Queen's Speech which would be coming a day after the Russian army had paraded its wares in Moscow on Victory Day.

Dublin believes that the UK system is divided between those who believe a collision course is ill-advised, and those who believe now is precisely the time to take advantage of an EU distracted by the invasion and the sprawling energy, refugee and cost-of-living crises it has engendered.

The UK Cabinet appears to fall into the latter category.

Foreign Secretary Liz Truss has steadily darkened her rhetoric since she took over from David Frost as protocol negotiator last December.

She has moved from depicting herself as a dealmaker, talking of a sweet spot where the negotiations could land, to demanding that Maroš Šefčovič get member states to change his mandate, to now hinting that because he hasn't changed his mandate the UK will take unilateral action.

Liz Truss and Maroš Šefčovič pictured during a meeting in London on 11 February

Indeed, contact between Truss and Šefčovič has largely ground to a halt during the election campaign, with just one phone call and an exchange of letters over the EU's access to UK databases.

There are conflicting narratives over how the election period was supposed to be managed in terms of the ongoing protocol negotiations.

EU diplomats say both sides had agreed they would not publicise any breakthroughs for fear that one party in Northern Ireland or another would pocket the concessions then ask for more.

One diplomat said the Commission had sought to keep low level technical discussions going, but that its request to London had gone unanswered.

Progress on customs

At the end of March British officials, by contrast, were saying it would be better to try and get agreement on "one or two" issues so that both sides wouldn’t then be left with five or six "big gap" issues on the morning after the election.

As to what those gaps are, the European Commission circulated a "gap analysis" paper to member states at the end of February containing around 25 problem areas.

Earlier this week, the European Commission conveyed a further update to Irish officials. According to one source there has been "significant" progress on customs.

Last October the European Commission proposed a simplification of customs formalities on goods moving from GB to Northern Ireland which it claimed would mean a 50% reduction in paperwork.

This would build on the concept that a sizable amount of goods going from GB wholesalers to retailers and end consumers in Northern Ireland were "not at risk" of moving across the border and into the EU's single market.

Under the EU proposal, a range of facilitations would be extended to goods "not at risk" depending on the status of the sender and recipient, the business activity involved, the nature and value of the goods, whether they were consignments or parcels, and the record of compliance by the companies involved.

According to an agreement by both sides in December 2020, those companies who operated on both sides of the Irish Sea and who shipped "not at risk" goods from GB-NI would be facilitated by a UK Trader Scheme (UKTS), and called "trusted traders".

In June 2021, however, the UK unilaterally extended this scheme to companies that were only established in GB, and changed various criteria so that more companies could avail of the scheme than originally agreed.

In the talks which began after the Commission’s October proposals, the UK demanded that some of the customs formalities relating to "not at risk" goods be reduced or removed altogether.

According to the European Commission’s roadmap, the UK was continuing to demand that the UKTS scheme be extended to all traders in GB.

"As regards customs formalities, with the exception of parcels, the UK could accept that certain customs formalities apply and certain data elements be collected on 'goods not at risk' imported into NI by 'trusted traders'," the memorandum said.

"The UK authorities and the Commission services are currently carrying out an assessment of the gap between the respective positions as regards the information on the forms to be submitted in such movements."

It is that "information on the forms" that has proved difficult, but according to EU diplomats, not insurmountable, in the most recent talks.

These related to lines of data and information needed in a customs declaration for those "not at risk" products.

The Commission had proposed reducing the number of lines from 80 down to 30, with the UK wanting the figure reduced further to 27.

But the big scrap was over one particular line - the CN, or "combined nomenclature" code.

For the EU, this is a fundamental series of digits which codify important information about the origin, nature and destination of a particular good.

The problem for the UK is that the CN code conveys the notion of "international trade", a concept they want to get rid of because they regard it as intra-UK trade.

"The UK is resisting anything that gives the look and feel of a trade relationship," said one official familiar with the talks at that time. "They're refusing to acknowledge the fact that products going from GB to Northern Ireland are effectively going through a customs procedure."

And yet progress was being made, as reflected in the EU's roadmap.

"If there was a willingness on both sides," said one diplomat this week, "these are not differences that cannot be bridged. On the customs issue and CN codes, do you call them something else? Is it international trade or is it not? They seem eminently resolvable if both sides wanted to resolve them."

However, by late March UK officials were still complaining that the EU's proposals still had too much "process".

London was still not in a position to argue that the protocol facilitated fluid enough trade to sustain positive east-west economic activity, nor that the EU's concessions removed the "visible signs of a trade boundary" which were antagonising unionists on the "identity" issue.

Whereas the EU's concerns on agrifood and sanitary and phytosanitary (SPS) controls were about human health (and there the gaps remain considerable) London regards customs as only about smuggling and fiscal threats - surely a less "societal" priority for the EU.

Impact on Good Friday Agreement

If London proceeds with legislation to dismantle the protocol, a more worrying concern for Dublin is the impact the standoff will have on the Good Friday Agreement itself.

There has been talk of the peace agreement requiring some sort of review, primarily because of the growth in centre-ground voters in the North (as graphically revealed in the Alliance's Party’s surge on Thursday).

The institutions were built on a sectarian designation system that was required in 1998 in order to knit the unionist and nationalist blocs together.

It arguably disenfranchises the Alliance Party in 2022, since it designates as neither "unionist" nor "nationalist" but "other".

The Irish Government believes that while an objective review of this unfair situation is warranted, it should only be carried out at a time of stability in Northern Ireland politics, and certainly not during a crisis in which the DUP is seen to be holding the Assembly and Executive to ransom in order to get what it wants on the protocol.

Dublin is concerned that after a period of crisis, London will push for such a review and that all sides will turn up with their own pet grievances about how the peace agreement does or does not work.

If unionism seeks to unshackle itself from the power sharing strictures, Sinn Féin and the SDLP might want tougher obligations on north-south cooperation, and so on.

For the UK government the risk calculus is now everything, and much will hinge on whether or not Boris Johnson’s position is not quite as bad as feared after the local elections.

It is, of course, possible that the protocol negotiations could pick up with renewed vigour now the elections are out of the way.

But in Northern Ireland there is always another danger on the horizon: the Marching Season, the Tory Party Conference, and on it goes.