In February 2021, the European Research Group (ERG) published a paper entitled 'Re-Uniting the Kingdom: How and why to replace the Northern Ireland Protocol'.

It was a familiar invective against the protocol and the circumstances in which it evolved.

However, the paper zeroed in on the European Commission’s brief invocation of Article 16 on 29 January last year in relation to vaccine exports.

That episode had "created a unique political opportunity for the United Kingdom government to seek to negotiate a replacement of the protocol with alternative arrangements".

Sixteen months on, the ERG has secured something beyond their wildest dreams in February 2021. Instead of negotiating a replacement, the UK has invented its own protocol and given it draft legislative effect.

As one EU diplomat puts it: "The bill destroys the essential parts of the protocol and builds a UK model on top of it."

What seems clear this week is that the ERG has mounted a below-the-radar takeover of London’s policy on the protocol. In retrospect, the overnight change in Downing Street’s attitude to it - from grudging acceptance to outright hostility - can be traced back to that vaccine episode at the end of January 2021, which the ERG identified as the "unique opportunity".

The hostility began with complaints about how the EU was implementing the protocol and was galvanised by the "sausage wars".

Boris Johnson pictured a factory near Bedale in 2019

By last July, the European Court of Justice had to go, and by the autumn the UK negotiator, David Frost, had determined that the protocol itself was a threat to the constitutional and territorial integrity of the UK.

Reporting by the Financial Times this week revealed the degree to which the ERG was intimately involved in the final drafting of the bill. "The ERG was driving it," a former Tory cabinet minister told political editor George Parker.

The ERG had become increasingly resentful that a pure Brexit had not yet been delivered. There were still over 2,000 pieces of retained EU law in UK statute books.

By killing the protocol - and its role for the European Court of Justice (ECJ) - as well as EU VAT and competition rules, the ERG could plunge a stake into the final vestiges of EU law on UK territory.

The ERG’s prominent role has hardened opinion across EU capitals. They regard the bill as the latest example of bad faith, starting with the claims there would be no need for paperwork, to the Internal Market Bill (IMB) in 2020, to the unilateral extension of grace periods in March 2021, to threats to trigger Article 16 last November.

The view is that at every turn, London’s legal and political justification has been convoluted and disingenuous, notwithstanding the real concerns of unionists and businesses.

The doctrine of "necessity", used by London to justify the bill, has been widely criticised.

The doctrine evolved through Draft Articles on the Responsibility of States for Internationally Wrongful Acts, codified by the International Law Commission (ILC) in 2001.

If a state wants to no longer comply with an international treaty obligation, it can only do so if it "is the only way for the state to safeguard an essential interest against a grave and imminent peril."

The UK would be prohibited from using the "necessity" justification if it "seriously impairs" the interests of the other party, in this case the EU.

Nor could the UK invoke "necessity" if the Withdrawal Agreement precluded it or if the UK had "contributed to the situation of necessity."

The UK’s former chief legal officer, Jonathan Jones, dismissed the justification as "hopeless".

The Houses of Parliament in London

He wrote in PoliticsHome: "How can an agreement willingly entered into only in 2020, at what the Prime Minister described as a ‘fantastic moment’, be already proving so disastrous as to represent 'grave peril' to the country?"

This week, the EU’s legal services on the commission and council side briefed member states that the "necessity" doctrine did not hold up.

On Wednesday, John Watson, the Portadown-born deputy secretary general of the commission, repeated this view to EU ambassadors.

One diplomat said: "If you deviate, or don't fulfil your obligations, you have to make sure you're not hurting the essential obligations on the other side. None of the prerequisites are there."

EU diplomats say they are stunned by the scope of the bill. It removes from UK domestic law any legal effect, obligations or enforceability of key protocol provisions, such as checks on goods entering Northern Ireland.

It gives British ministers wide powers to replace those requirements with their own preferred systems, including a dual regulatory regime, which Northern Ireland agrifood producers have denounced, and which the EU has said would be completely unworkable.

In all, 15 out of 26 clauses confer powers on ministers to make "any provision the minister considers appropriate" in connection with the protocol and generally to determine how it should or should not operate.

Clause 18 provides that a minister may "engage in conduct in relation to any matter dealt with in [the protocol]" if he or she "considers it appropriate to do so".

However, it is the shutting down of the legal force of the protocol which has concerned the EU.

"The goodwill...has evaporated."

Clause 1 says parts of the protocol will no longer have effect in UK law, while Clause 2 makes clear that "excluded provisions" of the protocol "are not to be recognised...in domestic law...or enforced, allowed or followed accordingly."

"This automatic switch-off of the key parts of the protocol once the bill becomes law makes that - not any later point when ministers set new, replacement rules - the key point for the EU’s likely response," writes Paul McGrade, senior counsel for LexComm in a note to clients.

"That has been reinforced by the shock in EU capitals about how broadly the bill would dismantle the protocol, as well as their view that Boris Johnson's decision to do this during the Ukraine war is opportunistic. These three factors have cemented a view in key capitals, as well as Brussels, that the UK is not acting in good faith. The EU are very unlikely to negotiate on this basis."

Is any negotiation possible?

Both sides are pulling in different directions. Boris Johnson and Liz Truss need to keep the ERG on board, the former in order to remain prime minister, the latter to replace him.

The ERG has invoked its so-called star chamber of legal experts to ensure the bill remains intact and secures its maximalist objectives, otherwise its MPs will vote against the bill.

The DUP has said it will only go back to Stormont if the bill becomes law.

Since Boris Johnson has predicated the entire bill on the imperative of the DUP being coaxed back, he is locked into a hardline defence of it.

Downing Street wants the DUP to provide a written assurance that it will return to Stormont, and without it, there may be a hold up in the bill receiving a second reading on Monday.

DUP Leader Jeffrey Donaldson pictured following a meeting with Boris Johnson

However, DUP sources have told the newsletter that they would not be pushed, because they did not trust Boris Johnson, meaning they have at least that in common with EU capitals.

None of this encourages hope in a de-escalation. The EU has said it will not renegotiate the protocol (member states and the European Commission are completely united on this), but would resume talks "tomorrow" on the basis of its own October proposals on finding flexibilities within the protocol.

Yet, so publicly have the DUP and ERG staked their reputations on as hard a bill as possible becoming law, that for Boris Johnson to return to the EU’s October baseline would be such a climbdown, that even he would have difficulty depicting it as a victory.

"The goodwill that European Commission Vice President Maroš Šefčovič was trying to build with [Foreign Secretary Liz] Truss has evaporated," writes Mujtaba Rahman, managing director Europe of the Eurasia Group in a client note.

"He believes his UK counterparts are untrustworthy, a message he has relayed to President Ursula von der Leyen, who is already suspicious of Johnson. This feeling is widely shared in the bloc’s larger capitals."

The EU is therefore adopting a two-pronged approach: stay above the ERG/moderate Tory fray, while trying to convince hearts and minds among Northern Ireland stakeholders that the European Commission’s proposals can effectively deal with the issue that matters: reducing checks on the movement of goods.

Simon Coveney talking with French Minister Jean-Yves Le Drian in 2021

Dublin believes that, privately, the DUP could live with a protocol which has a significant reduction in the volume and complexity of customs and sanitary and phytosanitary (SPS) checks, with other issues such as pets, plants and seed potatoes being dealt with afterwards.

In short, the Irish Government believes the ERG has cajoled the DUP - against its own interests - into believing that ECJ, VAT and competition rules are life and death matters.

There is a view in Dublin and Brussels that London has a year between publication of the bill and royal assent to "come to its senses" and find a joint landing zone, which some UK officials believe as well.

To get that process rolling, the European Commission on Wednesday published two position papers fleshing out the October offering on customs and SPS.

On customs, the EU would widen the scope of the Trusted Traders Scheme (TTS) to take in more companies, including SMEs, meaning they would be regarded as shipping goods "not at risk" of entering the single market.

They could avail of a "super-reduced data set," meaning data elements on a customs declaration falling from 80 to 21, including the simplification of the irksome commodity code from 10 to eight digits, and with no need for supplementary declarations.

The commission said this could be expanded further "taking into account evidence from those sectors that are adversely affected by the protocol," with further flexibilities for firms processing products using GB inputs.

The European Commission published two position papers

On SPS controls, usually a much more sensitive area, the commission says a much-reduced regime of controls would be available to any authorised Northern Ireland retailer and their GB suppliers, regardless of size and including the hospitality sector, schools, canteens and supermarket distribution centres, so long as the food was packed and labelled for end consumers in the north.

At his news conference announcing the unfreezing of legal action, Mr Šefčovič brandished three pages, saying this was all that would be required for a lorry load of mixed goods going from GB to NI.

These offerings would involve the EU changing its own laws, but would be balanced by safeguards and preconditions on the UK side.

It is difficult to say if these more detailed proposals are new, with officials saying they simply flesh out last October's discussion papers, but if they are, it could be a sign that the EU is moving into more imaginative territory.

That partnership is now dead.

The SPS paper talks about the commission "presenting targeted proposals for amending relevant [EU] legal acts." Since food safety is a high priority for member states, the EU changing its own rules to suit GB-NI trade would be a significant step.

The initial response from the UK to the papers was negative, understandably, since the UK baseline is life before the protocol, whereas the EU baseline is the protocol with flexibilities.

These were not new proposals, a statement said, and because the EU would not renegotiate the protocol, the UK was "obliged" to change the parts that were causing problems.

The statement said the EU proposals would "worsen" the current trading situation, because grace periods are still in operation, but even the EU offer of "facilitations…[for] chilled minced meat or chilled sausages" was rejected, as the UK said these would still need a veterinary certificate.

Boris Johnson with Ursula von der Leyen in 2020

Overall, the UK said the EU's proposals would make life worse than it is now, in that they would replace the grace periods, and claims that customs formalities would be reduced by 50% and SPS checks by 80% are not accepted by London.

Mr Šefčovič’s three-page offer for a mixed lorry load was also dismissed as not accurate.

While the technical talks stalled on 11 February and there has not been detailed and public briefing of the state of play, it is impossible to say with certainty who is right and who is wrong, suffice to say that the UK was not going to suddenly embrace the EU suggestions in the same week they published the bill


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But the bill has already caused untold damage to relations between Brussels and London, and the three-way nexus of London, Dublin and Belfast.

Senior Irish sources point out that both Sinn Féin and the DUP have collapsed the Executive and Assembly on a number of occasions and each time it was put back together because of the strong working partnership of Dublin and London.

That partnership is now dead, say officials.

EU diplomats still believe, however, that when it comes down to it, there is ultimately not that much between the UK's demand for a green lane for goods demonstrably staying in Northern Ireland, and the EU's offer of an express lane with caveats.

All the other noise about the ECJ and the ERG’s outsized role in Boris Johnson disregarding the UK's international obligations, say officials, is an internal matter for the Conservative Party, and it will be up to the DUP what path it wants to take.

Diplomats say they are not naive, and if the benign option does not unfold, then a trade war is a possibility.

There is perhaps a year to avoid that scenario, but a year is a short time in Brexit land.