Gerard McCann (St Mary’s University College, QUB)
The ongoing tussle between Downing Street and Brussels over the problematic Internal Market Bill has not been wholly unexpected.1 The political trajectory, where the United Kingdom (UK) government would willingly break international law, contravene already given governmental commitments and frustrate the workings of the Belfast Agreement, was predicable. The political culture that has surrounded the Brexit transition negotiations has been so toxic from day one that distrust and bad faith has come to dominate the practicalities of the process. With this new operational culture, the historic consensus on reciprocity, diplomacy and ‘building’, and of which the Belfast Agreement was a high point, has been seriously compromised by the deliberately acrimonious withdrawal negotiations. Set in this context and mixed with the ongoing, often bitter, competition for Brexit credentials within the Conservative Party, it leaves uncertainty amid disruption. Arguably, only the disruptive nature of political life in Westminster can be taken as a given.
In stating it as it is about breaking international law, the Secretary of State for Northern Ireland, Brandon Lewis, was not as much addressing the European Union (EU) as consolidating his own back bench by wielding power. The Withdrawal Agreement’s Northern Ireland Protocol was always going to be challenged and although the disregard for the propriety of the diplomatic culture of European Union member states was shockingly casual – ‘sparking things up’ as one Minister would call it – this erratic jostling has become part of a new political normal. What has been resolved with the problematic Internal Market Bill is not only the positioning of Downing Street à propos its need for unionist credentials, but it is also about facing down EU commitments to state aid, devolution and the border in Ireland (among other things). The bullishness can then be packaged as acting in defence of the Belfast Agreement and the British internal market.2
The nonchalant manner in which the various rounds of negotiation were handled would have suggested that key Articles would be reneged upon at some later point anyway. Indeed, the inaction of the DUP over the summer would suggest that assurances were given that direction, specifically in regard to the Protocol. The miscommunication was no more evident than with confusion around State aid. The Internal Market Bill moves to “disapplying, or modifying the effect of, Article 10” on EU regulations on State aid. On this policy, for example, red flags had already been raised in the Westminster Sub-Committees on the Withdrawal Agreement.3 George Peretz QC, in his evidence to the EU Internal Market Sub-Committee, stated that Article 10 provides that “any UK measure that has an effect on trade in goods between Northern Ireland and the EU (and Ireland in particular)”, “is subject to the full panoply of the EU State aid regime from the end of transition onwards”. He went on:
“When the UK Government signed up to that, they did not quite understand what they were signing up to … because it applies to any UK measure. It is not confined to things done by the Northern Ireland [Executive] or to Northern Irish measures; it potentially affects anything that the UK Government do. A UK measure is anything that any UK public authority does.”4
For most on the Tory and DUP benches, the Withdrawal Agreement was a rushed stopgap to get through factional fighting within the Conservative Party and a snap election. It was also absolutely linked to the sovereignty principle immediately after the election, a central plank in the referendum and fear that the Protocol would precipitate the breakup of the UK. State aid was a very telling policy breach, but there was also a lack of forward planning by the Johnson government etched across the Withdrawal Agreement – on agriculture, fishing, regional aid, services, movement, the border and customs.
Negotiating tussles and internal soul searching characterised the disruption throughout the summer and going into Autumn. This much came out on occasion. Michael Gove, Chancellor for the Duchy of Lancaster and non-portfolio Minister responsible for No-Deal Brexit Preparations, when giving evidence to the House of Commons Committee on the Future Relationship with the European Union and questioned on the issue of whether businesses based in Great Britain trading with Northern Ireland would be subject to EU State aid regulations, answered: “No, we do not believe so. The subsidy regime that the UK proposes to put in place after we have left the EU will be one that the EU will recognise as a robust system.”5 Disregard of the Withdrawal Agreement was very obviously in place as early as March. This matched his well-documented and visceral dislike of the Belfast Agreement. And, of course, there is Operation Yellowhammer, the emergency planning for a no-deal scenario and still a live contingency document.
As the Third Reading of the Internal Market Bill passed through the House of Commons with a substantial majority on 29 September (340 to 256), advocating breaking international law and as the House of Lords steadied itself for debate, there remains a need to read the mood and culture that currently pervades British government circles to get a sense of where this process is taking us, Irish and British alike. Sir Lindsay Hoyle, the Speaker of the House of Commons, in response to the libertarian instincts of the government, accused Ministers of “contempt” for parliament, of “undermining the rule of law”, “being unconvincing” and showing “total disregard for the House”. Coupled with the unprecedented proroguing of Parliament on 9 September last year and not respecting Royal Consent (a big constitutional faux pas under the British Constitution), the disruption seems set to continue.
From the EU side of the fight, Ursula von der Leyen, President of the Commission, in her notification of legal action against the UK Government, registered “a breach of the obligation of good faith laid down in the Withdrawal Agreement” (Articles 4 and 5), “in full contradiction to the Northern Ireland Protocol” and a flagrant violation of an international agreement. In terms of the negotiations with Brussels, the disrespect for Irish political and economic sensitivities and smoke and mirrors around what Brexit is actually about – disruptive innovation and British exceptionalism – we can assume that we will either have a bad deal on 31 December or an even worse Yellowhammer strategy on the 1 January. Both options will be acrimoniously dealt with.
- Internal Market Bill (September 2020) https://publications.parliament.uk/pa/bills/cbill/58-01/0177/20177.pdf
- HMG Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, CP 226 (20 May 2020); https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/886289/2020–05-20_Command_Paper__UK_s_Approach_to_the_Northern_Ireland_Protocol-gov.uk.pdf
- Withdrawal Agreement(19 October 2019), Protocol on Ireland/Northern Ireland, Article 10. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840655/Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Community.pdf
- House of Commons, Hansard, Oral evidence taken before the EU Internal Market Sub-Committee, 5 March 2020 (Session 2019–21), Q 17(George Peretz QC)
- House of Commons, Hansard, Oral evidence taken on 5 May 2020 (Session 2019–21), Q 22(Rt Hon. Michael Gove MP)
Gerard McCann is Senior Lecturer in International Studies and Head of International Programmes at St Mary’s College, Queen’s University Belfast
This analysis is part of a series of comments on ‘Northern Ireland in a Post-Brexit scenario’
Image credits: Flickr No 10 Downing Street, Prime Minister Boris Johnson visit’s Exeter College Construction Centre, Exeter