Britain has not actually abandoned threat to suspend parts of NI protocol

After weeks of sabre-rattling from the British government about unilaterally suspending the Northern Ireland protocol, Brandon Lewis appeared to signal a retreat on Wednesday night. The Northern Ireland secretary told ITV’s Robert Peston that there would be no such announcement in next week’s queen’s speech.

“No, Robert, we’ve not said that,” he said.

"What we've been clear about is, at the moment, the protocol is causing problems in civic society, it's causing problems with the Good Friday [Belfast] Agreement. Our duty to the people of Northern Ireland is to resolve those issues. Yes, we want to do that with the EU and that's what Liz Truss has been focused on."

Lewis tweeted later that his government would do “whatever it takes” to protect the Belfast Agreement, adding it was clear the protocol did not have unionist support and was not working for people and businesses in Northern Ireland.

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“We have to address the outstanding issues and we want to do that by agreement with the EU, but as we have always made clear, we will not shy away from taking further steps if necessary,” he said.

Lewis’s intervention, which came hours before polls opened for Northern Ireland’s Assembly elections, was widely interpreted as a climbdown and denounced as such by some unionists while others gave it a cautious welcome. But Britain has not, in fact, abandoned its threat to give ministers the power to unilaterally suspend the parts of the protocol that require checks on goods crossing from Britain to Northern Ireland.

The Spectator's very well-informed political editor, James Forsyth, reported on Thursday that the queen's speech would announce that the government would legislate "to protect the Belfast/Good Friday agreement in its entirety". This anodyne language is code for unilateral action to disapply the protocol, which Britain claims to be undermining the Belfast Agreement because it has prompted the DUP to walk out of the Executive and boycott North-South bodies and disrupted east-west relations.

Queen’s speech

If the announcement in the queen’s speech fails to impress the Europeans, the next step will be to draft legislation and introduce it in the Commons. It is likely to face amendments and possible rejection in the Lords, where they take a more straitlaced view of the government reneging on international treaties.

Conor Burns, a junior Northern Ireland minister who is close to Boris Johnson, will go to Washington to argue the case for tearing up the protocol, something Lewis – with whom Burns enjoys a tense relationship – has failed to do successfully on his trips there. Burns is unlikely to fare much better, not least because the relevant figures in Congress know too much about Northern Ireland and the Belfast Agreement to be impressed by the latest sophistry from London.

The unilateral action under consideration in London is more serious than article 16

At the heart of the dispute over the protocol is the British government's conviction that, as David Frost said last week, it was "essentially imposed under duress" because "the UK was not a fully sovereign power when we negotiated it". For the EU, it is an agreement freely entered into by both sides after a lengthy negotiation which must be upheld and implemented.

"A renegotiation of the Northern Ireland protocol is out of the question," Austria's Europe minister Karoline Edtstadler said last week after a meeting with Burns. "After it has been signed by both sides, one can at most talk about its technical implementation."

EU frustration

German chancellor Olaf Scholz gave Johnson the same message when he visited Downing Street last month, and Emmanuel Macron, who has not spoken to the British prime minister since his re-election as president, takes the same view.

British officials complain that Frost’s uncompromising negotiating style bore more fruit than the more conciliatory approach of foreign secretary Truss. They point to the EU’s offer to dramatically reduce the number of checks at the Irish Sea border shortly before Frost stepped aside and the fact that nothing much has been forthcoming since.

This frustration is mirrored in Brussels, where Maros Sefcovic is perceived to have stretched his mandate to the limit to offer major concessions that Britain has scoffed at or ignored. British unilateral action would signal the failure of Sefcovic’s approach and European Commission president Ursula von der Leyen would take charge of the issue.

Von der Leyen’s officials, with the backing of the member states, last year drew up a plan for retaliatory action if Britain were to trigger article 16. It envisages an escalating series of measures, from infringement procedures through tariffs targeted at sensitive British exports and culminating in the termination of the Trade and Co-operation Agreement.

The unilateral action under consideration in London is more serious than article 16, which is limited in scope and within the terms of the treaty itself. Europe’s response is likely to reflect that.