The UK Supreme Court ruling that the Northern Ireland protocol is lawful clears the final legal obstacles for Rishi Sunak to go ahead and conclude a deal with the EU to finally get Brexit done. However, he still faces a formidable political obstacle and will have to face down the same forces that scuppered Theresa May – the hard right of the Conservative Party, the Democratic Unionist Party (DUP) and the British Tory press.
The portrayal of the Brexit process from the beginning as a macho contest about who would blink first led the UK into the worst possible kind of deal with the EU, and the country’s current woeful economic state is testament to that. Sunak will need courage and a great deal of political skill if he is to succeed in his sensible ambition of finding a way of out the protocol impasse and building a new and better relationship with the EU.
As he ponders his options he would be well advised to read Inside the Deal: How the EU Got Brexit Done by Stefaan De Rynck, a Brussels official who was a leading member of Michel Barnier’s team. De Rynck outlines the course of the negotiations between 2016 and 2020 in a clear and unemotive fashion.
One of De Rynck’s central arguments is that the UK misread the EU’s intentions time and time again. “The UK’s expectations had a damaging impact on its negotiating tactics. It spent time and resources on trying to sway the EU into adopting another mandate than the one defined by EU leaders,” he writes.
Even if Sinn Féin wins as many seats as Fianna Fáil or Fine Gael, it has no obvious path to government
Outgoing Coalition has serious amount of work to do to persuade voters
There’s never been a better moment for a new left alliance to emerge
Simon Harris is not going to make the same mistake as Leo Varadkar
This prompted May’s futile effort to change the EU’s negotiating stance by attempting to peel off some of the most powerful member states, particularly Germany, from the united front so ably represented by Michel Barnier. Boris Johnson thought that threatening a No deal would shift the EU into dropping some of its core demands, but instead it was the UK which ended up by backing down and agreeing to the border in the Irish Sea, which it had said it would never accept.
Barnier did a brilliant job of keeping all of the member states as well as the European Parliament fully informed of the strategy at every stage in the negotiations
My own book, Ireland’s Call: Navigating Brexit, revealed that at times Taoiseach Leo Varadkar and some of his senior officials really feared that when it came to the crunch, Germany might throw Ireland under the bus. It never happened because Angela Merkel didn’t waver despite her natural inclination to keep the UK as close as possible for security reasons.
The other reason it didn’t happen was that Barnier did a brilliant job of keeping all of the member states as well as the European Parliament fully informed of the strategy at every stage in the negotiations, so that at critical points various EU prime ministers were prepared to tell him that if the deal was not acceptable to Ireland it was not acceptable to them.
[ The truth that Rishi Sunak dare not speak: Britain still needs the EUOpens in new window ]
The Slovak EU Commission vice-president, Maros Sefcovic, who took over the lead role in dealings with the UK over the implementation of the protocol, has been equally skilful in his approach. He, too, has consulted widely, kept the EU united and remained calm in the face of insults from the British side during the Johnson and Truss era.
Game changer
Sefcovic also went to Northern Ireland and made a determined effort to meet a cross section of groups and individuals, including business leaders, who had encountered problems with the operation of the protocol and he made serious efforts to moderate its impact.
The game changer in recent months has been the evidence of a decided change in the British approach since Sunak’s assumption of office. In his dealings with Ireland and the EU, he has abandoned the aggressive rhetoric and made it clear that he is interested in bringing the long-running and pointless confrontation to an end.
The big outstanding issue is the role of the European Court of Justice in adjudicating in any disputes that arise from the operation of the protocol
In recent weeks a number of reports have suggested that the two sides are edging ever closer to a deal. The UK made a significant move by allowing EU access to its customs data on goods moving between Britain and Northern Ireland, while the EU has moved by agreeing to a two-track system for goods destined for the North and those that are moving on to the Republic and potentially to the rest of the single market.
The big outstanding issue is the role of the European Court of Justice (ECJ) in adjudicating in any disputes that arise from the operation of the protocol. While the potential agreement on customs checks and the introduction of a separate lane for goods destined only for the North goes a long way to meet the DUP objections, the party is now focusing on the role of the ECJ.
The political reality is that there is probably nothing that is capable of satisfying the hardcore Brexiteers and the DUP, so Sunak will have to make a call on whether he can afford to call their bluff. With so much else on his plate and the American administration pressing him to do the deal, he may well decide he has more to gain by bringing the protocol impasse to a conclusion than dragging it on to appease a tiny minority in the House of Commons.