Prime Minister Boris Johnson pledged getting Brexit done. He did, by doing the unthinkable, erecting a trade barrier within the UK in order to avoid one between the Republic of Ireland and Northern Ireland. It appeared at the time a solution which could meet Johnson’s political aims: getting Brexit done, allowing the UK to deviate from EU internal market regulations (except for Northern Ireland which would stay within the internal market), and avoiding barriers between the Republic of Ireland and Northern Ireland in order to forestall a flare-up of the Northern Ireland troubles. Mr. Johnson was well aware that the solution would lead to political dissatisfaction of the Unionists in Northern Ireland, and with businesses as it would hamper the free flow of trade between the constituent parts of the United Kingdom, or should we assume that he was banking on it? Now, the British government discovered the obvious: the solution it signed is hampering the free flow of goods within the United Kingdom. Surprise, surprise? The UK knew all along that the Protocol would cause grave problems and that it would probably have to be renegotiated. The UK government vehemently denies it signed the Protocol in bad faith but if we take this at face value then the UK government stands accused of crass incompetence. The EU is to blame as well for knowingly signing a flawed Protocol. It did so fearing that Johnson’s UK would make good on its threat of going it alone with no deal with the EU whatsoever, which was probably an empty threat.

Revisiting the way the Protocol is functioning makes sense. Surely, there are ways to improve it, and we should applaud that the EU’s and the UK are sitting down to negotiate such arrangements. The Protocol is a botched affair, agreed upon because of political pressure within the UK to get Brexit done and fear within the EU that refusing a flawed solution would lead to worse outcomes. Should we be afraid that history will repeat itself? It is ominous that the British government seeks to exclude the European Court of Justice from supervising rules of a renegotiated Protocol, and its replacement with the general dispute settlement mechanism of the EU-UK Treaty. Who is not aware that such mechanisms are generally not very effective, slow, open to appeals to national jurisdiction, and in the end often lead to trade wars. Should we suspect that the UK plans using such a mechanism to avoid effective supervision of mutual trade between the Republic of Ireland and Northern Ireland, banking on the UK’s economic weight to avoid EU retaliation and a trade war for lesser breaches of whatever agreement the EU and the UK will arrive at regarding the Northern Ireland Protocol? In other words, it aiming at a high level over impunity for breaching the regulations? 

The EU should beware as it cannot be certain whether the UK may be trying to pull the wool over the EU’s eyes by planning a major breach in the external border of the EU. If the EU is planning to avoid getting the blame for a stand-off, it is playing a losing game. Chances are that whatever concession the EU makes, whatever arrangement will be made, the EU will nevertheless be blamed for the ill-conceived Brexit. Beware, a solution which will enable less scrupulous businesses exploiting lack of meaningful controls to circumvent the EU border controls, and import goods into the Republic of Ireland and onwards through Ireland. 

We must not neglect another possibility. The UK may be using the demand to exclude the European Court of Justice from supervising the Protocol as a bargaining chip to wring some concessions from the EU. If so, it would be fair ploy, in keeping with the excellent British diplomatic tradition, while  demonstrating to the world how the smaller, though far from insignificant, party can make the EU dance. Quite a different world from the usual one where the EU skilfully plays out its cards. The EU would only have itself to blame if it would fall into such a trap. The European Commission and the experts of the member states will  provide accurate information as to the content of any new deal that will be proposed. The question is whether the EU politicians will act on the briefs that they will be given. Trade negotiators take a long view, politicians have to weigh outcomes taking into account the next elections. They had weak knees, on all sides, agreeing a flawed Protocol. Will they make the same mistake again and drop legally binding remedies? If so, the blame should not be directed at the European Commission but at politicians which would have failed their electorates again in finding legally enforceable and sensible solutions within the purview of the European Court of Justice.