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LONDON — The U.K. is readying a “mad-man” plan to tear up key post-Brexit rules on Northern Ireland. That’s not the same as actually using it.
The idea — passing a domestic law to disapply parts of the Northern Ireland protocol — has not yet been finalized or presented to the U.K. Cabinet, but it’s seen as one way to shake up the chessboard as ministers grow frustrated with their inability to bring the EU closer to their demands, two people familiar with the proposals said.
As the EU prepares to resume talks after Thursday’s crucial election to the Northern Ireland Assembly, the U.K. is signaling it is ready to act if Brussels does not budge.
Yet experts say the U.K. has been here before — and that Britain could once more be misreading the EU.
“We’ve always wanted to resolve the problems by agreement with the EU but if that’s not possible and we have no choice, we need to do what we can to try to protect the Belfast / Good Friday Agreement,” a U.K. official said, referring to the agreement that guarantees peace in Northern Ireland.
They added no firm decision has been taken yet, because the government wants to wait for the outcome of this week’s Stormont election, in which Sinn Féin — staunchly republican and in favor of a united Ireland — is widely tipped to emerge as the largest party for the first time in its history.
It’s the latest twist in a long-running row over the the Northern Ireland protocol. A key part of the Brexit divorce deal, the protocol was designed to swerve what would have been a deeply contentious hard border between EU member state Ireland and its neighbor Northern Ireland after Britain left the bloc.
But the protocol has proven deeply controversial with Northern Ireland’s unionists, who instead see it as driving a wedge between the region and the rest of the U.K. by adding extra bureaucracy to trade across the Irish Sea.
The coming U.K. queen’s speech, teeing up the next parliamentary session on May 10, is expected to include plans for a bill giving the government new powers to replace parts of the protocol unilaterally.
The bill could be introduced shortly after the opening of the new session or be put on hold, and could come with or without the U.K. having triggered Article 16 of the protocol, a clause allowing either side to suspend it, the people cited above said.
In both cases, the bill will require further, secondary legislation in the U.K. fleshing out the government’s alternative.
Passage of the bill could coincide with a fresh period of uncertainty in Northern Ireland if Sinn Féin — whose position is that there’s no credible alternative to the protocol — emerges as the largest party.
Under the terms of Northern Ireland’s power-sharing agreement obliging nationalist and unionist rivals to work together, the party can’t claim the first minister’s job unless it finds a government partner. Neither the Democratic Unionist Party (DUP) nor the Ulster Unionist Party — staunch opponents of the protocol — have committed to nominating a deputy first minister alongside a Sinn Féin first minister.
If the bill is introduced this spring, it should be feasible for the government to conclude its passage within this year or by early 2023, even if scrutiny in the House of Lords, where the Conservatives do not have a majority, slows the process.
Jenny Chapman, Labour’s shadow Cabinet Office minister and a member of the Lords, said Labour peers will want to avoid giving the impression that they are trying to block the legislation, because ministers could exploit that to boost their own message. But she is deeply skeptical about the government’s approach.
“We think that picking a fight with the EU at this point when we have aggression from Russia and the cost-of-living crisis shouldn’t be necessary and that these issues ought to be resolvable through dialogue,” she said. “The government would love to drag the Labour Party into an argument about Brexit, but we will not do that … Because it is being done completely with a political motive in mind; I don’t think that the idea that we can get concessions or deals is really viable.”
In all of this, the U.K.’s goal appears to be to force Brussels to enter discussions over the parts of the protocol London is trying to amend.
Britain’s Europe Minister James Cleverly hinted as much last week when he told a parliamentary committee that the talks had reached a standstill, and that the U.K. is considering new ways of breaking it.
“We’re driven by a desire to resolve the issues which we can see building up in Northern Ireland, particularly these community tensions in Northern Ireland,” Cleverly said. “We are looking at the best and the most effective way of doing that. We have said that we are considering what options are available to us.”
Yet getting new powers is not the same as using them. Critics say the plan echoes 2020’s row over the incendiary U.K. Internal Market Bill, which ended with the government withdrawing its controversial proposals after finding common ground with the EU.
“If they pass legislation, they just give themselves powers but they don’t actually have to use them, which is what they were doing with the Internal Market Bill,” said Raoul Ruparel, previously a Brexit adviser to Theresa May as prime minister.
“There’s clearly a sense within this current government that a strategy of setting out a hard line — what some people have called ‘mad-man strategy’ — has worked before and would work again in forcing some kind of move from the EU side.”
‘Believing its own rhetoric’
Either way, the plan looks set to rock the EU-U.K. relationship all over again after weeks of constructive cooperation against Russia’s invasion of Ukraine.
EU leaders will feel inclined to leave their response to the European Commission — which last year came up with a menu of retaliatory options if Britain acts unilaterally — and avoid having a long discussion at any of the forthcoming European Council summits, a diplomat said.
And critics warned the U.K. government not to bank on a divided EU when deciding whether to move ahead with its plan.
“I worry London may yet again be misreading how the EU would react and would be obliged to react if the U.K. chose to override its treaty obligations,” said Ivan Rogers, former U.K. representative to the EU. “My concern remains that the U.K. is believing its own rhetoric, that the impact of the Russian-Ukraine war lessens the risk of Council unity and lessens the risk of a seriously adverse reaction to U.K. domestic legislation.”
The Commission declined to comment on the plan, but urged the U.K. to accept its October proposals for the protocol, which it claims would eliminate most of the customs paperwork for traders. “We only need to have a constructive approach from the U.K. side and we are working on it,” Commission Vice President Maroš Šefčovič told MEPs last week.
Britain regards the current EU proposals as worse than the standstill. “One of the challenges is that we are now regarding this more as how we protect the Good Friday Agreement rather than a kind of a technical trade problem,” Cleverly told lawmakers last week. “That’s where the gap is between our position and the EU’s position.”
Even if the protocol is not “dead and buried,” Ruparel, the former U.K. Brexit adviser, said, it’s hard to see a scenario in which it would be fully implemented in the way that the EU is looking for. “If you speak to businesses in Northern Ireland, most of them would say that the current situation is the ceiling in terms of what they want to apply in terms of checks and admin burdens — and they don’t want it to go any further,” he said.
In Dublin, Irish Prime Minister Micheál Martin is meanwhile keeping a cool head. Over the lifetime of Brexit, he told a parliamentary committee recently, “various things have been floated and some of them sink, some are re-floated. And so I don’t react immediately when I now begin to see certain articulations of certain ideas from time to time. I would say unilateralism doesn’t work in the context of the Good Friday Agreement.”
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