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Since Marquis de Ximenès coined “la perfide Albion” in 1793, the phrase is regularly recalled to puncture English pomposity – rarely in scarce supply among Conservatives.
The Vienna Convention on the Law of Treaties requires states to perform their obligations except after a fundamental change of circumstances. When the EU-UK withdrawal agreement (2020), including the Ireland-Northern Ireland protocol, and the Trade and Co-operation Agreement (2021), were signed and ratified, the difficulties of which Her Majesty’s Government subsequently complained were fully known. Philip Rycroft, the former permanent secretary at the department for exiting the EU, told the BBC: “The government knew absolutely what it was signing up to when it signed up to the protocol.” So, no fundamental change of circumstances may be invoked by those tempted to be perfidious.
Since the summer of 2019, the EU and Ireland have been negotiating and renegotiating with a rogues’ gallery of liars, one of whom – with feral blond hair – is under investigation by the London Metropolitan Police.
Christopher McCrudden, a distinguished professor of law at Queen’s University Belfast and the University of Michigan, has edited 25 succinct essays on the law and practice of the just-named protocol. A great deal of both the law and unfolding practice are carefully detailed, and their respective complexities and possible trajectories are usually admirably explained. When they are not, that’s rarely the fault of one of the authors. The treaty drafters are responsible – especially London’s lawyers, disguising concessions made by the weaker party.
This collection is available online. Open access is among its many virtues. Word-searching is possible. None of McCrudden’s contributors use the noun “liar” or the verb “to lie”– meaning to tell known falsehoods. Even “lie ahead” is used in conjunction with “challenging” times. What the authors offer, individually and jointly, are calm guidance notes to future judges, lawyers, journalists, interested commentators and citizens, all void of rancour.
Barrister George Peretz talks of what a “diligent reader” might find following up annexes to a feature of the protocol, letting us know there’s an opposite type, “a lazy reader”: with feral blond hair. Yet, if Dominic Cummings is believed, Johnson “never understood WTF was going on at any stage”, even had he been a diligent reader, a crime of which none suspect him.
Expertise provided
To be fair, any party animal with a classics degree, who wants to understand the protocol adequately, requires some education in public and private international law, EU law, UK constitutional law, customs and regulatory law and practices, human rights and citizenship provisions, and, not least, the 1998 Agreement (prefaced by “Belfast” or “Good Friday” depending on whether the emphasis is on where it was finalised or on the day that it was first approved). This book provides some of that education, digestibly.
Cummings has said Johnson was not lying during the UK general election of 2019: He “never understood what leaving [the] Customs Union meant until 11/20. In 1/20 he was babbling ‘I’d never have signed it if I’d understood it’ (but that WAS a lie).” This “defence” is that Johnson would have lied had he understood. We are amid the Cretan liar paradox: is the statement, “the liar from Crete said that all Cretans are liars”, true or false?
The discourse of the Democratic Unionist Party abounds with demonstrable untruths over the Protocol. The truth that should be spoken is that their Westminster team wanted to restore a harder land border to render reunification more difficult: no other explanation makes sense of their conduct. They switched from supporting Theresa May only to find Johnson agreeing the protocol to accomplish his allegedly “oven-ready” Brexit.
The DUP’s biggest falsehood is that the protocol violates the principle of consent embedded in the agreement of 1998, as if the EU’s negotiators, with the Government of Ireland, deliberately broke the 1998 agreement to save it. Hansard records Nigel Dodds complaining that the protocol “drives a coach and horses through the Belfast Agreement by altering the cross-community consent mechanism”.
David Trimble, the unionist leader who signed the 1998 agreement, stated in The Irish Times that the protocol “ignores the fundamental principle of consent. Northern Ireland is no longer fully part of the UK – it has been annexed by the EU and is subject to EU laws and an EU court without any right of dissent”.
Dodds and Trimble are here inventing unionist veto rights.
The consent principle included in the 1998 agreement applies solely to the transfer of sovereignty over Northern Ireland. Whether Northern Ireland reunifies with Ireland, or remains in the UK, is to be decided by a majority in a referendum: a simple majority, as stated four times in the 1998 agreement. That is the consent-to-sovereignty principle.
Special arrangements
Special trading arrangements have been made in the protocol, a work-in-progress, but these do not modify Northern Ireland’s status as part of the UK. Its trading relations were legislated by Westminster, incorporating a treaty ratified by Westminster.
Should the “cross-community consent” procedures set out in the 1998 agreement apply to the special arrangements in the protocol, as Dodds claims? No, and to suggest otherwise is to misunderstand or misrepresent the 1998 agreement.
The functions addressed in the protocol – mostly customs, EU single market regulation and VAT – are not Northern Ireland Assembly or Executive functions. They are Westminster functions. The rights protected by the protocol – which pledges no diminution in existing rights – flow from Westminster legislation or treaty-incorporations. As Julian Smith, a law-abiding secretary of state, told the DUP: the “protocol is for a reserved matter; it is not for the Assembly. The Belfast Agreement is extremely clear that there will be matters that are not subject to the consent mechanisms in the Assembly.”
The way the untruth about consent works rhetorically is simple. Unionists assert that the 1998 arrangements give them a veto on any change in Northern Ireland’s political arrangements.
Unionist leaders have pleaded their case before the High Court in Belfast. Mr Justice Colton rejected all the arguments brought by the litigants – including their claims regarding the violation of the consent provisions in the 1998 agreement. Last week the Northern Ireland Court of Appeal upheld Colton’s opinion, quoting the book under review in its full judgment.
The protocol was negotiated for democratic reasons: Northern Ireland did not vote to leave the EU. It was negotiated for security reasons: a hard border would have undermined a foreseen consequence of the 1998 agreement – a borderless Ireland. For legal reasons: the UK was bound by treaty to the 1998 agreement, including its rights provisions. For geographic reasons: Northern Ireland is the sole place in the UK to have a land border with the EU after the UK’s secession, and existing administrative capacities may be repurposed to protect the single market more easily than would be possible across the porous partition line. Lastly, it was negotiated for reasons of power: Ireland’s soft power within the EU, with Irish America in the background, affected the outcome. The question is whether this complex bargain is sustainable.
Trade war
Jeffrey Donaldson has claimed that the protocol damages “the very delicate constitutional balance that is at the heart of the agreements that formed the basis of the peace process here’’. It’s not true. The balance would be more endangered by scrapping the protocol, which would also precipitate a trade war between the UK and the EU.
The UK and the EU decided to allow the Northern Assembly the possibility to opt out of some of the protocol’s provisions four years after its entry into force, albeit with a delayed effect of a further two years until they can be replaced, by a majority resolution.
This new “consent to the protocol” provision was not required by the 1998 agreement, but it is balanced. It gives no veto to unionists or to nationalists, because for now, both are minorities in the Assembly (if it sits). The “others”, who do not register as unionists or nationalists, will have a pivotal role in the fate of the protocol, which has an opportunity to breathe before being judged by the Assembly.
Loyalists and unionists currently compete to strangle the protocol shortly after its birth – through street demonstrations, feeble by historical standards; through threats to those administering “the sea border”; and by collapsing the northern institutions. This pressure may not work and may backfire. There are fresh Assembly elections in May.
The bargaining over the renegotiation/implementation of the protocol in 2021 has led the EU to make generous but conditional modifications over how it may work.
We shall see what the embattled Johnson administration will do in due course – after Putin’s brutal invasion of Ukraine seems decided. Will it risk a trade war with the EU, or a breach with the Biden administration, either through the suspension or repudiation of the protocol? Or will it declare victory and perform its treaty obligations?
The DUP’s cadres are praying that an embattled Johnson will invoke suspensory powers in article 16, which this book explains will do less than it seems, or scrap the protocol, as “red meat” for his wavering backbenchers while the Metropolitan Police deliberate. The rest of us will benefit from reading this book while the DUP’s leaders pray. Brendan O’Leary is Lauder professor of political science at the University of Pennsylvania, and the author of A Treatise on Northern Ireland. He currently holds a Fulbright fellowship at NUI Galway