The EU is bracing itself for another tumultuous and bruising battle with the UK over Brexit, despite hopes and pleas for Liz Truss to be pragmatic and try to seal a deal on the protracted Northern Ireland issues.
“No one is optimistic. We are in for a very bumpy few months,” said one EU source.
The appointment of the firm Brexiters Chris Heaton-Harris to the role of Northern Ireland secretary and Steve Baker as Northern Ireland minister has filled some hardline unionists with hope that the protocol will be scrapped.
But some south of the border believe, even in the crossfire, a deal with the EU to alter, rather than scrap the protocol, can be done. And one Northern Ireland MP remarked that Heaton-Harris was “smart” and nobody’s fool.
What happens next?
Boris Johnson sent a message to Dublin when he took over from Theresa May in 2019, delaying his first call to the then Irish taoiseach, Leo Varadkar, in what some saw as a deliberate snub. When Johnson did call, he fell out with Varadkar by telling him May’s “backstop” solution to the Irish border question had to go.
Truss is unlikely to be so truculent. An early trip to Dublin is on the cards and the Northern Ireland minister has advised the new prime minister that talks should reopen.
But, like Johnson, Truss is likely to disappoint, telling Micheál Martin she would not be resiling from the Northern Ireland protocol bill.
The outgoing and short-lived Northern Ireland secretary, Shailesh Vara, told the British Irish Association on Friday it would be an “insurance policy”, to allow the UK do what it liked if the EU did not concede.
Truss may also warn that article 16 will be triggered in the coming days.
Does article 16 help?
Some say it will give Truss the political cover she needs to return to talks while keeping the gun loaded with the Northern Ireland protocol bill.
After all, article 16 is a dispute mechanism that results in talks. It requires the side invoking the mechanism to give a month’s notice and to outline the “safeguard” measures they plan to put in place to protect against the societal or economic damage allegedly caused by the protocol.
Talks must then begin to resolve the dispute, with a review after three months.
Could article 16 backfire?
Yes. It could lead to an increase in hostilities. The UK may use it to suspend the entire protocol as a “safeguard” measure, in which case the EU will retaliate. It may also leave the government open to a judicial review questioning its grounds for triggering the clause, Catherine Barnard, professor of EU law at Cambridge University, said.
Irish and EU leaders have already indicated they believe there is no legal ground for article 16, repeatedly rejecting the UK’s argument that unilateral action is necessary, and may take countermeasures.
The European Commission’s vice-president, Maroš Šefčovič, told the British Irish Association (BIA) on Friday that the UK had failed to engage with proposals the EU made in October, or the prospect of further compromises beyond those plans.
Truss has said the unilateral action is necessary as 18 months of talks have not produced a result. The EU has countered that talks were paused in February and that the UK had failed to engage before that point under Lord Frost.
Šefčovič said: “In short, they were dismissed without consideration. The UK has not even engaged in any meaningful discussions with us since February.” He said the EU was prepared to go further, but the UK was not prepared to listen. “They are not a ‘take it or leave it’ offer,” he added, saying the proposals had “never been seriously picked up by my counterparts”.
What about the Northern Ireland protocol bill?
The bill cannot go before the House of Lords before mid-October and is unlikely to become law before next year, leaving wriggle room for the UK.
But its existence has fostered distrust, not only among EU leaders. There are concerns in the UK that it is being pushed through without proper exposition and scrutiny as it is a “skeleton bill, short on detail, but long on potency”.
“There are huge Henry VIII powers in the bill that give the executive [government] vast discretion to do what it wants. At the moment, the bar is whether the secretary of state considers this appropriate,” rather than what is necessary, said Barnard. “This drives a coach and horses through the protocol.”
Can a deal happen if such hostilities break out?
Simon Coveney, the Irish foreign minister, told the British Irish Association conference in Oxford that the UK, which, he pointed out, came up with the protocol, would receive a generous response if it came back to the table for talks.
He indicated that Ireland would take its share of responsibility for patching things up. “Relations between the Irish and British government are probably weaker than at any other moment,” he added. “I’m very conscious that my government has to work to change that.”
