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Johnson aggravates tension with the EU with an illegal project

British Prime Minister Boris Johnson. / afp

London’s attempt to amend its ‘Brexit’ in Northern Ireland leads to an incomprehensible policy

The British Prime Minister, Boris Johnson, has built an apparent dead end in his relations with the European Union and the restoration of the autonomy of Northern Ireland, after publishing this week a bill that repeals a good part of the Withdrawal Agreement of the European Union. British lawyers specializing in international law and the European Commission say it is illegal.

European Commission Vice President Maroš Šefčovič said Thursday in an interview with British television Sky that he cannot “resist the temptation to think that (the introduction of the bill) is politically motivated, but our role is not to comment on the internal politics of the United Kingdom, and therefore our doors for negotiation will always be open’.

It is a sentiment shared in Parliament and in the British media. The interpretation that London is challenging the EU to a trade war is exaggerated. It may be the outcome but, in the context of the war in Ukraine and a troubled economy, London is not pursuing the total bankruptcy of ‘Brexit’. Johnson this week asked his ministers to soften their tone towards the EU.

In an interview with the Belfast Telegraph newspaper, Šefčovič pointed out on Friday that if the bill becomes law, “no option is ruled out.” He warned that Northern Irish companies would lose access to the common market. Anonymous sources in the Commission have suggested to British media that Brussels could impose tariffs on specific products that British companies export to the EU.

The first step of the Commission has been to reactivate a legal procedure against the unilateral establishment by London, in 2021, of grace periods for the application of some border controls between Great Britain and Northern Ireland. The region is part of the common market and the British market, thanks to the rules of a Protocol annexed to the Withdrawal Agreement.

The bill’s illegality has been argued this week by prominent British lawyers. They allege that the invocation by the Johnson Government of the “doctrine of necessity”, which in international law allows a State to postpone or abrogate the application of an international treaty, is not possible when the Protocol allows, in its article 16, to respond to critical situations.

International courts have established that states cannot invoke this doctrine if they have contributed to the alleged need. London would have fomented the crisis by pursuing a hard ‘Brexit’. She negotiated and signed the Protocol. And the lawyers find no justification for the Government to include the annulment of the role of the Court of Justice of the European Union as regulator of its common market.

The interpretation of Johnson’s political motivation has produced varied speculation. Some believe that, after suffering the rebellion of 148 deputies from his parliamentary group in a vote of confidence, the conservative leader wants to ensure the support of the most eurosceptic deputies. A fight with the EU would strengthen the ‘Brexiter’ vote, if he plans early elections.

Ulster says yes and no

Senior officials of Sinn Féin, the Republican party historically associated with the IRA, believe that Johnson is challenging the EU to achieve benefits in his negotiations with Brussels; on access to the common market of financial services of the City or the British participation in the Horizon program, which coordinates and finances scientific research.

It would be a possible interpretation if EU countries were pressuring the Commission to ease frictions with the United Kingdom, the fifth largest economy in the world. Without that pressure, the existence of which the community chancelleries deny, adding an illegal derogation from the Protocol seems like an absurd negotiating strategy: threatening Brussels with shooting himself if they don’t give him what he wants.

Politics and legality become even more complicated in London’s management of the situation in Northern Ireland. The May elections gave the largest number of seats to Sinn Féin, but the DUP’s boycott of the election of the president of the Autonomous Assembly has prevented the restoration of the institutions. April 2023 will mark the 25th anniversary of the Belfast Agreement that created them.

The DUP is a peculiar party. The Rev. William McCrae read the opening prayer for his lecture in November 2018. Johnson, a Conservative leadership hopeful, was a guest star. A gospel singer, McCrae proposed in 1986 the aerial bombardment of IRA enclaves. He was followed by the moderator of a debate on education. Three hundred delegates responded to his greeting with the choral sweetness of primary school students: ‘Good morning’.

Its members can be puritanical, fanatical and also pragmatic, like its founder, Ian Paisley. They are now demanding that Northern Ireland remain in the common market while Johnson promises a “bonfire” of rules inherited from the EU, but no border controls between Britain and the region. The alternative is a border between the two Irelands or between Ireland and the rest of the EU.

People familiar with Northern Ireland politics and Johnson are pessimistic. They say there is no plan and Downing Street is in chaos. There is, in the short term, nothing. The implementation of the EU sanctions will take months. Passage of the bill, maybe a year. But Johnson demands that the DUP already form the shared Executive with Sinn Féin, or he will freeze the processing of the bill.

DUP leader Sir Jeffrey Donaldson said in a meeting with members of his party on Friday that the bill can “remove the long shadow of the Protocol on Northern Ireland and restore our place in the Union”. He added that they will not be part of the autonomous Executive until the law is approved and the ministers announce the repeals of the Protocol that authorizes this illegal norm.

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