Not known for his forensic attention to detail, Boris Johnson is unlikely to have been closely following events in the Queen’s Bench Division of the High Court at Belfast’s Royal Courts of Justice. But what is transpiring there before Mr Justice Colton could be a key moment in the British prime minister’s downfall because it threatens to unravel his lies around the Irish Sea border.
Two weeks ago, the judge heard a judicial review case taken against DUP minister Edwin Poots who in February ordered his officials to stop Northern Ireland Protocol checks on goods. The court case was complicated from the outset, but complexity was heaped on complexity when a new argument was introduced by Northern Ireland’s former attorney general, John Larkin.
Poots’ officials had refused his order, believing it to be unlawful — while Poots argued that the checks themselves were unlawful because he had not received the required approval from the Stormont Executive, something other ministers disputed. When challenged in court, Mr Justice Colton ruled that checks should continue until he came to a final decision.
So far, so very complicated — and steeped in political manoeuvrings as the DUP desperately attempted to distance itself from the checks which Poots had allowed to commence but against which unionism was decisively turning.
However, two weeks ago Mr Larkin, acting for the DUP minister, suggested that everyone has been misinterpreting the law. Rather that the situation being as Poots had argued in February — that there was a clash of obligations whereby his department was both obliged to do the checks and obliged to get executive approval for those checks — Larkin suggested there may be no obligation at all.
He argued that the relevant EU regulation referenced in the protocol refers to checks “at the border control post of first arrival in the [European] Union”. While Northern Ireland de facto remains in much of the EU under the protocol, it is not an EU member and Mr Larkin argued that nowhere in law was the UK redefined to exclude Northern Ireland for these purposes, as had been done in other sections of the protocol. If that is so, he argued, then there is no lawful basis for the sanitary and phytosanitary checks on products containing animal or plant material (this doesn’t affect customs or other aspects of the protocol).
If Larkin is right, it would be a loophole; no one can doubt that the protocol intended there to be an Irish Sea border; even Poots implicitly accepted this by allowing his officials to build and man the border control posts. Ultimately, Larkin’s argument may be rejected by the courts. But regardless of that, this situation has immediate political implications. The judge invited the UK Government to join the case to address Larkin’s point and adjourned the hearing.
The case then returned to court where the government’s lawyer said Larkin’s argument had generated “significant interest in Whitehall”. A full hearing is likely within weeks.
This case was always as much about politics as law, and what has happened gives Johnson an opportunity to remove a huge chunk of the protocol — if indeed that is what he truly wants. Johnson could instruct his government’s lawyers to support Larkin’s view that the protocol does not require these checks.
Indeed, how could Johnson not support that argument when he has all along claimed — in a demonstrably dishonest fashion — that the protocol never required any checks? However, many people — on both sides of this debate — believe that the British prime minister is merely using the issue to deflect attention from his own scandals. If so, his decision here will be revealing.
Johnson has promised legislation to disapply sections of the protocol, and the text of that bill is due to be published tomorrow. While it generally suits the Tory leader to lock horns with the EU, he has sounded notably more moderate than his foreign secretary, Liz Truss, on the matter. Truss is positioning herself as the uber-Brexiter (despite supporting Remain in the referendum) and pushing for the protocol to be gutted; Johnson is in the awkward position of trying to keep more of the protocol in place — despite claiming to want to ditch the Irish Sea border entirely.
While Johnson is aware of international pressure from Washington and elsewhere which disapproves of ditching the protocol, that is unlikely to be the key element of his thinking.
Far more pressing is soaring inflation and the possibility of a trade war with the EU which would push inflation even higher. Few of the voters who put Johnson into Downing Street care more about Northern Ireland than about the diminishing spending power of the pound in their pocket.
And, yet, Johnson is now so vulnerable he cannot afford to think even a few months in advance. On paper, he has a working majority of 75 — a position many prime ministers could only have dreamt of. But that is not the true picture; last week, 148 of Johnson’s MPs voted against him in a confidence motion.
He now is at the mercy of a party still riven by its handling of Brexit, but where sentiment is far more anti-EU than in the crop of MPs led by Theresa May. The legislation to be introduced tomorrow will be ultra-controversial and is likely to take a year to get through parliament. Johnson probably thought that gave him plenty of time before the real decision on the protocol had to be taken. The Belfast case suddenly gives him far less scope for delay.
In a time of strength, Johnson told his party what it wanted to hear. Even then, his fig leaf of lies failed to fully hide the truth. Now in a time of weakness that fig leaf may be torn away, leaving him unpleasantly naked.