Tomorrow, MPs will vote for the first time on the legislation which would shred most of the Northern Ireland Protocol.
n the debate which precedes the vote, reference will be made to an incident last year which is passing into history in a way which is dangerously misleading.
On the evening of January 29, 2021, news began to emerge that the EU was triggering Article 16 of the protocol, to protect EU vaccine supplies.
The inflammatory move provoked immediate and loud fury from opponents of the EU, and dismay from many of its supporters.
Within hours, Brussels U-turned — but that decision has been used by both sides to misrepresent a deeper truth.
The claim is that 29 days into the protocol it was settling down and companies were getting using to the red tape — but all of this was blown apart by the EU’s tactless move. Unquestionably, the decision undermined the protocol, but it was not the critical moment now claimed.
The episode had been afforded seminal significance in the protocol narrative of Boris Johnson’s government.
In a major speech two months ago, David Frost — who until December was the UK’s key protocol negotiator — said that “during January 2021, it seemed that the protocol could be made to work”.
However, he said, “that came to an end on January 29 last year with the EU’s ham-fisted triggering of Article 16. The whole moral basis for the protocol was destroyed in unionism’s eyes, and the situation has never recovered. Unionist consent has been destroyed, unionist politics has gone haywire — and the protocol is never going to be operable as envisaged.”
EU figures make a similar point, albeit from an opposing perspective.
They say the protocol was coming to be accepted by the end of January — but then the British government saw the EU’s vaccines gaffe as a chance to wreck the deal, and have gleefully seized on it ever since.
However, just because two opposing sides can agree that something is true does not make it so.
While there is some accuracy in both those arguments, the true position is both simpler and more ominous for attempts to resolve this mess.
At the start of 2021, the DUP had accepted defeat on the protocol. Arlene Foster had made clear that she was no longer in the camp which would fight against the protocol, but had to implement it.
Months earlier, her agriculture minister Edwin Poots flirted with the idea of blocking his officials from building border inspection posts, but quickly backed down.
By early January, Foster was talking about what was happening as a “gateway of opportunity”. But her apparent enthusiasm for the new arrangements went beyond what any DUP leader could sell to voters.
By mid-January, she was actually welcoming some of the sea border’s implications for local firms, who were benefiting from British suppliers being shut out.
But this celebration of a reduction in consumer choice unsettled senior DUP members, who viewed it as evidence of her growing incoherence — something which just three months later would see her overthrown.
The truth is that the point at which the protocol became a crisis was on day one, when the public saw its unpopular consequences, and many unionists belatedly realised its constitutional implications.
People had been told that the protocol would offer people “the best of both worlds”, without much honesty about the bad bits.
For most people, access to the single market is nice — but not directly relevant to their lives. However empty supermarket shelves, or not being able to buy a favourite product from Britain is inescapably relevant.
Prior to the EU’s vaccines move, Nisa’s corner shops were told they were losing more than 400 items because of the protocol. Farmers were told of four new processes involved in bringing a bale of hay across from Britain.
One dismayed haulier lamented: “It is currently easier to ship a container to China than a trailer from Cairnryan to Larne.”
Major British seed companies stopped selling to Northern Ireland, with one describing such sales as “international orders”.
Robin Mercer, the owner of Hillmount Nursery — one of Northern Ireland’s largest garden centres — said it was “on the brink of collapse”, in large part because of the new border rules.
There was a pettifogging absurdity to some of the rules. British soil was banned, meaning bare-root apple trees from Yorkshire were suddenly illegal — but they were perfectly legal if potted in environmentally-damaging peat.
The UK government did what it could to deny reality — “dedramatising” the issue in EU-speak. NI Secretary Brandon Lewis even denied there was an sea border. It didn’t work.
For unionists, none of the problems were merely practical.
The protocol’s central weakness was a failure to recognise that a hard Irish Sea border was as unacceptable to unionists as a hard Irish land border was to nationalists.
That would have been true regardless of the EU’s vaccines gaffe.
Paradoxically, the EU’s flirtation with triggering Article 16 arguably helped keep the protocol in place.
The UK government cited that step by the EU as a reason for its unilateral extension of grace periods last March.
Those unilateral moves are so popular that even many supporters of the protocol want to see them remain.
Without them, this issue would likely have become a crisis impossible to manage by mid-2021 — at the most volatile point in the marching season.
And what would have emerged from that, no one can tell.
