As the timelines extend, so do the possibilities for solving the Protocol riddle…

Two things worth noting this week. One is the legal challenge to the protocol failed in the Supreme Court. In an excellent OpEd in the News Letter Lord Paul Bew lays out (without hyperbole) the reasons why…

…let us be clear — the protocol does not constitute a change to the constitutional status of Northern Ireland. Why? Because the constitutional status of Northern Ireland depends historically on the Government of Ireland Act 1920 which opened the way to two Parliaments in Ireland and the consent clause of the Belfast Agreement of 1998, as placed in UK legislation.

He also adds some much needed historical context to what in recent times has become an hysterical debate:

The Act of Union of 1800 is of great importance because it sets the context of the Government of Ireland Act of 1920. It explains why the Northern Ireland readers of the News Letter are reading it in constituencies that have been represented in the UK Parliament for over 200 years. The Union is above all a political conception — to create one Parliament for both islands — though it does contain important economic elements, notably article VI.

The political conception is ambitious: Edmund Burke, the brilliant intuitive political thinker, had argued in the troubled and violent 1790s that it was necessary to create a context in which a good Englishman and a good Irishman would speak and think in the same way.

There would be one united emotional imagined community. In 1800, Prime Minister William Pitt and the great Ulsterman Lord Castlereagh fully agreed and put this idea at the heart of their advocacy of the Union. The idea was to create one effective political nation across two islands.

Bluntly, this idea failed in the nineteenth century. Delay in implementing Catholic emancipation and, above all, the Famine, played their part. In 1921, 26 Irish counties left the Union — which obviously constitutes a very substantial dilution of the original act.

A new guiding concept replaced it and essentially still prevails. By 1920, as the then Prime Minister Lloyd George explicitly said, there were in effect two nations on the one island of Ireland: hence the need for two Parliaments. And indeed, new language on trade, reserving that matter to the UK Parliament.

He concludes optimistically however…

In its current negotiation with the EU, the UK government could do worse than draw on the principles of fairness and concern for the economic progress in this place which so motivated William Pitt and Lord Castlereagh in 1800. It has made a good start in insisting that the functioning of the protocol must be compatible with the Belfast Agreement in all its aspects.

The other fascinating detail is the fact that the Secretary of State (who started off his term in office by trying to put pressure on to the DUP) has now given himself the wriggle room to conclude a deal with the EU (and the DUP) for another year.

I’d read two possibilities into this. One, it’s a wise lessening of pressure on all concerned (and it sort of removes any urgent speculation/expectation that anything is going to be ready for the 25th anniversary of the Belfast Agreement in April).

Two, given the lack of robust consensus on Brexit within the Conservative party, by resetting the deadline so close to a likely date of the next UK general election, rather than fail the protocol may just slip quietly into the ‘somebody else’s problem field’?

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