Sunak is preparing to sell off our sovereignty

Who rules? That is the real question at stake in the row brewing over Rishi Sunak’s new deal on the Northern Ireland Protocol. Although the text of the new deal remains secret, and we are still waiting for the white smoke to emerge from the negotiating room, all the noises suggest that the answer to this fundamental question is likely to remain the same: Brussels.

The protocol has long been a major post-Brexit sore point. It was agreed by Boris Johnson in 2020, with the aim of avoiding a hard customs border between Northern Ireland and the Republic of Ireland. It does this by keeping Northern Ireland in the EU’s Single Market for goods, and it places a customs border in the Irish Sea. Ever since it came into force in 2021, it has wrought havoc, creating barriers for GB-NI trade, while riling up the Unionist community. Johnson and his successors have all tried to unpick it.

Sunak’s new Northern Ireland deal with the EU has essentially been ready, give or take some final textual wrangling, since last weekend, or perhaps even a fortnight ago, depending on which source you believe. It is designed to fix some of the practical problems of the protocol – especially, the deliberately excessive amount of EU checks on goods crossing the Irish Sea. According to reports, Sunak has also managed to claw back some legal powers from the EU. But the operative word here is ‘some’.

Many of the concessions Sunak is believed to have secured are welcome on the surface. The EU will reportedly allow goods travelling from GB to NI to be split into ‘green lanes’ and ‘red lanes’. Green-lane goods, destined to remain in NI, will no longer be subjected to customs checks. Red-lane goods, destined for the Republic of Ireland (and therefore the EU Single Market), will face EU checks.

This should reduce the near-intolerable levels of trade friction that had built up on the Irish Sea border. In January and February 2022, 13,629 documentary checks were completed for goods travelling between GB and NI. This amounted to roughly 20 per cent of all the checks undertaken across the entire EU. Worse still, this was happening under a so-called grace period, when the protocol’s rules were relaxed and not implemented in full. At first, the EU insisted that the rules were the rules and nothing could be done about this. But in recent months, even champions of the protocol, like Irish Taoiseach Leo Varadkar, have had to acknowledge that these arrangements were ‘too strict’.

Then, there is the question of EU law. Because Northern Ireland remains partly in the Single Market, thousands of EU laws have been imposed there since the UK left the EU, without any democratic input whatsoever. Sunak’s deal aims to partly remedy this by giving Northern Ireland some of the rights enjoyed by Norway, which is also in the Single Market, but out of the EU proper. Under the deal, the UK government or the Northern Ireland Assembly could raise objections to new EU rules, which the EU may then decide to disapply to Northern Ireland voluntarily. New laws could also be stalled in the Northern Irish courts, but neither the UK nor NI’s devolved bodies will get to veto any EU laws. Ultimately, it still leaves a part of the UK subject to rules made abroad.

According to reports, Sunak has also extracted a surprise concession. Control over Northern Ireland’s policies on VAT rates, taxation and state aid will be returned from Brussels to Westminster. Sky News’ Sam Coates suggests that this could be Sunak’s ‘trump card’ – the concession that will do most to win over the anti-protocol DUP in Northern Ireland and the Brexiteers in his own party, many of whom are preparing to rebel.

But, however unexpected or large these concessions may be, they are still just that – concessions. They are and were in the gift of Brussels to grant or not grant. They are a sign that despite 17.4million people voting for Brexit, the UK is still not a fully sovereign nation. We still have to ask permission to send sausages from Barrow to Belfast without EU customs checks, and to set our own policies on tax and state spending in a part of our own territory.

The fact that we have not yet made a clean break with the EU is made painfully clear by the continued role of the European Court of Justice (ECJ). As things stand, the ECJ is empowered to enforce and uphold EU law in Northern Ireland. It is the ultimate authority on EU law and on the governance of the protocol. It can even force the UK government to appear before it to answer for any perceived breaches. By all accounts, the ECJ will continue to play this role under Sunak’s deal.

It would be bad enough to have any foreign court interfering in UK public life, but the ECJ is no normal court. It is a political court that enforces EU dogma. And unlike most national supreme courts, its rulings are final. They cannot be repealed or altered by an elected legislature. As Perry Anderson notes in Ever Closer Union?, his history of the EU, there is no political institution in the West as free of any trace of democratic accountability as the ECJ.

In other words, in its imperial and anti-democratic design, the ECJ is the archetypal EU institution. It is precisely what millions of Leavers voted to get away from. And yet here it remains, lording it over part of the UK.

Ultimately, the problem with the Northern Ireland Protocol is the protocol itself. Sunak’s new deal might well offer some technical fixes to practical problems. It may allow the UK and NI to claw back some limited additional powers. But it will do nothing to fulfil the Brexit promise of restoring the UK’s sovereignty. The best way to do that would be to tear up the protocol entirely – Sunak’s technocratic tinkering will not cut it.

Fraser Myers is deputy editor at spiked and host of the spiked podcast. Follow him on Twitter: @FraserMyers