The Northern Ireland Protocol: how we got here, and what should happen now? Keynote speech by Rt Hon Lord Frost of Allenton CMG

  • Wednesday, 27 April, 2022
    12:30 - 13:30

The Northern Ireland Protocol: how we got here, and what should happen now?

by

Rt Hon Lord Frost of Allenton CMG
Senior Fellow, Policy Exchange
Former Chief Negotiator for Exiting the European Union

Vote of Thanks by

Rt Hon Arlene Foster
Former First Minister of Northern Ireland

Chaired by

Lord Godson
Director, Policy Exchange

For the first time Lord Frost will give a personal account of the politics and pressures of the negotiations in 2019 that led to the agreement of the current Northern Ireland Protocol and the UK’s withdrawal from the EU.  He will reflect on the reasons why the Protocol has come under such pressure since then and what this means for its future.


 

Transcript of Rt Hon Lord Frost of Allenton CMG’s Speech

Thank you Dean.  It is a huge pleasure to be here and to be making my first speech as a new Senior Fellow at Policy Exchange. I am very much looking forward to working more closely with you and colleagues.  Thank you too to Arlene Foster, former First Minister of Northern Ireland.  I am very honoured that she has taken time out to be here today and I look forward to hearing her thoughts too on events in which she, like me, was closely involved.

Ladies and Gentlemen, the Northern Ireland Protocol is back.  It was already an unavoidable part of the context for next week’s Stormont elections in Northern Ireland.  On top of that came last week’s seeming leak of what may, or may not be, the Government’s plans to bring forward legislation covering the Protocol in the new Parliamentary session.  Of course the dramatic events in Ukraine, and the PM’s own tribulations, mean, as so often, that Northern Irish issues come well down the news agenda.  That may change after 5 May.  But in any case the issue will not go away.

I was the Government’s Brexit negotiator in 2019 when the current Protocol was agreed, again in 2020 when it, and the UK Internal Market Bill, were part of the backdrop to our trade negotiations; and in 2021 I was the responsible Minister as the Protocol settlement – much earlier than expected, and in ways we did not predict – started to come apart.

With that experience behind me, as I look at the current debates, I see two things.

First, I note that much recent debate about Brexit is really about the pros and cons of the Protocol.  In a way that is a good thing – it reflects the relative lack of other things to talk about.  Occasionally another issue like fishing or touring performers gets a look-in, but generally it is remarkable how smoothly the total reordering of this country’s external economic relations has gone.  Unfortunately the resulting attention on the Protocol is often rather simplistic and pays little regard to the very unusual circumstances of its creation.

Second, and with that in mind, it seems to me that the Protocol has become a symbol – of different things to different people.  For some in unionism it is a symbol of betrayal – by HMG – again.  Many nationalists see it, whether they admit it or not, as a step on the path to a border poll and a united Ireland.  For Remainers and many in the EU it is a symbol of the UK’s supposed failure to understand what was possible and what it had signed up for.  Equally, for some Brexiteers it symbolises the EU’s own carelessness in insisting on arrangements that prioritised their single market over sustaining the very fragile politics in Northern Ireland.  For other Brexiteers, there is a frustration that we pushed through Parliament a deal which was less than perfect as regards sovereignty and did not deliver absolutely everything that was wanted.

There is some truth in all these judgements, but more in some than others.  Certainly none is a complete picture.  Yet it seems impossible for the representatives of the different perspectives to engage with each other.  As a result discourse about the Protocol has become disconnected from reality.

That’s why I think that now is the right time to speak on the way forward.  I want to do three things.  First, recall what actually happened in 2019 and how we got the current Protocol.  Second, explain how it started to go wrong.  Third, and finally, comment on what needs to happen now.

How the Protocol was created

First, then, how did we get this Protocol?

The negotiations we conducted in autumn 2019 have already disappeared from political memory – possibly because the whole period was so traumatic to the British body politic that many people have just blanked it.  Perhaps that’s why so many people are accusing us, and me personally, of either not understanding the implications of the Protocol or of signing it without intending to observe it.  Obviously neither is true and let me explain why.

Step back to the moment the Boris Johnson government entered office in July 2019.

We were faced with a Withdrawal Agreement that had been agreed but could not get through Parliament.  There was lots wrong with it, notably the continued role for the EU’s Court of Justice, but the worst aspect was that first version of the Northern Ireland Protocol.  Via the so-called “backstop”,  its effect was to keep all of the UK in the EU’s customs union until a different way of managing the Northern Ireland border had been found – even though the EU had said there was no other way.  There would be alignment of the whole of the UK to the single market for goods and much else besides.  And yet, despite all this, the concept of an Irish Sea border remained in the Agreement: Northern Ireland was removed from the UK customs territory for WTO purposes, and Great Britain and the EU plus Northern Ireland were then put back together into a customs union.  It was the worst of all worlds.

Beyond that, we faced an agreed Political Declaration which committed the country to a high-alignment soft Brexit in the future relationship negotiations that would follow.

In considering how to proceed we faced serious dilemmas and many factors that needed to be balanced.  They explain why the final deal was imperfect.

First, we had to deal with the growing belief among the political class and the public that the referendum result simply couldn’t be delivered.
Second, we faced the shredding of our constitutional norms, with Parliament effectively taking on the role of the executive for Brexit purposes, and hamstringing the government’s ability to negotiate.

Third, it was clear that a substantial proportion of the political class, in all parties, wanted to find a way of reversing the referendum result – which would have had, in our view, a devastating impact on faith in democracy itself.

Few British governments entering into office had faced quite such a daunting prospect.

We had to cut through this somehow and get an agreement that could get through Parliament.  It is worth remembering that many, perhaps most, observers, thought that the task was simply impossible.

So we had to set priorities for the three months we had and we had to be ruthless in doing so.

We decided we had to prioritise:
– first, delivering the referendum result and leaving the EU  by any means necessary on the set date, which at the time was 31 October 2019.
– second, leaving in a way which imposed minimal constraints on the future – a way which did not leave us irrevocably subject to EU laws and which did not pre-commit us to a particular form of Brexit.  In other words we wanted to give the country as much free choice as possible in the FTA negotiations that would follow and make that negotiation as far as possible one between equals.

That meant – for political and legal reasons – our priority had to be renegotiating the “backstop”, taking the whole country out of the EU customs union, and redoing the Political Declaration.  Given more time we would certainly have tried to do more, notably limiting the role of the CJEU and removing the requirement to have an “Independent Monitoring Body” to mark our own homework on citizens’ rights, but it wasn’t possible in the time available.  As Martin Howe QC correctly pointed out in his October 2019 article summarising the pros and cons of our deal, “it is much more difficult to try to renegotiate an existing text than it would have been to get the right result at the more fluid stages of original negotiation”.

In doing this we had to ensure that the new arrangements for Northern Ireland reflected the balance of interests and concerns embodied in the Belfast Good Friday Agreement, in all three strands.  This was our overriding goal in this area.  We always knew that this would require some special arrangements covering Northern Ireland.  We never contemplated any sort of checks or processes taking place at the land border.  But we also knew unionist concerns had to be recognised and the fundamental unity of the UK’s single market and customs territory had to be respected.

The situation deteriorated further as the summer progressed and the Parliamentary background limited our options.  By early September the Benn-Burt “Surrender Act” was in place, the practical effect of which was to make it impossible to leave the EU without a deal of some kind.  By removing the “walk away” option, this massively weakened our negotiating hand – and we could see from the EU’s behaviour that they knew it.

So trade-offs were inevitable.  It was simply not possible to get everything we wanted.

That’s why, after much back and forth, including with the DUP, we put forward the proposal we did in early October.  That proposal was that, to minimise friction at the land border, and given pre-existing arrangements, we were ready to agree Northern Ireland would have to align with EU SPS rules and EU manufactured goods rules.   We recognised these arrangements would entail some processes in the Irish Sea but we believed that most could be done behind the border.  We were not however prepared to put Northern Ireland into a different customs zone to that of the rest of the UK, and here different arrangements involving electronic processes, behind the border, would have to be found.

The crucial new element was consent.  We believed the only way it could be acceptable for any part of the UK to be subject to EU legislation and institutions without a say was if there was periodic consent by the Northern Ireland people through their democratic institutions.  Crucially, in our view, this had to involve a vote to go in to the arrangements in the first place.

This offer was supported by virtually all Conservatives.  The DUP described it as “a serious and sensible way forward”.

In the 15 days that followed it became clear that the EU would look to Ireland to judge whether the consent arrangements were acceptable; and Ireland would look to the EU to judge the rest.

We unlocked the consent arrangements at the Wirral meeting with Varadkar on 10 October.  It was clear Ireland wanted to see a deal.  Unfortunately, I think ceding to EU pressure, Ireland would not agree to a consent vote in Northern Ireland to go into the proposed arrangements.  If it had, I believe that the EU would have had to accept it; and we would not have the same difficulties we have now because consent by Northern Ireland would be much more soundly based.

The problems came in Brussels.  It was clear that the Commission doubted that we had the political backing to get a deal through.  They could see we could not walk away following the Surrender Act.  They could see we had a deadline by which we had to reach a deal – 17 October, the last day which allowed time to complete Parliamentary processes. In my opinion they were hoping that political developments would see Brexit reversed, particularly after the Supreme Court’s prorogation ruling.

As a result, they turned the screws.  Talks happened when and in the configuration the EU wanted.  My negotiating team was treated brutally as the supplicant representatives of a renegade province, culminating in us being shut in the meeting room in the Berlaymont until 2am on the final night of talks while the Commission debated whether they wanted to sign off on the deal.  We put up with it because we wanted to get this done.

Substantively, the EU nsisted on application of the EU’s customs rules, with the only redeeming feature the provisions that there should be no tariffs on goods not “at risk” of going into the Republic of Ireland, the details of which were to be worked out later.  Although we were able to agree some important language, notably to guarantee Northern Ireland’s status in the UK customs territory, a crucial difference from the backstop, we could do nothing in these circumstances about the insistence that EU customs rules should nevertheless apply.

This was the straw that broke the DUP’s back.  They withdrew their support and we faced a very difficult decision – not least because we, as it turned out correctly, also had huge doubts about the workability and the political implications of the customs arrangements.

We faced a choice – take this deal and try to get it through Parliament, and sort out the detail in 2020 while we were negotiating the trade agreement (and it bears repeating that no-one knew whether we would get a trade agreement); or walk away, fail to deliver Brexit on 31 October, and almost certainly see the Government collapse.  At that point we would have seen, at best, a second referendum, quite possibly Brexit taken off the agenda for good, and who knows what consequences in our domestic politics.

We decided the lesser risk was to push the deal through and trust that we could sort out the detail with the EU later.  As it turned out, we had to go through an election to deliver it – but deliver it we did, and Brexit happened.

My conclusion is that this Protocol was the only realistic deal available given our unsatisfactory starting point in July 2019.  I do not believe Brexit would have happened if we had not taken it and therefore it is overwhelmingly likely that we would still be in the EU now.  The consequences of that, both for our political system and for any influence we had in the EU afterwards, would have been highly damaging.

I hear people say that we could have reopened this deal after winning the election.  Frankly I think they are kidding themselves.  We won the election with an oven ready deal that got Brexit done.  I don’t think there was any market for saying either we were leaving without a deal after all, or for delaying exit day while we did another negotiation.

My personal view at this point was that the deal would probably last until the first consent vote in 2024 – if we got an FTA, which would reduce the pressure on it.  I expected that we would do so much domestic reform and change within Great Britain between 2020 and 2024 that it would be self-evidently attractive to Northern Ireland to end the Protocol and put some other arrangements in place.  I also thought that, once we left, the atmosphere between us and the EU would change: it would become much less fraught and tense as we put the bad days behind us, and therefore that we would be able to find ways of implementing the Protocol in practice which kept it workable, and ensured that it remained compatible with the Belfast Agreement in practice.

What has gone wrong?

Clearly things did not work out like that.  And here I turn to the second theme of my speech – why did it all go wrong?

I don’t want to go through the detail of what happened in 2020 while we were in the transition period, not least because my focus at the time was on the mammoth task of delivering what became the TCA rather than on the implementing provisions of the Protocol through the Joint Committee.  There, the Withdrawal Agreement required a minister to be in charge and the task was accordingly given to Michael Gove.

But I do want to draw out a few key points.

First, it became clear quite quickly that the EU had not absorbed either that we genuinely wanted a Canada-style FTA rather than a high-alignment future agreement or that we were determined on leaving the transition period at the end of 2020.  I don’t think they really realised we were serious on either point until the deadline to extend the transition had passed in June.  As a result, the first half of the year, both in my negotiation and in Michael’s, was largely shadow-boxing, and the time to work through detail got squeezed accordingly.  The covid situation worsened the practicalities even further.

Second, once they did realise this, we saw the Northern Ireland Protocol start to be weaponised in the talks – not to shape the agreement, but to try to take away our “no deal” option.  They wanted to present us with a situation whereby, if there was no deal, the Protocol’s provisions for full third country tariffs on goods moving to Northern Ireland would apply, and the “at risk” provisions would never be worked out reasonably.  We faced various threats in the talks that Northern Ireland would be “cut off” and we were even told that we would “not be able to move one kilo of butter from GB to Northern Ireland”, that is that agrifood rules and standards might be used to ban some movements altogether.

That is, third, the background to the “notwithstanding” clauses in the UK Internal Market Bill, leaked by our internal opponents in late August.  We acknowledged that these clauses would, if used, breach the provisions of the Protocol, but we felt that this was a necessary evil to ensure that we had the powers to regularise the UK’s domestic law arrangements in all circumstances, to make it clear that we would never allow tariffs within the UK, and to underline that the EU had to take seriously the no deal outcome in the FTA talks.  These UKIM provisions understandably caused fury on the EU side – though they were always very careful not to let outrage get in the way of the FTA talks, and rightly so – and less understandably among those UK parliamentarians who prioritised the EU relationship over the unity of the country.

In the end we did enough to get us to where we wanted to get to – a Canada-style fully zero tariff agreement which removed us from any kind of EU jurisdiction, while respecting reasonable fair competition concerns.  This, together with the elimination of tariffs, meant that we were able to drop the “notwithstanding” clauses from the UKIM Bill – though I must admit that if I had known then what I know now, I would have argued for them to be maintained, un-commenced, but capable of being re-activated if necessary.

Once again we reached a point where we believed, and hoped, that normal service would be resumed with the EU.  We knew the Protocol and other aspects of the WA would be tricky – but we believed that the Trader Support Service, removing most day to day burdens of form filling, coupled with a more constructive EU relationship more broadly, would make the situation manageable.

And for a brief period it seemed so.  During January 2021 it seemed that the Protocol could be made to work.  Its provisions came into force and, although there were some short-run shortages in Northern Ireland supermarkets, they mainly disappeared quickly and were arguably no worse than those in the rest of the UK.  Arlene Foster said that for the time being there was a “gateway of opportunity” while pointing forward to the 2024 consent vote when Northern Ireland could vote for the Protocol to disappear.

That came to an end on 29 January last year with the EU’s ham-fisted triggering of Article 16.  We had been told repeatedly – incorrectly, but repeatedly – over the last 5 years that it was impossible to bring into play any new processes at the land border.  We had been told there could be no new restrictions on North / South movements.  This was why we had the Protocol.  Then the EU turned round and said – in pandemic conditions that were already extremely fraught, and just hours after President Macron had denounced the AZ vaccine as “quasi-ineffective” – that it proposed to ban exports of vaccines across the land border.

The passage of time has dimmed memories of just how extraordinary this proposal was.  The EU’s rapid retreat from it showed this – but unfortunately the damage had been done.  The whole moral basis for the Protocol had been destroyed in unionism’s eyes.  It had shown that the EU’s interests came first, whatever the Protocol said.  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.

Unfortunately I don’t think we got our response to this EU action quite right.   By ourselves joining the insistence that the whole EU regulation should be withdrawn, something which was inevitable anyway, we legitimised a return to the status quo ante – but to a status quo that had, by the EU’s action, become untenable but which we then had the responsibility of managing.  I argued internally that we should not let our outrage overwhelm our interests, but was unable to persuade others.

It might have been better to point out that the EU’s vaccine proposal would have used a mechanism very much like those we had proposed for customs in autumn 2019 but had been told were impossible.  We should have said “fine. You have set a very low bar for the use of Article 16 – noted.  You have shown that it is in fact possible to control goods going across the land border. We will allow UK–standard goods to circulate in Northern Ireland and put in place arrangements to stop them getting into the single market.”  We would have had the moral high ground to act, in circumstances where a challenge would have been very difficult.

This was a huge opportunity for us and we failed to take it.  As a consequence, we found ourselves in the only possible alternative position.  That was to say that the Protocol was not workable, but without being able to effectively point the finger at the EU for making it so.  What subsequently happened was therefore inevitable.  We faced a storm of criticism as we first tried to put in place mitigations, and then proposed changes, to the Protocol.  Our opponents rightly sensed we were on weak ground and could be made to suffer for it.   Indeed the EU took the opportunity to double down by responding to our low key extension of the grace periods, in areas such as pet passports and non-commercial parcels, by immediately beginning infraction proceedings, which would end at the Court of Justice.

Instead, the pressure has been put on us.  The EU has been able to refuse any renegotiation of the Protocol, while making minor concessions to keep the upper hand.  It is we that have had to justify any use of Article 16, while facing very serious counter-threats from our friends and allies in the EU if we do.

What should happen now?

So be it.  We are where we are.  We have to face the fact that we are in a very serious situation.  It is pretty clear, and serious commentators agree, that the Belfast Good Friday Agreement is on life support. It is difficult to see the results of next week’s elections doing much to help.

To state the obvious – this matters, because, as I said at the start of these remarks, the purpose of the Protocol was to protect and support the Belfast Agreement.  That was the understood objective of the negotiators on both sides.  That is why it is explicit in the text – precisely to avoid any assumption that the later treaty supersedes the earlier one, but rather to make clear that it exists to support it.

At the moment the Protocol is doing the reverse.  The strains it is causing are actively damaging the Belfast Agreement.

It is therefore surely obvious, indeed it is an inescapable logical conclusion, that the Protocol can’t be operated as it stands.  It has to be renegotiated or removed.  The only question is how we get there.

That decision is now for the Government.  I’ll set out my view in a moment, but first I have two prior comments.

The first is to unionism and unionist voters in Northern Ireland.  Unionism is of course fragmented and has its own political issues to work through.  That is for unionist parties to sort out.  What worries me, though, is that some unionists seem recently to have given in to the temptation of accusing HMG of bad faith – allegedly in showing no regard to the interests of Northern Ireland in agreeing the Protocol in the first place and then of being reluctant to act to correct it.  I don’t think this is a fair criticism substantively, as I have tried to show.  Moreover Northern Ireland has not been “left behind in the EU” as some say.  In most respects of national life Northern Ireland is fully part of the UK and operates to UK rules.  Even in the narrower trade area, trade in services, 70% of the economy, is governed by UK not EU rules.  The union exists and is meaningful.

So I don’t think it is sensible politically for unionism to go down this road. Whatever the pressures on HMG, this is a very unionist government.  I know the PM has had to go through agonies over some of the tough decisions he has had to take.  If all he gets back is criticism, then it makes it much harder to work up political support to deal with the consequences.  Unionist criticism is best directed at the EU and the Commission who put us in this position in the first place.

Some unionists also give the impression of believing there was a pre-Protocol world where Northern Ireland was treated exactly the same as any other part of the UK and where political nationalism did not exist.  Once again I do not think it makes sense to advocate this vision.  To quote Lord Bew in parliament earlier this month, “it is very important not to fall guilty of a belief in the project of high unionism”.  However the Protocol is amended or replaced, the successor arrangements will need to respect the interests of nationalism and the need to keep up North / South contacts as well as East / West ones.  In that sense, as I have often said, we will always need special arrangements with the EU to deal with Northern Ireland.  The important thing is to get them right, not pretend they aren’t needed.

My second comment is on Ireland.  Of course I do not have any say or influence over how Ireland defines its interests.  However, the same is true of Irish observers as regards the UK, and this does not seem to stop them offering advice – for example the egregious and in some respects quite disgraceful article by Bobby McDonagh in the Irish Times on Monday.  So I feel it is fine for me to do the same.  The reality is that at most of the crucial moments of the last five years Ireland chose to throw its weight behind EU interests and to prioritise protecting the single market, instead of working collaboratively with us to find solutions that can actually work in Northern Ireland.  I understand why it has done that: it fears being cut off from the single market itself, and it recognises that it must maintain influence in the EU if it is to count for anything.  I hope Ireland feels it has got good value from the EU for acting like this, though it doesn’t look 100% clear to me that it has, and certainly its negotiating capital on this subject seems to be exhausted.

We should ourselves of course continue to try to work constructively with Ireland bilaterally.  But I would like to see Ireland acting in the same spirit – not disrupting the balance in Northern Ireland by constantly using vague and destabilising language about tectonic shifts in the North or by talking up the supposed “all Ireland economy”.  At a more prosaic level, to take just one example, I would like to see Ireland operating the Common Travel Area – which let’s not forget gives the Irish virtually all the rights of British citizens –  fully, reciprocally, and consistently, not only when it suits it.  Cooperation takes two and sometimes it means taking tough decisions in the wider interest.  We will need to see some of that realism from the Irish Government in the months to come.

Now, looking forward, I have four comments about the current situation.

First, we have surely learned from the last few years that we cannot rely on the help of the EU in Northern Ireland.  I do not think they are operating in bad faith.  But I do believe they see their own interests as coming first – reasonably enough.  We should do the same and we have every right to do so, as we are the Government for the whole of the UK, including Northern Ireland, and responsible for the security and prosperity of all its people.

Second, the international context has changed hugely.  The UK and the EU and its member states are working together closely in Ukraine behind common objectives.  Our relationship with Poland, the Balts, and other central Europeans has become a hugely important element in managing the ongoing crisis.  It may be that some Member States who in the past would have been content to tuck in behind a Commission-France-Germany axis in imposing trade sanctions on the UK, would now no longer be ready to do so and indeed would see this as entirely self-defeating.  Some might even welcome the prospect of a definitive fix, however it came, to the seemingly endless problems created by the Protocol.  If so, it would be a welcome return of realism to the EU’s collective behaviour, and very much in the right spirit for our future relationship.

Third, it remains surprising to me that the EU will not renegotiate the Protocol.  Their professed view that the Protocol is the only way to protect the Belfast Agreement would be self-evidently incorrect even if the Protocol were not so obviously now undermining that Agreement.  Renegotiation would still be the best way forward.  We have put forward reasonable and workable compromise proposals and a full legal text.

Of course the EU can, if they wish, say “what we have, we hold” – even though even now the Protocol is not being fully implemented. But it is not obvious why it is in their interests to be significantly responsible for the destruction of the Belfast Good Friday Agreement – unless, of course, they define their interests differently – as maintaining leverage over the UK, causing us political difficulties, and creating incentives to keep us closely aligned with the EU.  That would certainly explain their behaviour – and is a reason why we cannot wait for ever in the hope of improving the Protocol by consent.

Fourth, and finally, if the EU is not willing to work with us to improve the Protocol, then HMG has no choice but to act unilaterally.  Personally I have never had any difficulty with doing so at the right moment.  Nor, I believe, has the Prime Minister.

One option would be to act in a fairly limited way to remove the current pressure points, first by using article 16, perhaps more than once as difficulties arise and to create new facts on the ground, but also by making clear that it was the UK’s intention to secure a negative consent vote in 2024.  There is nothing in the Protocol which would prevent us doing this and it would be unarguably legal in all respects.

It may be that the situation cannot sustain the current tensions over so long a period.  If that is the HMG judgement, then I think it would be entirely reasonable for the Government to act unilaterally to override key elements of the Protocol in domestic law. In so doing it would be safeguarding its higher obligation to the Belfast Agreement.

I personally do not believe that acting against the Protocol should, or need, raise any issues of wider UK compliance with international law.  On the wider issues, our track record speaks for itself.  The UK is one of the most outspoken advocates of an international system based on agreed rules.

In any case, in this context, it is worth recalling the comments by then Brexit Minister Steve Barclay in Parliament on 12 March 2019, relaying the Government’s legal view, that “if …the objectives of the protocol were no longer being proportionately served by its provisions because, for example, it was no longer protecting the 1998 agreement in all its dimensions, it could …be argued that there had been an unforeseen and fundamental change of circumstances affecting the essential basis of the treaty on which the United Kingdom’s consent had been given. Article 62 of the Vienna convention on the law of treaties … permits the termination of a treaty in such circumstances.”  These comments are still highly relevant.

In any case it is obvious that the Protocol is different.  There is almost no other international treaty like the Withdrawal Agreement and the Protocol.  The UK was not a fully sovereign power when we negotiated it.  The detail of the Protocol’s provisions was essentially imposed under duress because we had no “walk away” option.  And it makes huge intrusions on UK domestic policy-making which can only be justifiable in circumstances of consensual, collaborative arrangements between the two treaty signatories, circumstances which clearly do not exist.

Moreover the Protocol is not a permanent feature of our relationship.  It is explicitly temporary.  It includes a provision for its own replacement.  It was agreed under Article 50 which in theory at least cannot be used for permanent arrangements about the future.  And – highly unusually in an international treaty – it can be voted out of existence by a legislature in one of the parties.

For these reasons, if HMG has to act against it then it would be entirely wrong and unwarranted to draw any conclusions about our wider attitude to international law.

Any such action will of course require domestic legislation and a sense of purpose and determination to deliver it that has not always been present on other issues in recent months.  The Government will need to rally its supporters in Parliament.  I hope that Parliamentarians in our Party, but also in the Labour Opposition, will be ready to look through the inevitable sound and fury and keep in mind the importance of protecting the Union on which this United Kingdom depends.  The best of both our major political Parties have always stood for this and I hope they will again.

Let me conclude.  Our relations with the EU cannot endlessly be bound up with Northern Ireland.  The inability to reach a durable Protocol settlement means that a huge, indeed an unbearable, amount of weight has been put on Northern Ireland’s fragile politics as a result.  Those politics may now be reaching breaking point and making the current arrangements unworkable.  It is time to put our own interests first – the integrity of the UK first – the British people first.  I hope that the Government will do so.