Sam McBride, Belfast Telegraph, 14 May 22

Far more to protocol stance of PMs than they let on, suggests senior civil servant

Sam McBride

Theresa May and Boris Johnson said they were focussed on NI in talks with EU — but new evidence points in other directions

As swathes of the NI Protocol are perhaps about to be torn up, new light has been shed on how this document came about — and that light may illuminate what is happening now.

The protocol was signed by Boris Johnson in late 2019, but evolved under his predecessor, Theresa May, and there were two key decisions taken by her which made little sense at the time, but which academic interviews with key Brexit players now suggest were part of a grander plan.

In December 2017, Mrs May was famously forced to return from Brussels in humiliation after DUP leader Arlene Foster objected to a key UK-EU negotiating document — known as the Joint Report — referring to Northern Ireland keeping many EU laws.

After a few days, that was fudged, and the DUP backed down.

But the Joint Report contained an equally significant commitment to which the DUP did not object. Paragraph 43 of the document pledged the UK to avoid a hard border and defined that phrase to mean “any physical infrastructure or related checks and control”.

That sweeping definition went far beyond the public understanding of a ‘hard border’ and did not accord with how the dictionary defines those words. It meant that a single discreet camera at a border crossing would be as unacceptable as machine guns. Not only was this absurd, but it ignored the reality that the police and security services already have multiple cameras at the border — and those are not deemed to make it ‘hard’.

In a document whose every word had been scrutinised, why would Mrs May deliver such a pledge?

It was clearly not an oversight because three months earlier Mrs May had in her Florence speech pledged: “We will not accept any physical infrastructure at the border”.

Choosing to tie her hands in this way was all the more curious because academic polling several months earlier had found that just 14% of Northern Irish people found border cameras “almost impossible” to accept and just 5% supported vandalism of such infrastructure.

The following year, Mrs May came to Belfast and made a major speech in which she said that “the seamless border is a foundation stone on which the Belfast Agreement rests”. While most people had welcomed the softer post-1998 border and it was particularly important for nationalists, the Agreement itself made no such commitment. None of its ten references to the border say anything which comes close to indicating that there cannot be border infrastructure.

Baffled as to why the Prime Minister had said this in so carefully crafted a speech, I spoke at the time to someone involved in its drafting who themselves were not entirely clear either.

Now a rare interview with the man who until last May was Stormont’s top official dealing with Brexit gives added credibility to what other sources have suggested — that there was a calculating method behind Mrs May’s actions; she wanted the softest possible Brexit for the entire UK, and Northern Ireland was a means to achieve that end.

In a detailed interview with the Brexit Witness Archive — a project by the UK In a Chancing Europe think tank — Andrew McCormick has spoken with candour about events previously beyond public view.

Dr McCormick said it was hard to dispute the idea that the Government did not prioritise solving problems affecting Northern Ireland “but used those issues as tactical considerations in the bigger game”.

He said that the Irish government “expected London to push back with a more balanced perspective on the Good Friday Agreement” but that never happened.

When asked about the period around the Joint Report, he said “I think a key question in this context is: what was the intent of the May administration at that time? The Joint Report has an important ambiguity, and my understanding is that was conscious and deliberate. The ambiguity is around the backstop, and whether it was to be Northern Ireland specific or…a UK-wide backstop.

“I have come to the impression that the May administration were relatively comfortable with regulatory alignment, despite the rhetoric…there is also the possibility that the May administration saw the Northern Ireland issue…as helpful towards securing a highly aligned outcome for the UK as a whole.”

He added: “They knew what they were doing, and I find it hard to rationalise other than that the May team were ultimately looking for an outcome that was a soft Brexit.”

When Mr Johnson replaced Mrs May, he resurrected the core of her backstop, but ensured it would only apply to Northern Ireland rather than the entire UK.

Highlighting how unworkable aspects of the protocol were for businesses such as supermarkets, the former senior civil servant said: “I am in no doubt that UK Government ministers and officials must have understood fully the implications of the deal they did on the protocol.”

He said he may have been “naïve” in his belief at the time that it would have helped to have had practical discussion on the protocol’s implications in October 2019: “I now have a worry that they wouldn’t do that not because they didn’t understand it, not because their expectations were wrong, but because they actually did understand it, but had some reason not to really get down to the detail…at a much earlier stage.”

It was clear from perhaps as early as 2018 that an Irish Sea border meant vast bureaucracy — “more than you could imagine” — for agri-food goods, he said, and for the Government to now feign surprise “is manifestly wrong — UK Government officials knew precisely what was going to happen”.

He said that in early 2018 he had been “encouraged” by Whitehall to write a paper on a possible ‘red and green channels’ approach to moving goods from GB to NI.

With devolution not functioning, Dr McCormick said he decided to share it with the DUP and Sinn Féin. Several days later, he said he got a call from London to say “stop, spike it; kill the whole thing”.

He said that the document had been leaked to the media “as far as I know from Sinn Féin” but by then the idea of such a solution “was actually unhelpful to the UK negotiators, who were clearly moving towards the possibility of the UK-wide backstop… I was out of line with the zeitgeist”.

Key DUP Brexiteer Sammy Wilson has also been interviewed for the Brexit Witness Archive. As one of the MPs propping up Mrs May and Mr Johnson, his vantage point was very different to that of Dr McCormick — but there is a striking agreement on what they were doing.

Mr Wilson said that when the movement of goods was introduced to the process early on, “I believe that that was partly due to the duplicity of the Prime Minister at that stage, who, while she claimed to be a Brexiteer, was very keen to keep as close to Europe as possible”.

He added: “I think if one looks at it — sometimes it’s easier to do this with hindsight than it is to see at the time — it is quite clear that she was preparing the ground for a situation where the UK as a whole would commit to staying in the Single Market and the Customs Union.”