Abstract
© CLODAGH KILCOYNE / Alamy Stock Photo
Northern Ireland has been the defining issue in post-Brexit relations between the UK and the EU. But difficulties over the Protocol are best understood as symptoms, not causes, of the present danger to the Good Friday Agreement, writes
That Northern Ireland emerged as the flashpoint in Britain’s Brexit ambitions is hardly surprising. It is a part of the United Kingdom connected to the EU with a land border and to Great Britain by a sea border. The 499km land border has more than 200 officially-recognised crossing points; the sea border has four main entry points. It is, thus, easier to monitor what enters and exits Northern Ireland by sea and air than by road, rail or river: a fact that Brexit has brought into stark relief.
The fundamental issue – which the Northern Ireland Protocol was an attempt to solve – is that the EU needs to know what enters its single market and customs union, which the UK chose to leave. This requires a hard border between the UK and the EU. In simple terms, a hard border entails the means to know what is crossing the border (i.e. data), that it meets the criteria for entry (i.e. controls), and that it can be stopped if it doesn’t (i.e. checks). The miles of nose-to-nose vehicles waiting for approval to cross the Channel from Dover encapsulate the operation of a hard border.
Both the UK and EU agreed from the outset of the Brexit negotiations that they wanted to avoid a hard border on the island of Ireland. They saw the openness and invisibility of the Irish land border as a sign and benefit of the peace process. But – despite quests to find alternatives – they could not find a way to manage a hard border without those three cornerstones of border management (data, controls and checks) being in place. And the prospect of using these on the land border was all but inconceivable for both practical and political reasons. Both the UK and EU still hold to this view.
The Protocol
The alternative negotiated by David Frost, on behalf of Prime Minister Johnson in October 2019, was the Protocol on Ireland/Northern Ireland as part of the UK-EU Withdrawal Agreement. Although Northern Ireland left the EU with the rest of the UK, it remained de facto in the EU’s customs union and single market for goods. Goods entering Northern Ireland were to continue to meet the EU’s criteria for free movement in the single market. Management of this process was to take place in the ports either side of the Irish Sea – and the authorities responsible for doing so on behalf of the EU were the UK authorities.
The Protocol thus allowed the UK government to cut many of its ties with the EU, seemingly unconcerned about the consequences for movement of various types (good, services, people) to and from Great Britain. This is seen in the thinness of the Trade and Cooperation Agreement (TCA) that Frost went on to negotiate in double-quick time by the end of 2020. The TCA and Protocol came into effect on 1 January 2021.
At the same time, the UK government also negotiated ‘grace periods’ for some of the more burdensome aspects of the Protocol. These were to allow it time to adapt to the application of the EU’s rules for the entry of highly regulated goods, such as agri-food, plant, animal and medical products. These fixes were grossly insufficient for the scale of the challenge. Business urged longer-term solutions, recognising that the full application of the EU’s external border within the UK market would be unworkable. And so it was – as the grace periods officially expired in Spring and Summer 2021, the UK government proved both unwilling and unable to implement the Protocol in full.
The Protocol thus allowed the UK government to cut many of its ties with the EU, seemingly unconcerned about the consequences for movement of various types (good, services, people) to and from Great Britain.
New problems
In Autumn 2021, the UK and EU agreed to a ‘standstill’ and commenced talks. The government’s negotiating position was set out in its Command Paper of July 2021, with a list of Protocol problems that ran from agri-food regulations to VAT. That October, the EU also set out its position. It put forward and legislated for some solutions (including most notably on the supply of medicines to Northern Ireland), and offered proposals for others (including on customs and Sanitary and Phytosanitary (SPS) controls). Even though these did not go far enough, it does give lie to the claim that the EU has stubbornly refused to move.
The talks came to an end in advance of the Spring election to the Northern Ireland Assembly, with a UK-EU Joint Committee meeting in February 2022 which affirmed ‘the ongoing determination of both parties to ensure that … durable solutions found for the benefit of citizens, businesses and stability in Northern Ireland’. But the means of doing so is stymied by a most fundamental disagreement. The UK wants renegotiation of the Withdrawal Agreement and the EU wants tweaks within the terms of the Protocol. It is like two people trying to fix a dripping tap when one is loath to do much more than give the O-ring a polish whilst the other is determined to rip out the sink.
In the meantime, what has been happening in Northern Ireland? A measured analysis would show that the ‘Protocol-lite’ implemented so far is, on balance, bringing economic benefits to Northern Ireland. Most of those who had difficulties early in 2021 had, by mid-2022, managed to adjust to the new arrangements. Crucially, the systems of support put in place by the government to help Northern Irish business navigate the new requirements for bringing goods from Great Britain have also become more efficient (although these have always been intended to be temporary).
In general terms, exporters and manufacturers are doing well, exploiting Northern Ireland’s free access to both the GB and EU markets. Cross-border trade in particular has grown dramatically. Some local NI producers are enjoying increased demand as alternatives for goods from Great Britain are sought. Those who continue to struggle are, in the main, those who depend on sourcing products or parts from Great Britain or who are part of supply chains that criss-cross the Irish Sea. This is especially problematic for small businesses with limited resources. However, the Protocol is rarely thought of or talked about in terms of technicalities. It is now totemic.
Protocol politics
Contrary to the impression given by the British government, the Protocol enjoys majority support in Northern Ireland (see Figure 1). Although all political parties recognise that adjustments need to be made to the Protocol to find a long-term alternative to the grace periods, 52 of the 90 MLAs support the Protocol in full and explicitly reject unilateral action by the UK government. These MLAs are from nationalist and non-aligned parties, which are overwhelmingly supportive of the Protocol (82 per cent Alliance, 91 per cent SDLP and 96 per cent of Sinn Fein voters support the Protocol).
‘The Protocol is on balance good for Northern Ireland’; time series analysis.
Whatever the peril to the 1998 Agreement, it is not technocratic or economic but political. The logic of the Agreement itself tells us such problems cannot be resolved unilaterally or by addressing the concerns of one party alone.
The picture and pattern is very different among unionists. The majority of supporters of the moderate Ulster Unionist Party (60 per cent) think the Protocol is not appropriate for Northern Ireland but a majority (53 per cent) also believe it could potentially bring economic benefits. Strong unionists are near-unanimous in their rejection of the Protocol – 92 per cent of Democratic Unionist Party supporters think it is not appropriate. The Traditional Unionist Voice (TUV) is even more hardline (95% opposed). This is significant because the DUP believes the TUV’s unrelenting lambasting of the Protocol as a threat to the union cost the DUP votes (even though the TUV still only has one MLA), thus seeing Sinn Fein top the poll in May.
For this reason, the DUP sees a hard stance on the Protocol as being the means by which it could regain its place as Northern Ireland’s largest party. In this vein, it has refused to nominate a Speaker or a Deputy First Minister until the Protocol is ‘resolved’ to its satisfaction, leaving Northern Ireland without a fully functioning legislature or Executive in the middle of growing cost of living, energy and healthcare crises. Although the other main parties strongly object to this tactic, polling suggests that the DUP enjoys overwhelming support from its base (and, notably, TUV voters).
The ‘peril’
The DUP’s exercise of a veto over the functioning of the devolved institutions constitutes the evidence given by the UK government that the Protocol ‘fundamentally undermines the 1998 Agreement’. This is crucial because it forms the grounds for the government’s claims that the Protocol poses an immediate ‘peril’ to the 1998 Agreement, and that it is therefore justified in breaking international law through the Northern Ireland Protocol Bill. For this is what it would do.
The Protocol is given effect in the UK through the EU Withdrawal Act (2018). The NI Protocol Bill would disapply the provisions of it that the government sees as problematic. What comes in place of those provisions is to be filled by secondary legislation, the timing and content of which are to be determined by Ministers of the Crown as they ‘consider appropriate’.
From what we know of the Bill, the overall effect in economic terms is predominantly to the benefit of businesses in Great Britain who wish to trade with Northern Ireland, rather than the Northern Irish economy as a whole. Indeed, there is a risk that the stability and certainty for which Northern Irish businesses have consistently called is reduced by this Bill. This is especially so, of course, if the EU ratchets up from infringement proceedings to retaliatory measures in response.
A bigger negotiating table
In terms of its political effects, the Bill is even more unpredictable. There is no guarantee that it will pave the way for the DUP to nominate a Deputy First Minister. If an Executive is not formed by 28 October, there has to be another NI Assembly election (by 23 January). Will the formation of an Executive after that depend more on the progress of the Bill or on whether the DUP has regained the largest number of seats? And how will this issue affect the timing, conduct and tenor of the election? Amid all this, to what degree is the UK government upholding its 1998 Agreement obligation to exercise sovereign power here with ‘rigorous impartiality’?
Whatever the peril to the 1998 Agreement, it is not technocratic or economic but political. The logic of the Agreement itself tells us such problems cannot be resolved unilaterally or by addressing the concerns of one party alone. Any resolution requires an approach based on partnership with those who genuinely have a stake in securing a peaceful future for Northern Ireland. To ‘fix’ the current problems in Northern Ireland, the UK does not need a bigger stick but a bigger negotiating table.
Footnotes
Katy Hayward is Professor of Political Sociology at Queen’s University Belfast and a Senior Fellow of the UK in a Changing Europe thinktank.