The Northern Ireland protocol: can the UK be trusted?

Stormont Parliament building, home to the Northern Ireland Assembly. Photo credit: Robert Paul Young

For those of us living far away in Sussex, does the question of the Northern Ireland Protocol really matter? Is it an obscure pact within an international treaty which doesn’t really affect us, or does it stand between us and the reawakening of divisions, not just on the island of Ireland, but within the four-nation UK as well?

Could the triggering of Article 16 of the Protocol, threatened by the UK government, result in the break-up of the UK, and endanger our future prosperity and security of supply chains as well as the country’s moral integrity and its standing in the world?

Has Brexit killed the Good Friday Agreement?

Watching the BBC “Blair and Brown” series recently, it was instructive to recall what a brave and historic achievement by all the parties involved, the Belfast or Good Friday Agreement (B/GFA) of April 1998 really was. This fragile peace accord, that has saved lives for over 20 years now, successfully brought to an end most of the Troubles which had blighted life in Northern Ireland (and by extension the UK as a whole) since the 1960s.

Before Brexit, the UK’s and the Irish Republic’s membership of the EU meant that both were in the EU’s single market and customs union. This facilitated the delivery of B/GFA in a manner which respected both the Nationalist and Unionist communities.

What was at stake did not relate only to trade. In order to give practical effect to the identity provisions of the agreement, namely, an entitlement to identify as British, Irish or both, it was essential that the customs border, removed by the EU Single Market from 1 January 1993, should not return.

Northern Ireland, like Scotland, voted to remain in the EU in 2016. Yet Brexiteers opted for a “hard Brexit” without regard for the consequences for the island of Ireland. This in turn led to the creation of the Protocol (part of the EU/UK Trade and Co-operation Agreement, signed on 30 December, 2020). It requires all goods travelling from GB to NI to comply with EU customs laws, thereby ensuring that the customs and regulatory alignment between Ireland and Northern Ireland remains in place.

The Protocol has underpinned an all-Ireland economy and is necessary to avoid what President Biden has referred to as a “guarded” border on the island of Ireland. The result was the creation of a “border” in the Irish Sea, (something Theresa May said no British prime minister would ever accept), and was entirely Boris Johnson’s decision.

Sovereignty vs good intentions

Following the resignation of Brexit Minister Lord Frost, the responsibility for relations with the EU has passed to the Foreign Secretary Liz Truss, a potential successor to Boris Johnson. Notwithstanding rumours that the beleaguered Prime Minister had decided to back away from a confrontation with the EU over the Northern Ireland Protocol, her first act in this role was to reiterate the threat to trigger Article 16, suspending the Protocol if the UK’s demands are not met.

Lord (David) Frost. Photo credit: UK Government

The Article states that “if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures.”

Have such circumstances arisen? The evidence seems scant. However, under the Protocol arrangements, trade between Northern Ireland and the Irish Republic has soared, as have exports from the Republic to Great Britain. Exports from Great Britain to the Republic on the other hand, have significantly declined. Perhaps the actions of the Brexiteers have unwittingly strengthened economic integration on the island of Ireland?

It is notable that the Chairman of the Commons Northern Ireland Committee, Tory MP Simon Hoare, quoted in the Financial Times on 18 November, said that no Northern Irish business had approached him on this and “most businesses just want stability and a chance to make a profit, not more uncertainty.” Furthermore, the President of Northern Ireland’s Chamber of Commerce said on 25 November: “70 per cent of our members believe that Northern Ireland’s unique status presents opportunities for the region.” This is because, unlike the rest of UK businesses, those in Northern Ireland still have unrestricted access to the EU’s huge single market for goods.

By resigning his portfolio, Lord Frost had effectively objected because his own creation, the Protocol, offended his sense of the need for UK “sovereignty”. His particular “bête noire” was the role of the European Court of Justice (ECJ) in overseeing the arrangements in the Protocol.

He proposed to replace this with an “honesty box” approach to the Irish Sea. From the EU’s point of view, however, if the Protocol is suspended, it will be forced to set up a “hard” north/south border in Ireland, or risk the Irish Republic’s position in the EU single market being compromised over time, because of unchecked goods “leaking in” from Britain.

Furthermore, under World Trade Organisation (WTO) rules, the EU has to properly protect the borders of the EU free trade area, otherwise the legal basis of the whole single market of 450 million people could be jeopardised.

NI Protocol: teetering on the brink?

In terms of whether triggering Article 16 would reflect opinion in Northern Ireland, a recent survey of public opinion, published on 28 October, found that 52 per cent of respondents consider the Northern Ireland Protocol to be a ‘good thing’ on balance. The poll also found that the ECJ issue was not a priority concern for the majority of Northern Ireland voters.

However, opinion in the six counties is clearly polarised, with many unionists claiming the Protocol – and therefore Brexit – has weakened their constitutional position within the UK. A threat by the leader of the Democratic Unionists (DUP), Sir Jeffrey Donaldson, to trigger an early election of the Northern Ireland Assembly has provided some leverage for the UK in the negotiations, but has itself been criticised in Northern Ireland at a time of rising Covid cases and energy price hikes.

The European Commission has offered to simplify checks by up to 80 per cent on animal and plant-based products and halve the customs paperwork on the Irish Sea border, but in the light of Truss’s statement, this has clearly not been enough to satisfy the UK.

Brexit agreement: a question of trust

The EU’s Brexit negotiator, Maros Sefcovic, has warned of “serious consequences” if Article 16 is triggered. Simon Coveney, the Irish Foreign Minister, has said that the EU could react to the triggering of Article 16 by terminating the entire Brexit deal. If that were to happen, the whole of the UK would ultimately face the prospect of reverting to a “no deal” scenario, trading on WTO terms with its largest market. The economic damage to the UK economy, already weakened by Brexit and Covid, could be severe, as supply chains would suffer even greater disruption than they have already.

This could be seen as sabre-rattling on the part of the EU but, according to the Economist, threats to trigger Article 16 can also be seen as the UK preparing the ground for a trade war with the EU, aimed at distracting attention from the government’s woes at home.

In the process, the UK government would not only have alienated the Irish government, its co-guarantor in the B/GFA peace process but, of course, the whole of the EU, which backed up the agreement through PEACE programme funding and the EU single market on the island of Ireland. Germany’s new coalition agreement, announced on 24 November, referenced both the Northern Ireland Protocol and the Good Friday Agreement, and threatened “counter-measures” if there were not full compliance by the UK.

On 11 November, at a meeting with EU President von der Leyen, President Biden reiterated his support for the EU position on the Protocol. He has also made it clear that this issue could jeopardise any chance of a trade deal between the UK and the United States, one of the supposed “crown jewels” of Brexit.

Liz Truss, Secretary of State for Foreign, Commonwealth and Development Affairs. Photo credit: UK Government

Liz Truss’s statement following her first contact with Maros Sefcovic on 22 December read: “The UK position has not changed. We need goods to flow freely between Great Britain and Northern Ireland, ending the role of the ECJ as the final arbiter of disputes between us, and resolve other issues.”

As the Guardian has pointed out, this particular record, of “failure in government to understand or even engage with the full implications of leaving the EU on the terms that Mr Johnson negotiated” seems to be stuck in the same groove. It will take a change in administration before this is properly addressed.

Until then, it is not just Northern Ireland, but the whole of the UK, that will suffer the consequences.

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