The Northern Ireland protocol forms part of the withdrawal agreement entered into by the UK with the European Union to govern the terms of the UK’s departure. It has been the source of much controversy and is opposed vehemently by Unionists within the province, for whom it represents an affront to the unity and integrity of the UK.
Recent government proposals to unilaterally revise the protocol have been attacked on legal grounds, as well as being regarded as politically dangerous. The average citizen is unlikely to appreciate the implications of these proposals, or indeed the purpose of the protocol itself.
However, these give rise to some very sensitive potential political and legal implications.
The Irish border dilemma
In 2016’s EU membership referendum, 56% of Northern Irish voters cast their ballot in favour of the UK remaining within the EU. However, the UK-wide approach towards Brexit pursued a future relationship which would not involve the UK remaining part of the single market. This created particular problems as far as Northern Ireland was concerned and it would become a major stumbling block in UK-EU withdrawal negotiations.
In a nutshell, the principal issue concerned the Irish border. Under the terms of the Good Friday Agreement, which brought peace to Northern Ireland in 1998. A ‘hard’ border on the island of Ireland is precluded. This means there can be no restrictions placed on movement between Ireland and Northern Ireland via passport or customs controls.
However, on account of the UK leaving the EU, the Irish border became the only land border between the UK and an EU member state. To preserve the integrity of the EU’s single market, which the UK had opted not to retain membership of, it became necessary to devise some form of arrangements which could impose checks on the movement of goods between the UK and EU via the Irish border.
From Irish backstop to Northern Ireland protocol
The need to address the Irish border issue presented a real obstacle to obtaining parliamentary endorsement of a withdrawal agreement during Theresa May’s prime ministership. The ‘Irish backstop’ part of the agreement was fiercely opposed by the DUP, whose support her government relied upon for its continued grip on power.
The issue appeared to be resolved when the Northern Ireland protocol was endorsed by parliament as part of the withdrawal agreement concluded between Boris Johnson’s new government and the EU, following the 2019 general election.
The protocol essentially seeks to balance the need to avoid the imposition of a ‘hard’ border on the island of Ireland with the creation of means to police goods travelling across an EU border. It does so by requiring the UK to impose checks on goods travelling to Northern Ireland on the basis that in the absence of an enforced border on the island, these may ultimately enter the EU.
The much-maligned consequence as far as Unionists especially are concerned, is that this gives rise to a de facto border in the Irish Sea, disturbing the notion that Northern Ireland is an equal, integral part of the Union. While other Northern Irish parties may lack any great appetite for the protocol, they have accepted its necessity as the price to pay for the maintenance of a ‘soft’ Irish border and the peace which it underpins.
Concerns over the Northern Ireland protocol have never gone away.
The British government gave notice of its first attempt to water down its effects when introducing legislation to govern the UK’s own internal market post Brexit, by conferring powers on ministers to disapply parts of the protocol.
As it represented part of an international agreement entered into with the EU, the proposals were condemned as likely to engage the UK in violating international law, something which a government minister was forced to acknowledge would indeed be the case. Although the proposals to alter the protocol on that occasion were abandoned, discussions with the EU on its possible revision continued albeit without any signs of much progress.
The issue really returned to the fore again in the run up to and aftermath of the 2022 Northern Ireland assembly elections, in which for the first time a Unionist party failed to top the poll. Prior to the elections, the DUP agriculture minister had halted customs checks at Northern Ireland’s ports, before his party colleague, First Minister Paul Givan resigned in protest at the protocol. The assembly’s ability to sit is dependent on the participation of the DUP, which opted to boycott the devolved institutions in protest at the protocol.
UK government plans receive widespread condemnation
In June, Foreign Secretary Liz Truss announced plans to revise it in order to reduce checks on goods travelling from mainland UK to Northern Ireland. As before, there has been widespread condemnation of these proposals on both legal and political grounds.
The refusal of the government to publish the legal advice it has received on the proposals raises strong suspicions of their likely illegality, deeply damaging to the UK’s global reputation. The implication is that either Johnson’s government did not appreciate the nature of the obligations it entered into, which appears implausible, or it has come to the conclusion that its relationship with a close regular ally militate in favour of the unilateral variation of their terms.
Politically, reneging on the protocol is likely to be detrimental to the UK’s relations with Ireland, a key defender of the need for it. A logically foreseeable scenario would result in the passage of volumes of goods into that country which do not conform to EU standards.
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