But while concrete problems are challenging, constitutional and political issues can be incendiary. When unionists argue that the Protocol violates the Good Friday Agreement and undermines the Union, have they a case?
Before the referendum the Irish Government stressed – as indeed did Tony Blair and John Major – that a vote to leave could have serious repercussions in Ireland. There were concerns about other issues – the protection of human rights, North/South co-operation, and the maintenance of the Common Travel Area – but from the beginning the focus was mainly on the border. Ireland was remarkably successful in persuading the EU member states and institutions to accept its analysis and adopt its objectives. In the context of protecting the peace process and the Good Friday Agreement, “the aim of avoiding a hard border” was front and centre of the EU’s negotiating mandate. For the EU the maintenance of the integrity of the Single Market was also a paramount objective – as it was for Ireland.
A “hard border” is not a precise legal term. It might have been interpreted as allowing some light arrangements some distance away from the actual frontier. But it was progressively firmed up on the EU side to mean that there could be no checks or controls on the island of Ireland. This in turn led to the conclusion that Northern Ireland must remain aligned with relevant EU single market and customs regulations, unless other arrangements with the same effect (which nobody on the EU side could envisage) were agreed.
In the crucial early months of the negotiations the UK essentially permitted Ireland to present itself as the primary guardian of the Good Friday Agreement. It largely accepted – or at least did not seriously question – an interpretation of the Good Friday Agreement which highlighted its North/South dimension. It also agreed to the model of NI/EU alignment set out in the December 2017 backstop. It did so to allow negotiations to move on to other questions, and with the expectation that these issues would be revisited. This was understandable. But it created the dynamic which inexorably led to the Protocol. Theresa May’s attempt to break free of this logic led her to propose a UK-wide alternative which would effectively have meant no meaningful Brexit at all and was doomed from the start.
Boris Johnson initially refused to face up to the realities of the choice he was going to have to make. He assured unionists that he would not accept a deal which placed any barriers between Great Britain and Northern Ireland. But eventually he did, despite his persistent claims that he didn’t. The British Government, reasonably from its point of view, had prioritised the interests of the UK as a whole, and its own political interests – avoiding a no deal crash-out negotiated Brexit.
The point of this recapitulation is to demonstrate that the die was cast early in the Brexit process. The Irish Government remained consistent in its analysis and tireless in its diplomacy. There were intermittent attempts by unionists and their sympathisers to offer an alternative interpretation of the implications of the Good Friday Agreement, but these never gained serious traction in London or Brussels. The EU side never re-examined its assumptions about threats to peace and where they might come from.
In fact, the Good Friday Agreement says either little or nothing about the European Union, about the border between North and South, or about trade within the UK. Therefore, the argument that Brexit or its outworkings formally violate the Agreement is hard to sustain. But Brexit seriously breaches the context and spirit of the Agreement, with very real political and psychological effects. One way or another, its implementation was always going to be disruptive and damaging.
The constitutional provisions of the Agreement, including the guarantee of Northern Ireland’s constitutional status on the basis of consent, remain unchanged by Brexit. However, the Protocol undoubtedly adds significantly to the ways in which Northern Ireland is different from other parts of the United Kingdom. Northern Ireland will be unrepresented in the making of new EU laws by which it will be bound (as, incidentally, are Norway and Switzerland). In principle, therefore, unionist opposition is understandable and legitimate. But so too is nationalist opposition to the fact of Brexit itself and to a North/South border.
At various stages the British Government proposed some form of consent mechanism as a means of winning unionist support. The main novelty in the 2019 Protocol was indeed the inclusion of provisions on the future consent of the Assembly to the continuing operation of the single market and customs elements. In principle, this might seem reasonable and democratic – though I am not sure about the consequences for the British Government’s role as a sovereign negotiator, or for the internal UK constitutional order.
However, in the end the formula which emerged was mainly cosmetic – and with malign consequences. Changing voting rules to allow consent to be given by a simple majority runs directly against a key element of the internal balances within Strand One of the Good Friday Agreement. On this, unionist objections are quite fair – though would they have been made if there were a unionist majority? But to allow a minority of MLAs to stymie a key element of an international agreement would also be unconscionable.
Another effect is that the provision for periodic Assembly votes will regularly provide an additional source of potential political instability. And finally, the denial of consent would initiate a two-year period of fresh EU–UK negotiations, with no certainty – far from it – that any other solution would be found to the same problems that bedevilled the 2017–19 negotiations. During that two-year period the Protocol would operate as usual. So the consent provision is essentially meaningless, does not give unionists the lock they sought, contravenes a key element of the Agreement, and will create new opportunities for political disputation. It would have been far better had it been left out.
Checks and controls are here to stay. And their location was determined in the Protocol. This might or might not be the least bad outcome, depending on one’s point of view. But it is futile to think that it is going to change, that the EU is going to be open to a renegotiation, or that the British Government will abandon the Withdrawal or Trade and Cooperation Agreements.
The path forward is to push for the most pragmatic and flexible application of the Protocol possible. This would require thorough assessment of what the longer-term practical impact of the Protocol on East-West trade actually is. There would need to be an examination of whether the UK is currently using all the possibilities available to it within the Protocol – the Commission says not. How exactly EU rules are being applied also needs to be studied.
Arlene Foster and Michelle O’Neill should be able to put together a broad coalition, including business interests, in favour of such an approach – accepting that Brexit is a reality and that the Protocol will stay, but mitigating their effects to the greatest extent possible.
This should surely be in the interests of the British Government too – or at least of a British Government which understood and took seriously its obligations as a joint steward of the Good Friday Agreement and the representative of all the people of Northern Ireland, in their diversity and complexity. It would also require the British Government to appreciate the value of a co-operative and amicable relationship with the European Union, and not use the genuine concerns of many in Northern Ireland as a tactic in continuing skirmishes with the EU.
Article 18 Democratic consent in Northern Ireland
- Within 2 months before the end of both the initial period and any subsequent period, the United Kingdom shall provide the opportunity for democratic consent in Northern Ireland to the continued application of Articles 5 to 10.
- For the purposes of paragraph 1, the United Kingdom shall seek democratic consent in Northern Ireland in a manner consistent with the 1998 Agreement. A decision expressing democratic consent shall be reached strictly in accordance with the unilateral declaration made by the United Kingdom on [DATE] , including with respect to the roles of the Northern Ireland Executive and Assembly.
None of this is to excuse the Commission’s appalling error in allowing for the possible suspension of aspects of the Protocol under Article 16. One would have thought that even the most technocratic official, on seeing “Northern Ireland” in a draft document, would have remembered that there had been a Brexit negotiation, and sought to check. That said, the mistake was almost immediately rectified, with profuse apologies. But inevitably the more the EU suspects that the British Government is trying to use unhappiness with the Protocol for its own political or negotiating purposes, the more cautious it will be in engaging with a partner whose good faith it suspects.
The Irish Government finds itself in a very difficult situation. It obviously wants to defuse the political impact of Brexit on Northern Ireland. It has no interest in complicating trade between Great Britain and the North. It is the only member state with a deep understanding of Northern Ireland and a stake in its future. This should make it receptive to playing an active role in Brussels and EU capitals to support maximum flexibility in the operation of the Protocol, North. Specifically, it could develop the case, made by unionists and others, that Northern Ireland’s geographical position and economic scale make it unlikely to act as a serious channel of disruption of the Single Market. The reality that Northern Ireland/GB trade takes place in a completely different political and constitutional context from that of EU relationships with any third country could also be stressed. These would not be simple arguments to make. EU partners might argue that Ireland, having worked so effectively to achieve the arrangements in the Protocol, should not now question their consequences. More damaging would be a perception that the Irish Government was acting, consciously or otherwise, as an ally of the British Government. That is why Ireland cannot now take the lead in making a case in Europe. To do so, it would have to be acting in support of a broad Northern Ireland coalition working to achieve attainable outcomes. It would also need to be complementing a British Government which accepted its obligations and was presenting reasonable and consistent arguments in a helpful way. Neither condition is currently met.