Long before it had negotiated its withdrawal from the EU, the UK Government insisted on describing the months that would follow as ‘the implementation period’. The intention, one presumes, was to give the impression that the simple act of ‘getting out’ of the EU was the primary objective. What EU exit meant in practice was never spelled out; it just needed to be implemented.
The EU, on the other hand, consistently referred to the same length of time as the ‘transition period’ – this is the term used in the legal text of the Withdrawal Agreement. This would be the months of suspended animation before the full force of Brexit would come into effect. It would allow the UK to adjust to being outside the European Union, and the EU to adapt to being a Union of 27. Many expected that it would also be a period of transition into a new relationship. In a characteristic rush of bravado, Boris Johnson confidently predicted that the terms of that new deal could be decided by the summer.
The problem for the Prime Minister, however, was that an Agreement would (by definition) entail compromise. Whatever the new post-Brexit conditions would be, they could only be worse in real terms than those pre-Brexit. Thus Johnson’s choice: is it better to have ‘full sovereign independence’ and chaos at Dover, or a ‘negotiated outcome’ with some alignment to EU rules? Ultimately the complexity was whittled down to a simple calculation: which outcome would be easier to spin?
When Johnson negotiated the Withdrawal Agreement in October 2019, he had known how to sell it. The ‘detested’ backstop was gone. There would be no hard Irish border and no EU alignment for Britain. He had the freedom to embrace a Brexit as ‘hard’ as he wished for. The flipside was that the effects of this would now be felt within the UK, namely down the Irish Sea. The UK Government was unsurprisingly slow to acknowledge the ramifications of this decision. If it wished for a softer sea border, it needed a close future relationship with the EU. This option was apparently never contemplated, let alone aired. Instead, Johnson’s strategy rested in the UK’s ability to persuade the EU to go easy on the rules when applying them to what is now referred to in EU law as ‘United Kingdom (Northern Ireland)’.
So the UK Government belatedly prepared to implement the Protocol even as it denied what was entailed. Hundreds upon hundreds of millions of pounds poured into new and ambitious schemes to enable goods to cross between Britain and Northern Ireland in a way that impacts ‘as little as possible’ on everyday life. Most of these measures have been rapidly conjured up; many of them are temporary fixes; all of them are untested for the task.
We can expect, therefore, that 2021 will add no small amount of confusion to the Brexit uncertainty. What is created from disorder will not bring order. The UK’s priority may be to keep things much the same as they are now but, ultimately, 2021 means the implementation of Brexit. And this will have consequences in Northern Ireland.
The ‘best’ the Government can aim for is to make sure the worst effects of this will be away from the cameras (and the EU observers). This doesn’t mean that there won’t be turmoil, just that it will be predominantly contained in the boardrooms and offices and depots and ports. That is to say: high-level collective indecision inevitably ends in individuals having to make costly decisions. The effects of these decisions will not remain hidden. Whether they will grow exponentially to cause increasing disruption, or whether they will be tempered and redressed, depends on how the responsibility to implement the Protocol is taken up and overseen.
The NI Executive and Assembly have very little direct say over how the Protocol is implemented. Indeed, there is no formal requirement that either the UK or the EU consult with the NI Executive in the decisions made by the Joint Committee charged with administering the Withdrawal Agreement. And the scope for devolved scrutiny over those decisions is worryingly limited. The ‘consent vote’ of MLAs at the end of 2024 on the Protocol is no substitute for proper power or representation here. If they withhold their consent, it just places the all too familiar conundrum of ‘how to avoid a hard Irish border’ back in the hands of the UK and EU to negotiate behind closed doors.
Yet the significance of the Protocol for the governance of Northern Ireland should not be downplayed. There will be new difficulties, new gaps, new tensions that emerge over time. These seem all the greater because Brexit is so toxic for the NI Executive parties, both as a political topic and as a policy challenge. The temptation to indulge in the blame game (for Brexit or for the Protocol) must be tantalising. But no one planned it this way or would have chosen to be in this position. The sooner the realities of this post-Brexit deal are confronted, the better.
Together, Brexit and the Protocol mean new legal, political and economic conditions for Northern Ireland. The region’s relationship to both Britain and Ireland has fundamentally changed, and this will have all-too-real consequences. In effect, Northern Ireland is both in and between the UK and the EU’s internal markets – as such it is a source of discomfort for both.
We should be under no illusion that the UK can get away with half-hearted implementation of the Protocol. The concessions agreed by the EU for three adaptation periods in 2021 for three specific types of goods were welcome. Gove even felt buoyant enough to reprise his ‘best of both worlds for Northern Ireland’ spiel. But this claim was made in the absence of any promise of future EU flexibility or any plan for what might happen next.
What the post-Brexit deal for Northern Ireland will mean in practice depends ultimately on two things. First, how the UK and the EU decide to manage it and, secondly, the degree to which they can trust each other in exercising their shared responsibility.
The article above was written some time before Christmas Eve, which heralded the good news of the UK-EU Trade and Cooperation Agreement. I say ‘good news’ because, really, the prospect of them being unable to come to any agreement would have been very bad indeed for Northern Ireland, not least for that all-important UK-EU trust. The TCA (as we will get used to calling it) begins with an Article stating: “the Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks that flow from this Agreement and any supplementing agreement.” Unlike any other trade deal, this agreement means that the tasks involved will be about managing further separation rather than closer coordination. Johnson claimed “we never wavered from the goal of restoring national sovereignty” and, although we may debate the good or benefits of such a policy, what this means in practice is reflected in the terms of the Agreement. Being keen to make any remaining ‘ties’ to the EU as few and as minimal as possible, what the UK has negotiated on some economically significant matters is even thinner than that enjoyed by countries as far away as Canada and Japan. As I noted above, every step of distance between the UK and the EU brings particular challenges for Northern Ireland. For example, there is no agreement in the TCA to recognise equivalence for sanitary and phytosanitary (SPS) measures; in simple terms, this means that the EU gets to decide itself whether the food the UK wants to export is up to the EU’s safety standards. This means that, in effect, the TCA does virtually nothing to mitigate the most burdensome checks and controls required on goods entering Northern Ireland (where the EU’s food safety standards still apply) from GB. The greatest impact of this will be experienced after 1 April, when the EU’s rules get stricter and when the three month ‘adaptation period’ for SPS certifications (agreed by the UK-EU Joint Committee for the Protocol on 17 December) comes to an end.
Boris Johnson may be two-thumbs-up pleased with himself. “The deal is done”, and it is one that delivers a Brexit ‘hard’ enough to satisfy his strongest pro-Leave supporters (including those, funnily enough, whom he recently bestowed with peerages). What comes next – let alone what it might mean for ‘United Kingdom (Northern Ireland)’ – is, I suspect, something to be experienced rather than planned for.