Deal or no deal: back to the Northern Ireland Protocol
Rishi Sunak has come back from Munich with hints of an agreement with the EU over the Northern Ireland Protocol; but it's been a hard nut to crack in the past
I know that readers on the mainland, and political observers more widely, instinctively want to roll their eyes or sigh when Northern Ireland works its way back to the top of the news agenda. I get it. It seems always to have been there—though before 1969 you would struggle to find the words ‘Northern Ireland’ in the British media—and it is often too complicated, too impenetrable and requiring too much context to understand. The (perhaps apocryphal) British Airways pilot who says to his passengers as they approach Belfast, “Welcome to Northern Ireland, make sure to set your watch back 300 years”, sums up a strong aspect of the mainland view. I think also some people in Britain are slightly aggrieved that they still have to pay attention: wasn’t this all sorted out in 1998, with the Belfast/Good Friday Agreement (yes, each tradition has a preferred epithet)?
Northern Ireland was always going to be the spanner in the works of Brexit. It has, after all, our only land border with the European Union, one which has for decades been very lightly monitored. It was created in 1921, as a temporary measure, a waypoint along the journey to a lasting constitutional settlement in Ireland, and, like so many temporary measures, has proved resolutely durable. It runs for 310 miles, from Lough Foyle to Carlingford Lough, and there has been free passage of people since 1923. Although some military checkpoints were established during the Troubles, it has never been regarded as much of a frontier, and has been extremely porous.
But the UK’s departure from the EU was always going to create a challenge. The border was now one of the union’s external frontiers, and, given the high degree of frictionless travel inside the EU, represented a vulnerability which had to be addressed. All parties expressed a fervent, rather pious wish to avoid a hard border, claiming that such a thing would strike at the foundations of the sanctified B/GFA, and it was one of three main areas of negotiation in reaching a withdrawal agreement with the EU. The end result was the Protocol on Ireland/Northern Ireland, part of the withdrawal agreement, published in October 2019 and agreed to by Parliament the ratified in January 2020.
The protocol contains 19 articles, and is couched in the flat, windy, exhaustingly bureaucratic language of European negotiation. Its principle, or at least most controversial, provisions preserve a de jure customs border between Northern Ireland and Ireland, but establish a de facto border down the Irish Sea, between Great Britain and Northern Ireland. Because Northern Ireland is now an entry point to the EU Single Market, there has to be scrutiny of goods coming from the mainland, to determine whether Northern Ireland is their final destination or whether they will, or could, move again into the Single Market proper. A joint UK/EU committee is able to rule on the category into which goods fall.
This may seem a pragmatic, logical compromise to a difficult situation, and in some ways it is. In practice, the protocol has not really caused many issues, but the sharp differentiation between the parties involved are much starker in the harsh light of theory. There is an effective internal border, however unofficial and informal, between Great Britain and Northern Ireland, one of the worst nightmares of sharp-eyed Unionists, and the existence of the joint committee could mean, technically, that an EU body possesses what opponents like to call a “veto” over the internal trade of the United Kingdom. It also means that some EU regulation still applies in a sense to Northern Ireland, and therefore that the ultimate court of appeal for any disputes over such regulation remains the European Court of Justice, one of the great bogeys of Eurosceptics over the past decades.
It was for these reasons that the Democratic Unionist Party (DUP), at that time the largest party in Northern Ireland, refused to support the protocol; as a result they collapsed the NI Executive by means of the first minister, Paul Givan, resigning, and after the consequent election for a new assembly, in which Sinn Féin emerged for the first time as the largest party, the DUP has consistently prevented the creation of a new executive by refusing to nominate a candidate for speaker of the Assembly. (Until there is a speaker, it is impossible to conduct the formation of a new executive.) Northern Ireland remains, therefore, governed by the Northern Ireland Office and the province’s 23,000-strong civil service (headed since 2021 by former engineer and venture capitalist Jayne Brady MBE.
Your stance on the protocol will probably depend on how you balance theory and practice. If you lean towards the latter, you may well take the view that the Northern Ireland Protocol is a best-effort solution to a very knotty problem, which has, undoubtedly, caused a greater administrative burden on business, and a disproportionate weight of regulation on small and medium-sized businesses because they often move multiple types of goods on single pallets or in single lorries. These problems have been mitigated by grace periods before the full rigours of the border are implemented, initially by agreement between the EU and the UK but, since last September, unilaterally by the UK. Nevertheless, as far as business is concerned, whatever convoluted arrangements have been agreed under the Protocol remain preferable to a simple hard border. So that is something to cheer for if you are so minded.
If you are wedded to principles, to constitutional theory and the barbed issue of identity, then it is hard to say how you can swallow the Protocol. Whatever the practice, the implementation and the mitigation prove to be, however effective, however convenient, it is difficult—I was argue impossible—to obscure or deny the fact that the Protocol and the Withdrawal Agreement as a whole have put some kind of a border, a barrier, a trade frontier, between Great Britain and Northern Ireland, and that is not just a red flag but at least one of the four horsemen for strict, to-the-letter Unionists. It places Northern Ireland under the jurisdiction, however light-touch, of a foreign institution, the ECJ, the writ of which no longer runs in Great Britain. It is difference, distinction, otherness: and that is the untreatable, remorseless cancer in the very bones of the Union for some. The fear of the DUP and other Unionist parties is that if this “other” status becomes an accepted part of Northern Ireland’s constitutional framework, it will be less difficult for Nationalists and Republicans to introduce another measure which eases the province away from Great Britain—and another, and another, and another. In the dour, stoical and pessimistic eschatology of Unionism, this is how the beginning of the end begins.
Unionists have already tried a legal route to frustrating the Protocol. In 2021, a group of Unionist politicians led by barrister and Traditional Unionist Voice (TUV) leader Jim Allister KC MLA submitted a case to the High Court in Belfast which argued that the Protocol was unlawful because it conflicted with the Belfast/Good Friday Agreement and the Acts of Union 1800 (which abolished the Irish Parliament and created Irish representation in the Westminster Parliament). It seemed to me—I cannot stress enough that I am not a lawyer, though I know my way around constitutional documents—that the strongest ground of their case was the first. This proposed that the Protocol was incompatible with Article VI of the Acts of Union, which formed a customs union between Great Britain and Ireland; the article stipulates that both parts of the new union “be entitled to the same Privileges, and be on the same Footing” as each other in terms of “Encouragements and Bounties on the… Growth, Produce, or Manufacture of either Country” and “Trade and Navigation”. It seems to me difficult to argue that the Protocol preserves those prerogatives and duties.
In any event, the judiciary has not taken the same view as me. The High Court rejected the claim in June 2021, the Court of Appeal did the same in March 2022 and the UK Supreme Court upheld the verdicts of the other courts earlier this month. This lengthy progress at least has the value of certainty: it is now established beyond challenge that the Northern Ireland Protocol is legal and compatible with existing statute and international agreements. The key part of the judgement on Article VI of the Acts of Union was based on the hoary old chestnut of legislative intent. The judges stated:
Parliament, by enacting the 2018 Act and the European Union (Withdrawal Agreement) Act 2020, authorised the making of the protocol. The clear intention of Parliament in enacting these Acts was to permit the Crown to make the protocol.
So there might be technical incompatibility between the various laws and treaties, but they are to be read with the Protocol uppermost in the mind, since it was clearly Parliament’s intention that it should not only be passed but become effective. (This leaves me uneasy, but, as I say, I’m not a lawyer, and sometimes one has to accept that the dogs are barking and the caravan is moving on.)
However, the Unionist parties are no more inclined the accept the Protocol as a result of this process. Sir Jeffrey Donaldson, the leader of the DUP, commented that the challenge “had highlighted why unionists are opposed to the trading arrangements”, which, if nothing else, is an impressively positive spin on the outcome. He added:
A solution to the protocol was never going to be found in the courts, but the cases have served to highlight some of the reasons why unionists have uniformly rejected the protocol.
That is an eccentric view of the purpose of the court system, but it reinforces the position in which the government now finds itself. Unionism opposes the Protocol, and the procedures of the Northern Ireland Assembly mean that the biggest Unionist party, the DUP, can prevent the formation of a devolved government. Yet the government no longer seems entirely content with the way the Protocol works either, which is why Rishi Sunak has been seeking to renegotiate the agreement with the European Union.
Which brings us to the present day. Sunak was in Germany last week for the Munich Security Conference and used the opportunity to talk to the president of the European Commission, Ursula von der Leyen. Downing Street reported a “positive discussion” and “very good progress to find solutions”, but cautioned against excessive optimism by warning that “Intensive work in the coming days is still needed at official and ministerial levels”. It is always entertaining to watch the Number 10 press machine trying to balance an emerging story, giving away enough to push it up the news agenda but making sure that unrealistic expectations are not raised.
The prime minister has continued the tightrope act this weekend: a deal is “by no means done” and there are still “challenges to work through”. Sunak and the Northern Ireland secretary, Chris Heaton-Harris, visited Belfast on Friday to engage with the political parties there on the issue of the Protocol, while the foreign secretary, James Cleverly, travelled to Brussels to meet Maroš Šefčovič, the Commission’s vice-president for inter-institutional relations. Nevertheless, the idea has been allowed to circulate that there will be movement this week, perhaps on Monday or Tuesday, and that a vote in Parliament on a revised agreement may well be held, perhaps on Wednesday.
What is likely to happen? Even the DUP admits that there has been progress and that we are approaching a “big moment” in trying to resolve the political stand-off. Northern Ireland politicians, understandably, are happy in the spotlight of national and international media (even if some of them do not look it), as it indicates that their concerns are being taken seriously; and it would be difficult to argue that Westminster has always acted that way towards the province. Donaldson has emphasised how important a potential deal is for the future of Northern Ireland. The outcome will either “consign Northern Ireland to more division” or begin to move “towards healing and the restoration” of the political institutions at Stormont. No pressure, then.
The solution, or at least proposed solution, which most observers expect is a refinement of the Protocol which creates red and green lanes for goods entering Northern Ireland from Great Britain, with those destined only for the province going through the green, or “express”, lane and being subject to minimal checks and delays, while goods which will go onwards to the European Union will go through the red lane. This idea has been boosted by an agreement in January between the UK and the EU on data-sharing which would provide both parties with access to real-time data on goods, thereby allowing greater granularity on the destination of goods and so the necessary levels of scrutiny.
The heart of the EU’s position is the concern to protect the integrity of the Single Market. That is why data are so vital; but it is also why the EU has continued to make the jurisdiction of the ECJ a red line. Any negotiated deal will have to incorporate this fact, but it may be that other forms of supervision are emphasised, perhaps at a lower level, to downplay the ongoing jurisdiction of the European court.
The other consideration, as if this affair were not already tortured enough, is the Northern Ireland Protocol Bill. This proposed legislation was introduced into the House of Commons last June by the then-foreign secretary, Liz Truss (remember her?), and taken through all its stages by 20 July before being sent to the House of Lords. It was given a second reading in the Lords in October 2022 and had its first day of consideration in committee on 25 October. Then it was paused by the incoming prime minister, Rishi Sunak. In essence, the bill would allow Parliament to amend the Northern Ireland Protocol through domestic law and further give ministers delegated powers to allow them to vary details of the Protocol. This could all be done—in theory—without reference to the European Union and would represent unilateral amendment, or repudiation, if one wants to take that perspective, of an international agreement. The controversy over the bill led to Sunak’s pausing of its parliamentary journey while negotiations were pursued with Brussels.
All of this leads to the question of whether a renegotiated protocol will be acceptable to the parties in Northern Ireland. If it is not, after all, then this has been a wholly pointless exercise, as the DUP will continue to veto the formation of an executive by refusing to participate in the election of a speaker of the Northern Ireland Assembly. In 2021, the DUP set out seven tests by which they said they would judge any kind of revised protocol, and warned that any new structure would have to satisfy all the tests. They were, however, firmly insistent that this was not a sectarian veto. “These tests are grounded not in a unionist wish list, but in promises that have already been made in one form or another, to the people of Northern Ireland.”
This weekend was marked by an intervention from the former prime minister Boris Johnson. The usually policy-lite Member for Uxbridge and South Ruislip (rumours persist he will seek a safer berth despite affirming his candidacy) let it be known that “his general thinking is that it would be a great mistake to drop the Northern Ireland Protocol Bill”. Fanning these incipient flames, a Brexiteer MP added that if Johnson thought Sunak were “somehow trying to ‘Get Brexit Undone’”, this would “up the ante considerably”. Former cabinet minister David Jones, now deputy chairman of the European Research Group, was more emphatic still on the issue of the European Court of Justice.
If we still have a foreign government governing part of our country, we still have a foreign court with jurisdiction, then an awful lot of us would find it very hard to support it.
The intervention of the ERG is significant. Although it is now a venerable organisation, founded by the late Lord Spicer in 1993 as a Eurosceptic organisation opposed to the Treaty of Maastricht, it only began to wield powerful and public influence when it was relaunched after the 2016 referendum on Brexit under the chairmanship of Steve Baker (now, irony of ironies, minister of state for Northern Ireland). It positioned itself as a campaign group for a so-called “hard” Brexit and was instrumental in the fall of Theresa May in 2019. Sebastian Payne, writing in The Financial Times, described it as “the most influential [research group] in recent political history”, and while its membership is reported to have declined since the autumn of 2022, it retains a totemic significance and a pull among Conservative MPs beyond its core numbers.
Sir James Duddridge, Johnson’s former parliamentary private secretary and one of the last ministers at the Department for Exiting the European Union, spelled out the dangers for the government.
The PM would be unwise to put his own neck on the chopping block. It won’t just be 28 ‘spartans’ voting against this, it will be a large number of Brexiteers, plus a number who don’t see him as the future, plus a number who perhaps were pro-Remain but think Brexit needs to be delivered. It’s not a small minority, it is getting into the majority of the parliamentary party, certainly into treble figures.
It is difficult to know quite how seriously to take this (slightly camp) menace from the ERG and its acolytes. If Sunak has reached an agreement with the EU which significantly eases the passage of most goods from Great Britain into Northern Ireland, but retains, in print of whatever small size, the jurisdiction of the ECJ, to vote against the implementation of such a deal would push the government into a profound crisis, one from which it might not recover. The rejection of a government measure, not only by the House of Commons but largely on the strength of Conservative votes, would be a grave challenge to the prime minister’s authority, and would have to be followed by a vote of confidence. That places us in territory which is always unpredictable.
The ERG do not have unfettered freedom, however. They must be cognisant of the reaction of the DUP and the other Unionist parties; if they accept a new deal on the Protocol, it would be very difficult for the ERG then to reject the measure and make themselves somehow plus royaliste que le roi. This puts the DUP in a powerful position, if they can manipulate it with skill. That ability is not wholly born out by their track record. But the memory of the confidence and supply deal the party negotiated with Theresa May’s minority government in 2017 is still relatively fresh: although the DUP’s leadership has changed since then, that instinct to extract advantage still exists. It is possible to imagine a scenario in which the DUP’s judgement on a new deal becomes the fulcrum of wider reaction, casting Donaldson as the Union’s man from Del Monte. Will he say yes?
The European Commission has warned ambassadors to be on stand-by this coming week. Events can unfold very quickly, they have been warned, and decisions could be made and implemented in hours rather than days. The UK government must prepare for the nimblest of footwork and it is to be hoped that they have rolled the pitch for whatever emerges this week in terms of consultation with the parties in Northern Ireland, its own backbenchers, the opposition (so far as is possible) and its negotiating partners in Europe. Sir Jeffrey Donaldson may have couched it in dire and apocalyptic terms, but he had a point: this could be a substantial leap forward in normalising our post-Brexit relationship with the EU, or it could be another icy blast across the frozen political landscape of Northern Ireland. Be ready for the news to come at us all fast.