A sensible compromise is required to make the Northern Ireland Protocol (NIP) work, and the UK should not be afraid to exert its legal rights to achieve that. The NIP provides a process for changes in its operation to be made unilaterally by either the UK or the EU in appropriate circumstances. The recent bill published by UK GOV empowers ministers to make limited unilateral changes, some if not all of which might accord with that process. If proposed changes do not, there is a greater risk that the UK will break the NIP, which is not a particularly desirable result.
WHAT IS THE NORTHERN IRELAND PROTOCOL?
The NIP is an important element of the overall Brexit arrangements with the EU but it is not working to the satisfaction of all interested parties. Its origins and its future are inexorably linked to the Good Friday Agreement (GFA) which ended conflict in Northern Ireland (NI). In turn the GFA has been and continues to be touted as sacrosanct and immutable: the narrative runs that to disrupt the GFA risks somebody (presumably people inclined to use terror to exert their will) reopening the violence over the unification or not of Northern and Southern Ireland. It is perhaps unwise to take that view of any established agreement or institution, as the world is dynamic, and things need to adapt as the world changes. It is certainly unwise to allow terror threats to influence policy. But the whole Irish problem is complex and deeply embedded and peace under the GFA was a long painful time in the making.
The NIP is also there because the EU naturally requires the single market to be protected. No party wants to create a new border between Northern Ireland and the Republic, even though such a border, even if very light touch, is the obvious implication of Brexit. In addition, the NIP sits alongside the Withdrawal Agreement and the EU-UK Trade and Cooperation Agreement entered into by the EU and UK (TCA) as part of Brexit and is inconsistent with the TCA in various ways.
In a nutshell, despite Brexit, under the NIP, NI for trade purposes remains in the EU, and trade between it and the Republic of Ireland is subject to EU regulation and so without customs barriers as to goods produced in Northern Ireland. Whereas the rest of the UK (Restuk) is outside the EU and there are custom controls between them. The NIP effectively puts the UK border with the EU on the coast of NI for goods entering NI from Restuk, creating a border inside the UK as a whole, which sits uncomfortably in a single United Kingdom. The NIP makes those imports subject to EU regulation and border checks, even if the goods concerned are not intended to go beyond NI and into the EU. This is particularly sensitive when it comes to food from Restuk to be sold in NI. Issues arising under the NIP are also decided by the European Court of Justice. The NIP also allows some EU control over UK subsidies if they impact the NI market.
The NIP evidently puts NI and its citizens and legal status in a different position to Restuk.
HOW IS THE NIP UNSATISFACTORY?
The first contentious issue is the way in which the NIP is being implemented in practice in the application of border checks and paperwork regulation for imports from Restuk into NI. It is notable that the NIP itself includes a commitment to restrict controls at the ports and airports of NI to the extent possible. Perhaps implementation of that requires reasonableness and goodwill and trust on both sides, as indeed do all the Brexit withdrawal arrangements in reality. Perhaps that is what has been lacking. Indeed, the UK alleges that the EU is applying an excessively tough attitude to imports from Restuk to NI: this is evidenced by statistics that almost 20% of all bureaucratic checks conducted by EU customs across the whole EU are connected with the Irish border, while relevant trade represents less than 1% of EU trade. That arguably means an approach to the NIP relevant trade which is 20 times more stringent than the EU applies elsewhere. The UK argues this attitude is disproportionate and unnecessary and has reduced imports from Restuk to NI to a trickle. Has this EU approach been adopted to punish the UK for Brexit? Those in NI who wish to see the NIP changed argue it makes NI citizens second class in the UK.
The EU on the other hand argues that the NIP was agreed by the parties, that the EU is entitled to police the agreement in exercise of their rights, and that they are behaving reasonably. Would it perhaps be possible to minimise bureaucracy and disruption using technology? Some say yes, but that has not so far been adopted as a way forward.
Second, the Northern Ireland constitution, as contemplated by the GFA, requires power sharing in the NI Government between Republican leaning parties and Unionist leaning parties. The DUP, the leading NI Unionist party, considers that the NIP means that NI and its citizens do not have equal rights with citizens of the Restuk, and such equality is required under the Union. The DUP is refusing to enter power sharing unless the NIP is changed to its satisfaction. So, the duly elected government of NI cannot assemble and govern. That government cannot function is surely a serious societal issue at least.
The EU argues that the NIP protects the GFA, while others argue that it is the NIP which puts the GFA at risk. Is it not the case perhaps that the GFA is being used, or abused, as a political tool around Brexit negotiation? It is rare in the EU that the interests particularly of minor nations like the Irish Republic dictate EU policy, and a cynic may say that the EU used the emotive issue of the GFA tactically throughout Brexit negotiations and that the UK early on capitulated in this respect mistakenly.
WHAT CAN BE DONE?
Is it reasonable to say that any agreement which in practice does not meet the objectives of the parties is doomed to ultimate failure, ditching or renegotiation? During talks, both sides assert their reasonableness, yet sufficient common ground is still lacking. In seeking to change the agreement, the UK’s bargaining strength is weaker than the EU’s, just as was the case in the Brexit negotiations. It is also widely accepted that the EU, acting through the Brussels Commission, rarely gives much ground in negotiation until the eleventh hour and only when threatened with an adverse outcome. The EU declares the UK must abide by what it signed. The UK alleges bad faith by the EU in operating the NIP and that matters cannot continue as they are as the consequences are too great, including damaging the GFA.
Adversaries of the UK Government say that to unilaterally discard the NIP would be contrary to international law and would damage the UK’s reputation as an advocate of law-based systems and a law-abiding nation. If the UK wantonly breaks the NIP, who would ever trust it again? Perhaps this self-righteous argument is a bit overplayed as treaties are broken often and most nations are nothing if not pragmatic. Sad to say, but hypocrisy or pragmatism runs roughshod over purity constantly in global dealings – otherwise the upstanding EU, UK and USA would surely have no dealings with say China?
But the biggest point is that the NIP has a built-in procedure for one party to unilaterally alter the operation of the agreement, through its Article 16. It is this very right which the EU Commission invoked during the pandemic only to withdraw their invocation quickly afterwards. They clearly recognise it and their wanton use of it betrayed their real approach to the GFA.
The UK is not proposing to discard or tear up the NIP as some opposing the UK, and some news coverage and commentators suggest: those very suggestions are misleading, done solely to denigrate those trying to solve the problems of the NIP. Article 16 deliberately provides safeguarding measures, which are normal in trade treaties to protect parties from undue harmful effects. The UK is specifically entitled to unilaterally suspend the operation of the NIP if its continued application leads to “serious societal, economic or environmental difficulties that are liable to persist or to diversion of trade”. Very arguably the NIP, or its application, is having such an effect or risks doing so. The power to take safeguarding measures is limited: they must be “appropriate”, restricted in “scope and duration” and limited to what is “strictly necessary” to remedy the situation. If the UK Government gets advice that the circumstances are such that it can invoke this power and it limits its proposals appropriately, it surely is entitled to do so. This should not be acting in breach of the NIP or any law and it would most likely be disinformation to say it is.
Of course, so doing risks the EU being upset and adverse consequences. Indeed, the EU threatens severe retaliation. Some talk of it even withdrawing from the Brexit arrangements, and a trade war, which would be so damaging on all sides, the more so given the economic crisis in the world and Putin’s evil war and global blackmail. Would such actions by the EU be proportionate and sensible as a response? If the UK exercise of its rights under the NIP is justifiable, then the NIP itself probably would make such an EU response illegal, a breach of international law by the EU. This is because Article 16 limits a response by the EU to “proportionate rebalancing measures” as are “strictly necessary” to remedy the imbalance. Interpreting the application of this Article allows plenty of room for lawyers to disagree!
As they stand, apparently the UK potential proposals for change unilaterally, set out in the recent Bill, include simplified border checks with a green lane for goods from Restuk to NI where no customs paperwork is needed, and a red lane for EU destined goods where the EU can impose customs checks and paperwork. The UK would also like the European Court of Justice “ECJ” not to be the ultimate dispute resolution arbiter under the NIP, but for disputes under the NIP to be settled by independent arbitration, which the EU has agreed to in the much wider TCA. For the ECJ to rule on matters where the EU is in dispute with third parties is like the Supporters’ club of a football team being a referee at the match. Are these ideas so adverse to the EU? They certainly require no damage to the GFA.
As to those who characterise the UK as a rogue international lawbreaker for considering such things under Article 16, is such characterisation fair or driven by other motives? One might expect more UK defenders, at least from citizens of the UK, when in dispute with the EU. It is worth noting that even Tony Blair, a sponsor of the GFA, has publicly stated that the EU needs to modify its approach and, unless it does, the GFA will be damaged.
It is to be hoped that the mere possibility of use of Article 16 and the potential changes empowered in the Bill will be enough to initiate compromise. It is incumbent on the UK, Northern Ireland and the EU to find a sensible approach through reasonable good faith negotiation. But that was what they agreed they would do for the withdrawal of the UK from the EU, and fine words so often were unmatched by action. Dealing with Putin’s invasion and destruction of Ukraine is a considerably more important issue than the NIP, and it requires unwavering unity of purpose of the EU and UK as well as the USA. That is another factor perhaps to push the parties to settle differences on the NIP and focus on the global mega issues, rather than the somewhat local issue of the Northern Ireland Protocol, of minimal consequence in terms of the more existential matters confronting the world.
