Much like Brexit itself, the UK-EU Withdrawal Agreement’s Protocol on Ireland/Northern Ireland remains an on-going point of contention. It has left an indelible mark on politics both within Northern Ireland and in Westminster, and these ripples have extended internationally. The Protocol is much more than merely a part of the UK’s exit deal with the EU – its mere existence incurs a constitutional and political significance for Northern Ireland every bit as much as its content evokes opposing sentiments.
In Northern Ireland, these dynamics are playing out at a time of heightened political sensitivity, not least with the next Assembly election due no later than May 2022. The Protocol goes right to the heart of governance in and of Northern Ireland in presenting a profound point of division that bears the potential to fundamentally alter Northern Ireland’s politics, and perhaps also the very continuation of power-sharing.
Perspectives on the Protocol
Northern Ireland started the Brexit process in a unique position in light of its governance architecture stemming from the Belfast/Good Friday Agreement 1998 (GFA) and its geography in being part of the island of Ireland. This in turn gave rise to the need for a specific post-Brexit framework to be put in place to protect the delicate balance that had been worked towards since 1998.
The Protocol entails that Northern Ireland remains part of the UK’s internal market while also retaining access to the EU’s Single Market. In order to protect the external border of the EU while also preventing a hard border on the island of Ireland, the Protocol provides for checks to be completed on goods arriving into Northern Ireland from Great Britain (GB).
In January 2020, one of the first acts of the newly restored Assembly was a unanimous vote rejecting the Withdrawal Agreement. While the full political spectrum was united in this, the reasons that led to this outcome varied. Since then, party positions towards the Protocol have continued to develop.
The biggest discontent with the Protocol remains within unionism; symbolically and practically, it is contrary to unionist interests in Northern Ireland. This reached the global stage earlier this year, when images of rioting and unrest hit the headlines. It is oversimplistic to paint the Protocol as the sole reason for these scenes, but the issues surrounding the Protocol were presented as a final straw on top of deeper disaffection and dissatisfaction within unionist and loyalist communities that had been present for some time.
In the final week of September 2021, all three unionist parties in the Assembly along with the Progressive Unionist Party (PUP) issued a joint statement in which they reaffirmed a shared commitment to see the Protocol ‘rejected and replaced by arrangements which fully respect Northern Ireland’s position as a constituent and integral part of the United Kingdom.’ This collective ambition has been inclusive of a shared role in the recent legal action regarding the Protocol. Although the broader party strategies for working towards this vary, it is significant that they have come together in this way.
Nationalist parties have received rather less attention with regard to the Protocol. Both Sinn Féin and the Social Democratic and Labour Party (SDLP) have been against the idea of Brexit from the outset, but take the broad view that the Protocol provides for a better scenario for Northern Ireland than would be the case without it currently, with both highlighting the benefits the Protocol can bring. For both, there has been on-going frustration with the UK government in terms of how it has managed its interactions with the EU regarding the Protocol.
With a spectrum of strategies and ideas as to what the next steps should be, a single ‘Northern Ireland position’ on the Protocol does not exist. Limited formal routes to contribute to the governance structures of the Protocol also present a hurdle to perspectives from within Northern Ireland being fed into its operation. It is for this reason that engagement by both the UK government and EU officials with people in Northern Ireland holds such importance.
Institutional stability in Northern Ireland
The potential for the Protocol to undermine political stability in Northern Ireland is something that has been mooted for some time. DUP Leader, Sir Jeffrey Donaldson’s, recent statement that the party would collapse the political institutions should there be no movement on the Protocol is not the first time that such assertions have been made.
While the DUP’s 5-point plan to undermine the Protocol has given rise to some operational disruption (particularly in terms of North-South bodies), the greatest casualty has been clarity. This was recently demonstrated by the current First Minister, Paul Givan, who, when asked a question in the Assembly about continuing attendance of a DUP Junior Minister at meetings of the Protocol’s Specialised Committee, chuckled that the party position on the matter would have to be double-checked.
All things considered, collapsing the power-sharing institutions is not currently seen as a course of action the DUP would realistically pursue – at this point in time at least. There would be little for the party to gain given that elections loom anyway. Collapsing the institutions and triggering an election would amount to an effort to avoid losing voters to the TUV by taking the most hard-line stance on the Protocol possible. Such a strategy is hardly a basis for broad electoral appeal. In short, the longer the DUP has to steady its ship before the next election, the better for the party.
It is perhaps not unexpected that all eyes are on the DUP in this regard – Sinn Féin have shown comparatively little interest in this as an option. However, this could change if it becomes apparent there would be electoral merit in doing so in response to DUP measures aimed at undermining the Protocol.
More generally, there is also little by way of obvious public appetite for institutional collapse, and to be the party to initiate this would not be advantageous, for the DUP any more than Sinn Féin. What is clear, however, is that the Protocol will remain a focal point for all the parties.
In thinking ahead to the next Assembly election, it becomes evident that as the positive aspects of the Protocol’s outworking in Northern Ireland gain attention, the arguments to do away with it in terms of practicalities become harder to form. Symbolically, however, even distinctions from GB that can bring benefits for Northern Ireland are still distinctions. It is difficult to see a way through such concerns for unionists.
Article 18 of the Protocol provides for a democratic consent mechanism entailing a vote being held in the Northern Ireland Assembly in 2024 on the continued application of Articles 5-10, which relate to trade. In short, the choice will be to keep arrangements as they are, or remove Northern Ireland entirely from the EU Single Market. The danger with this in the context of Northern Ireland’s specific situation is that it reduces the issue to the same considerations as the 2016 referendum, where one side points towards Irish unity, and the other towards the UK. There has been little talk of this vote so far, but the potential for it to result in the next Assembly election becoming a proxy vote ahead of 2024, as well as a proxy vote on constitutional intent, remains.
Article 16 provides for the UK or the EU to take unilateral action where the Protocol brings about ‘serious economic, societal or environmental difficulties that are liable to persist’ or ‘diversion of trade’, and for the other party to take appropriate rebalancing measures in response. Rather than a first step, it is intended as a final course of action when all other routes to find resolutions fail. The EU came close to triggering it in February 2021 in relation to the movement of Covid-19 vaccines across the island of Ireland, and the UK has threatened its use on multiple occasions. Unionist political parties in Northern Ireland have also placed pressure on the Prime Minister to employ it, and at the time of writing, there is suggestion that such a move may be imminent. However, the practicalities of taking such a step are much more complex in reality.
The UK’s Command Paper in July this year outlined a case for triggering Article 16, despite ultimately reaching the conclusion that dialogue was the most pragmatic way forward. At a British-Irish Association conference on 4 September 2021, Lord Frost (co-chair of the Joint Committee) stated that problems stemming from the Protocol are arising because it is being fully implemented by the UK, and that it is the construction of the Protocol itself that is problematic. Again, dialogue was highlighted on this occasion as the most pragmatic means to achieving changes, albeit with strong statements remaining around Article 16 as a step the UK would be willing to take.
In short, the reiteration of UK interest in finding solutions to the challenges arising from the Protocol, as opposed to pursuing efforts to seek its removal, places the UK government at odds with unionists in Northern Ireland who want to see the Protocol done away with. There is more for the UK to gain currently from banging the drum of the Protocol to try and leverage concessions from the EU in terms of its operation than there is in taking the Article 16 route. It presents the EU as an adversary rather than a partner (thus maintaining political capital domestically), and it paves the way for any resolutions achieved through the existing mechanisms of the Protocol to be cast as successes. Both obfuscate the reality that the UK negotiated and signed the Protocol into force with one of two mindsets: either the intent to deliver Brexit superseded the need to fully comprehend the deal reached; or the deal was reached with a predetermined intent to dismantle it once it came into force.
Neither scenario paints the UK in a favourable light, and both represent varying levels of disregard for Northern Ireland. The consequences of this have been plain to see within Northern Ireland’s politics.
On a recent visit to Northern Ireland, Maroš Šefčovič (Co-Chair of the EU-UK Joint Committee), heard from a business leader that the Protocol was akin to ‘jam on both sides of the bread.’ In other words, from a business perspective, it places Northern Ireland in an advantageous position in having access to both the UK and EU markets. This runs counter to the narrative of the Protocol that is being presented in some quarters, and highlights that the already complicated political picture surrounding the Protocol is only one aspect of an even more complex situation.
In a press conference at the end of his visit, Šefčovič issued a clear message to the UK that the Protocol was not open for renegotiation, but rather that efforts would be made to find solutions to its problems that kept Northern Ireland and the Belfast/Good Friday Agreement at its core. Key to this would be UK cooperation. Lord Frost responded to this by saying that he was ‘concerned’ that this signalled the EU was not willing to engage in ‘real negotiation’ with the UK in relation to the Protocol. With Article 16 remaining on the table, and the EU set to publish proposals towards overcoming the current situation, it remains to be seen how this will be resolved.
The Protocol on Ireland/Northern Ireland is a complex set of legal arrangements, but the surrounding politics make its operation even more challenging. For those who voted for Brexit, the framework that Northern Ireland now finds itself in compared to the rest of the UK is the antithesis of what was voted for and subsequently promised. For those who voted to remain, it is also an undesirable situation. The Protocol speaks to the fundamental basis of historic division in Northern Ireland and in so doing, renders its emotive responses as falling along similar lines. The confrontation between the law, politics and economics of the Protocol and what it entails for people in Northern Ireland will not be easily navigated; it will remain in the foreground as momentum towards the next Assembly election gathers pace.
Dr Clare Rice is a researcher and writer based in Northern Ireland. She is a former Postdoctoral Research Associate at Newcastle University, and currently teaches at Queen’s University Belfast.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.