Today, Foreign Secretary Liz Truss made a statement to Parliament outlining legislation that would give the Government the power to override the Northern Ireland Protocol. While this will land badly in Brussels, it is right for the Government to act if the European Union does not agree to a serious negotiation.
The original intention of the Protocol, as described in its preamble, is to affirm and protect the Belfast / Good Friday Agreement of 1998. However, without fundamental reform, it is the Protocol itself that is a major roadblock to the reestablishment of the power-sharing institutions that are the cornerstone of the peace process.
When the EU signed up to the Protocol, they de facto (although not officially) became coguarantors of the Belfast Agreement. How they approached its implementation would determine whether we could maintain the delicate balance between north-south and eastwest relations so essential to its success.
In January 2020, I wrote a piece for Challenges NI in support of the Withdrawal Agreement and a light-touch implementation of the Protocol. I said at the time that negotiations on the next stage of the Brexit process were vitally important in determining how the Protocol would operate in practice and urged the then newly-establish Executive to be a ‘powerful voice for protecting east-west trade.’
My hope was that the Protocol could be operated in a flexible way and pragmatically amended as envisaged in Article 13(8). However, the EU’s singular focus on protecting their Single Market and the calls from local parties during the negotiations for the ‘rigorous implementation’ of the Protocol have prevented such a settlement from being realised.
This is not to say that the Government is blameless. From the 2017 Joint Report onwards, the Government accepted a one-sided interpretation of the Belfast Agreement: that it prevented a border on the island of Ireland but allowed one down the Irish Sea. This was always an odd interpretation when the Belfast Agreement explicitly reaffirms an international border on the island, unless and until there is a majority in both jurisdictions to change it.
Nevertheless, the general refrain of ‘well you signed it’ to any suggestion by the Government of changes to the Protocol does not hold water. There are certain provisions of the Protocol, such as the arrangements for medicines, that should never have been agreed, but other aspects made sense to agree at the time and then amend at a future date.
For example, the Protocol was signed before the agreement of comprehensive subsidy control measures in the UK-EU Trade and Cooperation Agreement. It also proceeded the dispute resolution framework agreed in the TCA as an alternative to the jurisdiction of the European Court of Justice. A flexible implementation of the Protocol would have taken these subsequent agreements and applied their provisions to Northern Ireland, not just Great Britain, as a means of addressing unionists’ constitutional concerns.
The DUP are understandably receiving a lot of criticism for their refusal to establish an Executive until the Protocol is addressed. However, if the same level of checks and controls that now exist down the Irish Sea were applied to the border with the Republic, Sinn Féin would undoubtedly have taken a similar course of action. Even so much as a CCTV camera on the border was viewed as an anathema by nationalists during the Brexit negotiations.
We can get to a situation where the practical and constitutional concerns of people in Northern Ireland are addressed and find more flexible, and ultimately more durable, arrangements that command support from all sections of the community. This means continuing to protect the integrity of the EU’s Single Market, but also fully respecting Northern Ireland’s place in the UK’s customs territory and internal market.
Trade can be differentiated by making it the responsibility of the trader to declare the final destination of their goods, with steep penalties for any trader found to have misled the authorities. This proposal was included in the UK’s Command Paper published in July last year, but the EU’s negotiating mandate has prevented it from ever being discussed.
The plans set out today do not abolish the Protocol. There will always be a UK-EU Treaty relationship to manage our unique circumstances. However, if the EU are not even willing to entertain discussions on sensible reforms that work within the spirit of the Protocol, then the Government will have to take unilateral action.
It is the UK Government that is ultimately the sovereign government of Northern Ireland. You can find no higher authority to confirm that than the Belfast Agreement.
Ryan Hoey is a Politics Graduate of Queen’s University Belfast. He campaigned for Leave in the EU referendum and stood as a Conservative candidate in the 2018 Local Elections in England.