The Controversy Surrounding the Northern Ireland Protocol
belfasttelegraph.co.uk
The question of whether Northern Ireland should remain within the United Kingdom, or alternatively conjoin with the Republic of Ireland (thereby facilitating the emergence of a ‘United Ireland’) forms a key part of Northern Ireland’s political debate. Whilst the Good Friday Agreement stipulates that the nation is part the United Kingdom (something which can only be altered if a majority of Northern Irish citizens vote in favour of exiting the Union in a referendum), Unionists are concerned that these constitutional arrangements have been undermined by the Northern Ireland Protocol. The Protocol is a source of controversy for both political leaders and the public and has also exacerbated divisions between the UK and the EU.
The Protocol was introduced in response to Brexit. Prior to Brexit, the entirety of the island of Ireland was governed by EU regulations since both the Republic of Ireland and the United Kingdom were members of the EU. However, the UK’s departure means that, in principle, it is no longer obliged to implement EU regulations and directives; instead, it reserves the right to adopt distinct rules, provided that these do not conflict with commitments enshrined in the Withdrawal Agreement. As such, rules pertaining to food products and medicines may no longer demonstrate the uniformity that they previously did. In order to ensure that goods entering the EU internal market (from the UK) conform with the bloc’s regulations, the EU called for checks and inspections. In most other scenarios, it is likely that these checks would take place on the border between an economic union and third countries. However, if this were to happen in this context, it may result in the imposition of border infrastructure on the island of Ireland, something which would anger Republicans and potentially jeapordise the peace process. To avoid this, the decision was taken to conduct the relevant checks within the United Kingdom itself, namely at Northern Irish ports. Goods which are being transported from Great Britain to Northern Ireland are therefore subject to inspections before they can proceed. Northern Ireland also remains part of the EU single market for goods, alleviating the need for checks at the Irish border. A grace period was initially introduced in order to enable businesses to adjust to these arrangements, something which the UK unilaterally extended. The Protocol, in this respect, is designed to preserve the integrity of the EU single market whilst also avoiding the return of a ‘hard border’.
However, the arrangement has sparked significant frustration amongst unionist politicians. In September 2021, the leaders of four unionist parties condemned the Protocol in a joint declaration, stating that “We, the undersigned unionist political leaders, affirm our opposition to the Northern Ireland Protocol, its mechanisms and structures, and affirm our unalterable position that the Protocol must be rejected and replaced by arrangements which fully respect Northern Ireland’s position as a constituent and integral part of the United Kingdom”. Paul Givan also recently resigned as First Minister. Unionist dissatisfaction stems from the fact that inter-UK checks appear to undermine the existence of frictionless trade between different parts of the United Kingdom. A ‘trade border’ has arguably been created in the Irish sea, which in the eyes of many unionists, damages the UK internal market and by extension the constitutional integrity of the United Kingdom. As Northern Ireland remains in the single market for goods, there are also concerns that its economic arrangements increasingly differ from those adopted in the rest of the UK, undermining Northern Ireland’s position within the Union. It could be argued that these fears have been allayed by certain provisions within the Protocol. In particular, Article 1 stipulates that the Protocol is not designed to alter Northern Ireland’s constitutional status (it should exist without prejudice to the Good Friday Agreement) whilst Article 6 states that all goods emanating from Northern Ireland shall enjoy unfettered access to Great Britain. Pursuant to Article 18, the Northern Ireland Assembly can also decide to withhold consent from the Protocol in December 2024. In this scenario, the UK and the EU would be tasked with negotiating a new, more acceptable arrangement. However, as long as checks are carried out within the United Kingdom, it is very difficult to argue that these worries have been sufficiently alleviated.
The UK government appears to adopt a similar position, accusing the EU of implementing the Protocol in an overly rigid manner. It has requested that all checks and inspections are abolished and has made similar demands in relation to the ECJ’s role in overseeing the operation of the Protocol. Whilst the EU has made some concessions (offering to remove up to 80% of checks on food products), there remains a clear difference of position between the European Commission and the UK. In response, the UK’s chief negotiator Liz Truss has not ruled out invoking Article 16 in order to temporarily suspend the Protocol. This course of action can be unilaterally pursued when the Protocol’s application culminates in “serious economic, societal or environmental difficulties that are liable to persist”. The EU has warned against doing so but has thus far failed to propose a solution which allays UK concerns. As such, the dispute surrounding the Protocol is likely to persist, at least for the foreseeable future.
by Dara Foody