The Northern Ireland Protocol is back in the news again. This time, attempts to address problems with the Protocol are further haemorrhaging confidence in the UK government at home and abroad. The proposal to provide powers to ministers that, if used, would, it is claimed, breach its obligations under an international treaty, has caused uproar. There are a number of problems with the Protocol that have received widespread coverage since its publication in its original form in November 2018; despite the important changes to the Protocol that were negotiated by the Prime Minister, the amended Protocol remains unsatisfactory.
The Protocol’s preamble declares, Article 1, that it is ‘without prejudice to the provisions of the 1998 Agreement regarding the constitutional standing of Northern Ireland…’; it ‘respects the essential state functions and territorial integrity of the United Kingdom’; it ‘sets out arrangements necessary to address the unique circumstances on the island of Ireland, maintain the conditions necessary for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions’.
The problem is that the Protocol does not achieve these aims. The constitutional position of Northern Ireland is changed by the Protocol; the essential state functions of the United Kingdom are not respected, and the Belfast Agreement is not protected: in David Trimble’s words, the Protocol drives a coach and horses through the Agreement.
It was always going to be hard to make the Protocol achieve all these aims, but in truth it was designed to do only two things: secure the EU internal market whilst avoiding a hard border on the island of Ireland. The text that was agreed was a case of might creating right – hardly for the first time and an example of what the UK itself has done in the past. However, as we have discovered across the centuries, such rights rarely last. It is a well established rule that agreements reached when one party is compelled to sign up under intense pressure are unstable and are at high risk of breaking down. The EU held the whip hand in 2018 and got an agreement on its terms, but it always looked unsustainable — and so it still looks today. It remains an example of poor statesmanship.
The UK is committed to the Northern Ireland protocol, despite this. However, in practise, a workable protocol requires arrangements that reflect the wider aims of the Protocol — respect for the UK state’s functions and for the territorial integrity of the United Kingdom as well as the protection of the Belfast Agreement in all its parts.
In January 2019, Theresa May’s government published ‘UK government’s commitments to Northern Ireland and its integral place in the United Kingdom’. This set out unilateral commitments to build on commitments already made in paragraph 50 of the December 2017 Joint report ‘to protect Northern Ireland’s place in, and maintain access for Northern Ireland businesses to, the UK internal market. May’s government saw the protocol as guaranteeing this access but it also recognised ‘the imperative’ for it to be underpinned by UK primary legislation, not least in the event of the backstop coming into operation. This shows the deep roots of the relevant sections of the current Internal Market Bill. So, it is worth recalling the relevant sections of the UK government’s 2019 commitment (paragraphs 35-37):
‘At the heart of preserving the economic and constitutional integrity of the United Kingdom is the maintenance of the UK’s internal market as we leave the European Union. This was reflected in the December 2017 Joint Report between the UK and EU. At paragraph 50 it set out that, in all circumstances, the UK will ensure the same unfettered access for all Northern Ireland businesses to the whole UK internal market. This commitment provided the platform for maintaining the integrity of the UK internal market and ensuring that sales by Northern Ireland businesses to Great Britain, which are so critical for business and the economy, are protected.
‘The Protocol protects Northern Ireland’s position in the UK internal market through a series of safeguards and provisions within the legal text. For goods that are moving from Northern Ireland to Great Britain, the Government has committed to ensuring that Northern Ireland businesses will continue to enjoy the same unfettered access to the whole of the UK’s internal market.
‘The Protocol expressly confirms that nothing provided within it will prevent the UK from ensuring this unfettered access. It is also clear that there will be no tariffs, quotas, or checks on rules of origin between Great Britain and Northern Ireland.
At the same time, we recognise the imperative to underscore that protection domestically as well. And that protection must be robust and lasting. That requires strong protections in law that guarantee unfettered access for Northern Ireland businesses when placing goods on the rest of the UK market. This of course must recognise the devolved competences of the Scottish and Welsh governments and recognise that we need to preserve a level playing field for businesses throughout the UK. But it is critical that the law is unequivocal in setting out that businesses in Northern Ireland would retain full access to the whole UK internal market, even in a backstop scenario. We will enshrine this protection in primary legislation.’
(Bold in the original.)
It was hoped that the consent clause that the Prime Minister negotiated last autumn would provide an added incentive for European Commission co-operation to make the Protocol workable. Rather than work with the UK to address the operational challenges and address the stark contradictions in the protocol, the Commission has treated the Protocol as a test that the UK must pass to be rewarded with a FTA. This has not helped. There are real, practical problems to implementation that require EU engagement and flexibility – we have seen very little of that so far. The Commission is happy to dictate the rules but not prepared to lift a finger to help achieve our shared objectives.
Because the vast majority of Northern Ireland trade is with the rest of the United Kingdom, it is vital to ensure that this trade is fully protected and also, in line with the Protocol’s aims, the UK’s internal market is respected too. The original intention for the protocol was that it would be minimalist — it would require the minimum necessary alignment with EU law in order to avoid a hard border.
The Protocol allows for different treatment for goods deemed ‘not at risk of entering the Single Market’. Goods for sale in retail outlets have been proposed as falling within this status, thereby avoiding a rise in household shopping costs, but not even retail goods have thus far been designated ‘not at risk’ by the Joint Committee.
In failing to designate goods as ‘not at risk’ is the Commission itself not guilty of breaching, by omission, its international obligations under the Protocol? The difference between the UK and the EU is that the UK government is highly accountable: the Commission is not — not by the European Council, the Parliament nor by the Press.
On 11 March 2019 the UK government set out in a unilateral declaration its understanding that if an agreement to supersede the Protocol cannot be concluded, in whole or in part due to a breach of good faith, then it would not be prevented from instigating measures that could lead to the disapplication of obligations under the protocol — but with the proviso that it would uphold its obligations under the Belfast Agreement and in all circumstances avoid a hard border. We are not exactly in new territory. The powers proposed for ministers would allow them to fulfil the aims of the protocol in the event of bad faith by other parties and fulfil their responsibilities under the Belfast Agreement.
Let us hope that this is just a storm in a teacup.
Roderick Crawford was founder editor of Parliamentary Brief. He works in conflict resolution and is a regular commentator on matters relating to the future of UK-EU relations.