What is going on with the new Northern Ireland protocol?

For the previous instalment in this series, please click here. 

The Northern Ireland Protocol

The new Northern Ireland (NI) Protocol was the key to unlocking the Johnson Withdrawal Agreement. The key political gain for Johnson was the scrapping of the infamous “backstop” which had been at the core of Theresa May’s difficulties in persuading Conservative MPs to support her Withdrawal Agreement. But with the ‘backstop’ scrapped, a new means of preventing the reintroduction of a hard border in Ireland had to be found.

The May “backstop” had provided for the whole of the United Kingdom to remain temporarily members of the EU Customs Union, thereby avoiding the immediate need to institute a new customs border between UK territory and the Republic of Ireland. It also had the effect, greatly to the joy of businesses such as the car manufacturers, of putting off the prospect of a new customs and regulatory border between the UK and the Continent by requiring the whole of the UK to abide by what was euphemistically described as a “common rule book” for trade in goods (in effect, EU single market rules).

The May backstop was conceived as temporary until such a point as “alternative arrangements” were in place to avoid the need for a hard border between Northern Ireland and the Republic. Much effort was made to envisage what these alternative arrangements might be, but the European Commission dismissed all suggestions as technological solutions of an unspecified and not currently viable nature. The temporary nature of the May backstop suited the EU negotiators as much as the UK, because its terms drove a ‘coach and horses’ through the EU doctrine of the ‘indivisibility of the four freedoms’. Trade in goods and services were to be treated separately. Freedom of movement of people was separated from freedom of movement of goods and capital. This flexibility on the part of the EU was never properly recognised in the UK, basically because of the mounting pressure on Mrs May from Brexiteers who wanted nothing short of a so-called ‘clean break’.

Moreover, the EU consistently refused – both the Commission and the member states – to put a firm end date on the May ‘temporary’ backstop, despite attempts at assurance in letters to Theresa May from the Presidents of the European Commission and European Council. The fact that this issue could not be fudged was made crystal clear in the advice Attorney General Geoffrey Cox gave to the Cabinet. Member States displayed an impressive unity of purpose in defence of the Republic’s insistence on no risk of the return of a hard border in Ireland. In this, the EU stood firmly behind one of its founding principles, namely “the equality of member states”, at which the British always tended to sneer. In Ireland’s case, the principle was vindicated that member states, however small, can count on their partners to help defend their vital national interests. This came as a shock to Brexiteers who had always assumed that EU solidarity would break apart as larger countries on the Continent began to count the cost of ‘no deal’ for their favourable trade balance in UK markets. The Brexiteers were caught out again in imagining that what held the EU together was nothing more than a crude economic calculus.

As the Northern Irish debate dragged on unproductively, in the eyes of hard-line Brexiteers, the “backstop” came to be seen as reducing the United Kingdom to the status of a “vassal state” for an indeterminate period. Throughout this time, the UK would be forced to accept new EU laws without having any decision-making power over them. Vassalage could only be ended by specific EU assent that some “alternative arrangements” could be made to work. No trust existed that this point would ever be reached. The Brexiteers were right in terms of the backstop’s legal effects: the question was whether the backstop was a price worth paying for maintaining peace in Ireland and for preserving the unity of the United Kingdom, while at the same time facilitating in what would undoubtedly become an extended interim period, a ‘softer’ form of Brexit. Mrs May lacked the political skills to win that argument in the Conservative party. She then left the decision to seek a cross party agreement in support of her deal until far too late, when the Brexiteers had already resolved to bring her down.

Boris Johnson’s success in ditching the May backstop depended on his willingness to make a different set of bold, but what may prove to be just as difficult, choices. The essence of the Johnson Protocol is to separate the post Brexit regulatory treatment of Northern Ireland from Great Britain. Northern Ireland ‘de facto’ remains in the EU single market and customs union. As such, on many questions of trade and regulation, Northern Ireland will become indefinitely subject to EU jurisdiction, without, of course, having any direct say over those laws, while it stays a constituent part of the United Kingdom. In broad terms this was roughly the same proposition that the Commission had put forward eighteen months before in the draft Withdrawal Treaty that they published in the spring of 2018; Mrs May had promptly rejected this proposal out of hand as impossible for any British Prime Minister to accept.

An obvious issue with the Johnson backstop is that it gives a tremendous impetus to the case for Irish unity. Unionists were bound in principle to be at best sceptical, even though some members of the Northern Irish business community could see the practical benefits and the potential advantages of having the best of both worlds by remaining ‘de facto’ in both the UK and the EU. Yet, Northern Irish Protestant community politicians, who define their political lives by stubborn defence of the Westminster Union, inevitably took umbrage at what to them seems a significant step towards a United Ireland. In their eyes, the Protocol had been imposed without any proper consultation, and altered, in a fundamentally unwelcome way, the constitutional status of Northern Ireland. This approach stands in stark contradiction to the spirit of the 1998 Good Friday Agreement that no such fundamental changes in Northern Ireland’s status could be agreed without the assent of the representatives of both Northern Irish communities. The mechanism for “democratic” consent that the UK government instituted was denounced as feeble; Northern Ireland could only escape from the Protocol by means of a cross community consensus at Stormont that was never likely to be attained. How could a Conservative and Unionist Prime Minister have done this?

The answer seems to be that the Prime Minister has had difficulty in facing up to the reality of what he has committed himself to. Yet Boris Johnson must have been aware of the basics of the proposition that he had personally agreed in conversations with Leo Varadkar and Jean Claude Juncker. He had signed the Withdrawal Treaty on that basis. In the Treaty text, the European Commission tried their best to sugar the pill. Northern Ireland would constitutionally remain part of the UK customs territory. HMRC, not EU officials, would be responsible for administering the necessary controls. The Preamble to the Protocol loftily proclaimed the “Union’s and United Kingdom’s shared aim of avoiding controls at the ports and airports of Northern Ireland”.  It went on to declare that “Nothing in this Protocol prevents the United Kingdom from ensuring unfettered (my emphasis) market access for goods moving from Northern Ireland to the rest of the United Kingdom”.

These aspirations were however explicitly conditional. The first bold statement is qualified by the words “to the extent possible in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof”. The second talks only of the movement of goods from Northern Ireland to Great Britain, not in the reverse direction. It also significantly used the word “unfettered”, not the Theresa May language of “frictionless”: a classic example of how a subtle change in a single word in a diplomatic agreement can point to differences of huge consequence. What is a “fetter” is a far more debatable and ambiguous concept than a total absence of “friction”. In an appearance before the Lords EU Select Committee on October 21^st, just before the dissolution, the then Brexit Secretary, Stephen Barclay, confirmed under questioning from Stewart Wood[1] that the Protocol would require two-way checks on goods passing between Great Britain and Northern Ireland.

In terms of the short-term politics, Johnson got away with his bold stroke. The Withdrawal Agreement was never put to full Parliamentary scrutiny in advance of the general election the Prime Minister was determined to call. Armed with an Agreement, any agreement, he gambled correctly on going to the country with a cry of “get Brexit done”. In a campaign speech to a group of Northern Ireland businesspeople, Johnson appeared to dismiss the prospect of customs controls across the Irish Sea as something he would never tolerate as Prime Minister. Michael Gove in a later interview refused to confirm what Steve Barclay had said before the Select Committee and pushed the question aside as a matter for the future and the Special Joint Committee set up under the terms of the Protocol to supervise the implementation of its provisions. However, the remit of this Joint Committee is to implement the provisions of the Protocol, not to change its terms.

Treaty provisions cannot be so easily dismissed. In the Lords debate on March 16^th, John Kerr pointed out “the government still seem in denial” of what they had agreed. He spelt out the provisions of the Protocol in plain terms:

• Article 5 obliges the British government to collect on the EU’s behalf, EU customs duties on goods moving from Great Britain to Northern Ireland, except for categories of good where the EU and UK jointly agree there is no risk of them then moving to the Republic.
• Article 6 spells out how the EU Customs Code will apply to Northern Ireland and hence EU export checks on goods moving from Northern Ireland to Great Britain.
• Article 12 gives the EU the right to monitor and supervise UK administration of the Protocol under the ultimate jurisdiction of the European Court of Justice.
• 75 pages of an Annex to the Protocol list EU laws that will apply in Northern Ireland and not in Great Britain, under ECJ jurisdiction.

Kerr had recently been on a visit to Belfast with the Select Committee. What worried him more than Ministers’ apparent ignorance of the legal texts in the agreement they had signed, was the fact that they found “no evidence of any central or devolved government action to implement the Protocol….no one from HMRC had of February 25^th given the business community any indication of what to expect or how best to prepare”.  Some 2500 trucks a day cross the Irish Sea to and from Northern Ireland, 850,000 movements a year.  If experience at the Polish-Ukrainian border is taken as the model, each lorry would have to satisfy 45 different checks on entering the EU customs union, while outgoing vehicles would have to undergo 31. “The government in Dublin is well aware we are dragging our feet, so too is the Commission”. Given that the Protocol is due to be implemented from January 1^st, 2021, Kerr found this situation “acutely disturbing – indeed shocking”.

A successfully concluded Free Trade Agreement between the EU and UK would in some respects reduce the scale of the necessary checks, but it would not avoid them altogether. For the EU, the integrity of its customs border would be put at risk, if the UK government sought to renege on its commitments under the Protocol. On what for the EU is an almost existential question, the integrity of its single market, it would destroy any remaining trust. Much more may well be heard of this ‘misunderstanding’ in the coming months, as in Brussels there is a belief that the British government is set on radical changes to the Protocol they signed only last October. The consequences for the whole UK-EU relationship could be catastrophic – and there is so little time. Without an extension of the transition deadline, the new arrangements are due to come into force on January 1^st, 2021.    

[1] Lord Wood of Anfield. Fellow of Magdalen College Oxford and former adviser to Gordon Brown and Ed Miliband.