The Northern Ireland protocol is a problem and it is back with a vengeance. As Taoiseach Micheál Martin, a man who is extremely careful with his words, put it, the British government’s new bill to unilaterally scrap large parts of an agreement agreed with the EU two and a half years ago marks a “historic low point, signalling a disregard for essential principles of laws which are the foundation of international relations.” The DUP’s fanatical opposition to it, and boycott of the institutions until it is radically overhauled (if not scrapped), mean that the power-sharing politics which is fundamental to any half-decent functioning of Northern Ireland is suspended.
However, on the other hand it is not enough any more to say, as Sinn Fein leader Mary-Lou McDonald does, that all that needs to happen is “smoothing out its application.” Officials in Brussels admit privately that it is a flawed agreement and needs to be changed. Last October the EU moved unilaterally to scrap much of the Irish Sea ‘border’ for medicines, belatedly realising that it would be a PR catastrophe if Northern Irish people died for lack of access to drugs freely available in Britain.
Now it is pondering proposals to soften the Irish Sea ‘border’ for goods containing plant or animal material. The barriers to such goods entering Northern Ireland sometimes border on the absurd. The excellent Irish Times reporter Simon Carswell last month quoted a Lisburn-based wholesaler of food products complaining that an English supplier of beef-flavoured crisps had recently refused to send him a consignment of 28 boxes on the grounds that he would have to pay a vet to certify them because the beef flavouring was an an ingredient of animal origin. The crisps were intended for the Northern Irish market only.1
Until now most people in the North have only seen modest changes in their access to goods from Britain and some British online retailers refusing to sell to Northern Ireland. This is partly because the protocol has never been properly implemented. The British government put in place unilateral “grace periods” — effectively phasing in the Irish Sea ‘border’ — which have become semi-permanent. Other changes, such as banning plants with British soil entering the North, were reversed after a few months.
Last month the Belfast Telegraph‘s political editor, Sam McBride (another fine journalist), quoted a senior industry figure who moves millions of pounds of goods between Great Britain and Northern Ireland saying: “If you remove the unilateral action [the grace periods], we’re bust”, and added that if the protocol had been fully implemented on day one, “there would have been no day two”.2
One of the Protocol’s central problems is that it involves EU rules mostly written for containers or entire ships coming from China or Brazil. In those scenarios of goods travelling across the globe, such rules are there for good reason. But they are inoperable when applied to a tiny regional economy buying goods from the rest of its own country.
The EU had imposed 4,000 new laws on Northern Ireland in the past 18 months, the British government claimed as it unveiled its new bill. In a briefing note it said this “continues to undermine political stability, with a fundamental sense of unfairness and feeling of separation from the rest of the UK in Northern Ireland.”
So things need to change, but the British government’s radical and reckless legislation is not the way to do it. This bill gives ministers powers in domestic law to unilaterally override the Brexit treaty with the EU in four main areas: setting up a check-free ‘green lane’ for British goods destined for the North; ending the role of the European Court of Justice in enforcing the protocol; removing EU control over state aid and VAT in the region; and creating a dual regulatory regime, giving businesses a choice of whether to place goods on the NI market under British or EU rules. In addition, it gives ministers sweeping powers to rip up other parts of the protocol if they believe societal or economic damage is bring caused.
From an Irish viewpoint, it looks suspiciously as though Boris Johnson is pandering to the hard-line Brexiteers of the European Research Group in order to keep them on board as he struggles to maintain control of the Conservative Party, 40% of whose MPs have expressed no confidence in his leadership. This weakness will seriously undermine the British position in the negotiations which must eventually resume in order to amend the protocol. As Irish Times London Editor Denis Staunton points out, the EU now has no incentive to soften its position in these negotiations: “The European Commission and the member states know that Johnson’s domestic position is too weak to allow him to make the necessary compromises, so they will not squander concessions on what they see as a regime in its dying days.”3
Within Northern Ireland, Johnson hopes that by legislating to rewrite the protocol he can persuade the DUP to rejoin the power-sharing Executive. But as the Financial Times’ political editor George Parker writes: “The problem is that the DUP does not trust Johnson – the prime minister double-crossed Unionists when he signed up to the original protocol. It is waiting to see if Johnson delivers the legislation.”4
Even from a British standpoint, the legislation looks doomed to failure. In an editorial on the day after its publication, that pillar of Conservative Britain, the Times, opined that “at best the government’s actions set the stage for years of acrimonious legal disputes, at worst they risk a ruinous trade war. Far better even now that both sides return to the negotiating table and reach an agreed solution.”5
The editorial says some very sensible things. It warns: “The prime minister is seeking powers that would allow ministers to repudiate a deal that the government not only agreed with the European Union, supposedly in good faith, but then presented to the British public in a general election as a ‘great deal’ that was ‘oven ready’ and would ‘get Brexit done’…at the very least, the government’s moves risk damaging Britain’s reputation internationally while creating fresh uncertainty for business at a time of unprecedented economic challenges.”
It points out that many Northern Ireland businesses are benefitting from the opportunities provided by the protocol in terms of dual access to the EU and British markets, as reflected in NI’s current status as the UK’s second best performing region after London.
It suggests (and I strongly agree) that some variation on the British government’s plan for a green and red lane approach for checks on goods destined for the Northern Ireland market and those to be exported to the Republic (and thus the EU) “could form the basis of a solution.” It dismisses Johnson and Foreign Secretary Liz Truss’s claims that the EU has not sufficiently engaged with British offers, pointing out that “the EU has already shown flexibility on medicines and made further proposals last year [last October EU negotiator Maros Sefcovic promised an 80% reduction in spot checks on British goods going to Northern Ireland, and a 50% reduction in customs paperwork]. It is the British government that has refused to participate in formal negotiations since February.”
“In reality, the biggest stumbling block to a deal is not the EU’s intransigence over customs checks, but the government’s need to solve a different problem: the Democratic Unionist Party’s refusal to serve on the Northern Ireland Executive until the protocol has been effectively removed entirely…The result is that the bill contains sweeping provisions that would allow the government to override the protocol in such areas as taxation, state aid and the jurisdiction of the European Court of Justice, where Northern Ireland is currently treated differently to the rest of the United Kingdom.”
But all is not yet lost, even in the paranoid chambers of the DUP (I hope this is not the eternal optimist in me speaking!). Writing before the publication of the latest legislation, Sam McBride, who has excellent sources in that party, quoted a senior figure at its harder end saying: “We know the whole protocol won’t be removed.” McBride says the challenge for the DUP will be calculating how much protocol to accept. “Too hard-line a position will mean it’s never back in government, risking punishment by voters in the long run, while too weak a stance could see the party collapse in the short term as unionism’s mood hardens.”
He believed that behind the belligerent rhetoric, there was the chance of a UK-EU compromise emerging that the DUP might back. “The argument is no longer about whether the protocol is implemented, but about how much of it is ditched and how that is done. The EU may deny this. It says it will not alter the text of the protocol; just its implementation. But this is a semantic denial. On medicines, the EU left the bit of the protocol that says EU medicines regulations must apply, but then altered those regulations.”
The main problem, as always under the present regime in London, is the deep dishonesty and untrustworthiness of Boris Johnson and his government. It is clear that most senior officials in Belfast and Dublin, London and Brussels, now believe the transparently imperfect deal that is the protocol can be amended to make the Irish Sea ‘border’ much lower and easier to navigate: finding a mutually acceptable “landing zone” is how Micheál Martin and Irish Minister for Foreign Affairs Simon Coveney put it.
But does anybody trust Boris Johnson to deliver anything these days? Brussels will hope that this bill is another manifestation of Johnson’s ‘madman’ or ‘King Kong’ strategy: his belief that the way to get the EU to negotiate is through threats. Sick and tired of the endless Brexit psychodrama, EU capitals see the legislation as another example of the Conservative party negotiating with itself rather than with Brussels, and hope that wiser heads (perhaps in the form of a new prime minister) will eventually prevail in London.
In Ireland, Johnson’s careless (of the well-being of Northern Ireland), reckless and mendacious actions have led to even more division: within the North (not difficult!) and between the governments in Dublin and London (who remain the crucial joint guarantors of the Good Friday Agreement, now barely speaking to each other). I will come back to the tragic loss of an agreed British-Irish policy to manage the problems of Northern Ireland in a future blog.
PS In the first eleven days of July I will be cycling from Mizen Head in County Cork to Fair Head in County Antrim (over 600 kms) to raise money for Concern Worldwide’s education programmes for girls in Afghanistan. Given the takeover of that country by the Taliban last August, there is a particularly urgent need to support this vital work by the Irish development agency. I am also worried that the people of Afghanistan – living under brutal Taliban rule, with repressive laws governing women, and often facing extreme poverty and starvation – are in danger of being forgotten because of the war in Ukraine.
My aim is to raise €6,000. I will be leaving Mizen Head on 1st July, and cycling (with one friend) via Bantry, Macroom, Mitchelstown, Templemore, Tullamore, Mullingar, Cavan, Armagh, Ballymena and Ballycastle, arriving (all being well) at Fair Head on 11th July. I am aged 74, so this will be a bit of an undertaking for me!
I would be really grateful if any reader of this blog felt able to send me a donation, however small. Please go to my fund-raising page on https://fundraise.concern.net/andy-pollak to donate in any major currency – it couldn’t be simpler. Míle buíochas.
1‘ A sledgehammer to crack a nut: NI traders bemoan protocol problems’, Irish Times, 21 May
2‘ NI Protocol’s flaws there for all to see as both sides eye up compromise’, Belfast Telegraph, 22 May
3 ‘Bill is more far-reaching than anticipated’, Irish Times, 14 June
4 ‘Law and border: Northern Ireland protocol bill prompts ire’, Financial Times, 14 June
5‘ Brexit Undone’, The Times, 14 June
Excellent summary and analysis