'The Government should reflect that none of the problems with the Protocol it has pointed to should have come as any surprise'
Mike Buckley is the director of the Independent Commission on UK-EU Relations and a former Labour Party adviser
The DUP, Northern Ireland’s largest unionist party, has blocked the appointment of a speaker at the Stormont assembly for the second time since regional elections in May to press its demands for sweeping changes to the region’s post-Brexit trading arrangements.
Its refusal to support the election of a speaker, as it had done on May 13, ensured local politics remains paralysed.
The DUP is demanding unspecified “decisive action” over the Northern Ireland Protocol, which imposes post-Brexit checks on goods travelling between Great Britain and Northern Ireland, before it will consider returning to political institutions. A majority of elected legislators, however, and a majority of the public support the protocol, with tweaks.
Despite this support, the UK Government have chosen to side with the DUP, arguing that “the protocol must be fixed.” Foreign Secretary Liz Truss wants the current trade checks replaced by a “green lane” for goods destined to stay in Northern Ireland, among other changes.
In part to appease the DUP she has pledged to present a bill to the House of Commons within weeks which if passed would give the Government powers to rip up parts of the Protocol unilaterally unless the EU agrees to fundamental changes.
Truss is on dangerous ground. Unilateral suspension of parts of the Protocol would break international law given it forms part of the Withdrawal Agreement signed between the UK and EU on the former’s departure from the bloc.
The EU has pledged that, should suspension go ahead, it would respond “with all measures at its disposal”. This would mean punitive trade barriers, including tariffs and other measures that involve shelving the post-Brexit free trade deal, which would add further damage to the already significant harm done to the UK economy by the Brexit deals as they stand.
“Should the UK decide to move ahead with a bill disapplying constitutive elements of the protocol as announced today by the UK government, the EU will need to respond with all measures at its disposal,” said Maroš Šefčovič, the European Commission vice-president in charge of Brexit negotiations for the EU.
“Our overarching objective is to find joint solutions within the framework of the protocol. That is the way to ensure legal certainty and predictability for people and businesses in Northern Ireland.”
The UK Government in part justify their position on the grounds that the Protocol as it stands destabilises the 1998 Good Friday Agreement which established Stormont and restored relative peace.
In doing so they fail to acknowledge that, given their desire to take Great Britain out of the customs union and single market, there was no viable alternative. By rejecting the open border, full or partial UK membership of those structures would have allowed, they made a border inevitable. Given it is practically and politically no possible for it to be on the island of Ireland the only available alternative was a border in the Irish Sea.
They fail to acknowledge too that far from destabilising the Good Friday Agreement the Protocol is, given Brexit, its only means of survival. The Agreement is predicated on an open border on the island of Ireland, on the free movement of Irish and British citizens and on equal rights for people of either or both nationalities within Northern Ireland.
Even with the Protocol in place the Agreement is in the eyes of many tarnished and is put under significant pressure. The rights of British and Irish citizens in Northern Ireland are now unequal in significant ways, while non-Irish EU citizens have no rights at all. This alone impacts hundreds of thousands of people on the island.
Instead of seeking ways to resolve these issues and restore greater stability to Northern Ireland the Government have chosen to focus on the need to reduce checks on goods traded between Great Britain and Northern Ireland.
Doing so is a valid goal. Unionists are concerned that the presence of checks distances them from the rest of the UK and inhibits cross border trade. Yet even as they claim this as an aim, the Government have refused to consider mitigations offered by Šefčovič which Northern Ireland business leaders saw as meeting almost all their demands. Truss’ refusal to accept them keeps checks in place needlessly, inflaming unionist anger in the process.
Truss could also consider a veterinary and SPS agreement with the EU. Its introduction would remove the need for checks on food, plant and animal products entering Northern Ireland. Again, she refuses to take an available and easy route to reduced checks.
Instead the Government continue to ask for the impossible: an open border into the EU Single Market without adequate checks to ensure the safety or quality of goods or produce. No such open border exists anywhere in the EU; they will not contemplate it here.
The Government should reflect that none of the problems with the Protocol it has pointed to should have come as any surprise. As outside experts and its own officials pointed out after the text was published, any careful reading of the text of the Protocol shows that it requires regulatory and customs checks on goods entering Northern Ireland from Great Britain, that it requires EU law on goods regulation and VAT to continue to apply in Northern Ireland, and that it was bound to affect trade between Northern Ireland and Great Britain.
For better or worse the Government decided to sign it anyway, and did so after winning an election in which it was presented as a “great deal”.
The Government now believes that signing it was a mistake. But the right approach to trying to resolve the mistake is to be honest about what it agreed, not to blame the other side, and to engage in good faith negotiation with all interested parties including the majority in Northern Ireland that broadly supports the Protocol as well as the minority that opposes it.
There could well be better solutions than the current version of the Protocol to the problems thrown up by Brexit for Northern Ireland – but those solutions are likely to depend on far greater trust and co-operation between the EU and UK, and a far better and closer overall relationship of trade and cooperation between the UK and EU than exist now or are likely to exist if the current Government goes down the path of deliberately breaking the binding promises it made less than three years ago.
Instead the UK Government should as a matter of urgency work to rebuild trust with the EU and the Irish Government, and to rebuild trust between Northern Ireland’s political parties.