Brexit Institute News

The unexpected cross-over of vaccines, article 16, and the Northern Ireland protocol

Daniel Keohane (DCU Institute for International Conflict Resolution and Reconstruction and Brexit Institute)

It was always going to be challenging to cope with the disruption of the new post-Brexit EU-UK trade regime in the middle of an economy-crushing pandemic. Especially in Northern Ireland, where there is a different trade arrangement to the rest of the UK. Under the terms of the “Ireland/Northern Ireland Protocol” agreed by the UK and the EU in the 2019 withdrawal treaty, Northern Ireland remains constitutionally part of the UK, but de facto has had to introduce an EU single market “sea border” to carry out checks, at ports like Larne, on goods travelling from Great Britain to Northern Ireland.

The protocol was the result of over two and half years of formal Brexit negotiations (from 2017-2019), and came into operation in January 2021, alongside the broader EU-UK trade deal (known as the TCA – Trade and Cooperation Agreement) agreed at the end of 2020. The basic idea behind the protocol was to protect strand II of the 1998 Good Friday/Belfast Agreement, the cross-border part focused on North-South cooperation, which had mainly functioned based on shared EU rules.

Then UK PM Theresa May agreed an arrangement with the EU in summer 2018, that an all-UK “backstop” would apply to EU-UK trade if no broader trade deal were eventually agreed. In practice, this meant there would be no trade borders anywhere – on the island of Ireland or between Northern Ireland and Great Britain – because the UK would de facto remain in the EU customs union and single market. But the latter was unacceptable to harder Brexit supporters, and the Democratic Unionist Party, which propped up May’s minority government at Westminster at the time.

After Boris Johnson became UK PM a year later, he wanted to pursue a harder Brexit outside the EU single market and customs union, and to therefore renegotiate the backstop. The only workable and mutually agreeable compromise left was the protocol, which avoided a hard land border on the island of Ireland (and for the EU single market), but introduced seaport checks on goods from Great Britain to Northern Ireland. The protocol was never a perfect compromise, rather the option that the UK, the Irish government, and the EU, considered to cause the least political damage and practical disruption in the broader hard Brexit context.

The protocol has now been in operation for just over a month, but has noticeably caused disruption, such as for supermarket chains in Northern Ireland supplied from Great Britain. Northern Irish Unionist parties, opposed to the protocol since it split the UK internal market, increasingly claimed with each passing week that the disruption proved the protocol wasn’t fit for purpose. They called on the UK government to at least trigger article 16, a safeguard clause in the protocol, to remove barriers to GB-NI trade. And then on January 29, the European Commission seemed prepared to trigger article 16 of the protocol, to monitor the flow of anti-Covid-19 vaccines leaving the EU.

Completely separately from Northern Ireland’s difficult adjustment to the protocol system, during the past month the European Commission has been under pressure from some EU member-governments to speed up its acquisition of anti-Covid-19 vaccines. A very public row with vaccine manufacturer AstraZeneca, which the Commission strongly insisted was not meeting its contractual obligations, led to the Commission introducing vaccine export checks on January 29. Whether it was intended to be triggered or not, article 16 of the protocol was included in the initial export monitoring package of measures – which, if triggered, would equate a hard land border on the island of Ireland for vaccine movement.

Whatever the technical commercial reasons behind this vaccine signal from the European Commission, including article 16 went down like a political lead balloon in Ireland and the UK, especially in Northern Ireland. Although the Irish government was not notified in advance, the Commission removed article 16 from the package immediately after Micheál Martin, the Irish Taoiseach, phoned Ursula von der Leyen, the President of the European Commission on the evening of January 29.

But the political fallout from this unexpected cross-over of vaccine and protocol policies might take time to play out. The three main Unionist parties – the DUP, the UUP, and TUV – already fiercely critical of protocol arrangements, have now joined together to call on the UK government to renegotiate the protocol, meaning they would prefer it to be scrapped altogether. They contend that the EU move shows that Brussels is prepared to live with a land border if necessary, removing the main argument for the sea-based protocol arrangements. Moreover, staff working on Brexit-related checks at Northern Irish ports have since been withdrawn due to threats to their security.

On February 3, UK PM Johnson said he was prepared to invoke article 16, in response to a parliamentary question from a DUP MP (he previously said this before, on January 13, again in response to a question from a DUP MP). But the Irish government and the EU insist that the protocol will not be removed, as there is no workable alternative unless the UK government decides to embrace a softer Brexit trade arrangement, aligned to EU rules. Instead the Irish government has said it wishes to explore ways to improve the protocol, to make it work more smoothly for GB-NI trade and to reduce political tensions.

As Sam Lowe at the Centre for European Reform has argued, there are technical ways forward to smoothen the protocol, such as the EU extending “grace periods” for not checking certain goods travelling from GB-NI (there a number already, for example for goods of animal origin), and the UK aligning with the EU on veterinary/food hygiene rules (similar to what Switzerland has done).

The hope is that such technical improvements would make the protocol more politically palatable to some Unionists. But this is probably unlikely, not least as the Northern Ireland Assembly will vote on retaining the protocol before the end of 2024, after elections next year. If anything, the European Commission’s unexpected cross-over of vaccine and protocol policies has encouraged Unionists to harden their opposition to the protocol. This does not mean the UK and the 27 EU governments will renegotiate the protocol, but it does mean that Brexit will likely remain front and centre in Northern Irish politics in the years ahead.

Daniel Keohane is Senior Research Fellow at the DCU Institute for International Conflict Resolution and Reconstruction and the DCU Brexit Institute.

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