John Cotter (Keele University)
About a year ago, I wrote a blog for the DCU Brexit Institute for the occasion of the twenty-second anniversary of the signing of the Good Friday (Belfast) Agreement. At the time, the UK had left the EU just over two months prior and the EU-UK Withdrawal Agreement and the Ireland/Northern Ireland Protocol had come into effect (at 23:00 GMT on the 30th January 2020). However, by virtue of the Brexit transition period, which was set to (and did) expire on the 31st December 2020, the entire UK remained in the EU Internal Market, which meant that the impact of the operation of the Ireland/Northern Ireland Protocol was not yet being felt in practice. Then, just as now, the Covid-19 pandemic was the main news story, but in the background, uncertainty reigned around the question of whether the EU and the UK could conclude an agreement on their future relationship before the end of the transition period. There were also suggestions from both the British Prime Minister, Boris Johnson, and Brandon Lewis, the Secretary of State for Northern Ireland, that there would be no checks on goods crossing the Irish Sea after the transition period, which – on a charitable interpretation – appeared to suggest a very different reading of the Protocol on the British side.
In my blog, I made (the perhaps obvious) point that, notwithstanding (in)famous election slogans, Brexit was not done and that the dynamics and contradictions that had plagued British government Brexit aims (demonstrated most ably by R. Daniel Kelemen’s ‘Brexit Trilemma’ Venn diagram) would continue to operate in the performance of the Protocol. While I suggested that the possibility of infringement of the Protocol was a threat to the Good Friday (Belfast) Agreement, especially if the UK were “unperturbed by the economic and political consequences of non-compliance”, I also acknowledged that there were significant disincentives against non-compliance.
The year since my last blog on the subject has been an eventful one in the early life of the Protocol. From my perspective, at least two themes have played out, which are roughly consonant with the observations I made in my last blog.
Firstly, the Protocol rather than assisting in ‘getting Brexit done’, as Boris Johnson asserted it would, has merely moved the British government’s attempts to wrestle with the contradictions of its Brexit aims from one process (the withdrawal negotiations) to another (the performance of its obligations under the Withdrawal Agreement and the Protocol). The fundamental tension between seeking to diverge from the EU’s Internal Market and seeking to ensure the integrity of the UK and its internal market remain. This tension is an emotive, as well as purely pragmatic one, and one which can well up within the same individual Conservative politician, let alone the Conservative Party as a whole. The push-and-pull dynamic that can occur between these two aims may appear at times irreconcilable and may result in periodic assertions that the absence of any trade friction between Great Britain and Northern Ireland and maintenance of the UK union should take precedence over compliance with the Protocol. Apart from the aforementioned statements by Johnson and Lewis, this dynamic was at play in the initial UK Internal Market Bill, which threatened to breach the Withdrawal Agreement by empowering ministers to effectively override the Agreement. In the end, the offending clauses were removed from the Bill after an agreement in principle on the implementation of the Protocol was reached in the EU-UK Joint Committee. This agreement in principle, which eventually was formalised in a number of decisions and unilateral declarations later in December 2020, appears to have merely postponed many of the problems, however. In early 2021, the vexed issue of declarations on agri-food products moving from Great Britain to Northern Ireland arose again to reveal the now familiar tension between aim (and consequences) of regulatory divergence from the EU and facilitation of the UK internal market. It had been agreed in the Joint Committee, and formalised in a UK unilateral declaration, that suppliers bringing agri-food products into Northern Ireland from Great Britain would have a three-month grace period before they would have to comply fully with the EU’s Sanitary & Phytosanitary (SPS) regime. This unilateral declaration also recognised that this grace period was non-renewable. However, again facing the realities of the de facto Irish Sea regulatory border, the British government in early March 2021 announced a decision to unilaterally extend the grace period, to which the European Commission responded by sending a letter of formal notice to the British Government, the first step in launching infringement proceedings before the EU’s Court of Justice.
Secondly, and I acknowledge it is early days, the Protocol has so far proven itself to be resilient both legally and, crucially, politically to threats to infringe it or otherwise undermine it. Both the EU and UK sides have discovered at different stages that there are significant legal obstacles to unilaterally invoking Article 16 of the Protocol. Perhaps more significantly, a political culture appears to be establishing itself whereby any suggestions of infringing or undermining the Protocol are met with widespread, if not universal, condemnation: the initial reception of the UK Internal Market Bill in the House of Lords and the adverse cross-community response to the European Commission’s clumsy consideration of invoking Article 16 spring to mind immediately. Moreover, disputes have thus far resembled a (albeit often irresponsible, to put it mildly) form of brinksmanship that has ultimately been capable of resolution in the Joint Committee or resulted in recourse to the legal dispute mechanisms envisaged by the Protocol itself.
The Protocol, like the Good Friday (Belfast) Agreement itself, was (despite the election-winning slogan) never about ‘making the politics go away’ or ending a process; it was about providing a mutually agreed-upon space within which that process could take its course. Thus far, despite a rather tumultuous year, it has fulfilled that purpose.
John Cotter is a lecturer in law at the School of Law, Keele University.
The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.