Clare Rice (Newcastle University Law School)
The UK government’s long-awaited command paper, outlining a framework of how it plans to implement the Protocol on Ireland and Northern Ireland of the Withdrawal Agreement, was published on 20 May. There was anticipation that this would provide an insight to the UK’s thinking on not only the macro-level ideas of how the challenges of implementation could be met, but on the substance of how these could be achieved. For the most part, however, the same ambiguities and uncertainties remain, and in some areas, more questions have emerged.
Given the nature of the Protocol itself, it is unsurprising that the bulk of the 20-page document is dedicated to trade-related matters. Comparatively little space is allocated to some of the wider elements consequentially impacted by the arrangements that will be required to see Northern Ireland remain in the UK customs territory while also remaining in practice part of the EU single market for goods.
As the arrangements on retaining those aspects of EU law covering trade (specifically Articles 5-10 of the Protocol) are dependent on periodic consent from the Northern Ireland Assembly (with the first vote to take place in 2024), the need to devise a flexible architecture for the implementation of the Protocol is emphasised throughout the paper. It is clearly a key aspect informing the UK’s position.
On the one hand, this is a pragmatic approach reflecting the potential for further change ahead, in the context of a truncated timeframe for the future relationship arrangements to be implemented and deteriorating (public) relationships between the EU and the UK. However, another question emerges: is the UK’s position in reality one which is being constructed in the hope that the Northern Ireland Assembly will vote to revoke consent for those aspects of alignment to EU legal requirements in 2024?
This is a concerning question, not least for the reason that the conduct of the negotiations and the approach of the UK government so far have created adequate conditions for such scepticism to arise. While it should not be the case that the UK government has an underlying ambition for the implementation of the Protocol to be tantamount to a failure, it seems as though this is not beyond the realms of possibility.
For a government steeped in a rhetoric of sovereignty, independence and reclaiming control from the EU, the complexities Northern Ireland presents to the achievement of these aims are obvious. Northern Ireland fundamentally prevents a clean-cut exit from the EU for the UK.
But, this is not necessarily a permanent state of affairs; the Northern Ireland Assembly has the power to continue in a hybrid situation with one foot in both the UK and EU arrangements, or it can choose to opt out of this. While it would not be clean, smooth or easy, voting to remove consent for this would remove the notion of Northern Ireland as a place apart in the UK in trade terms, would create a different basis from which to argue the merits of UK unity, and alter the framing of a Westminster counter-position to the Scottish independence movement.
Pertinently, such a move would succinctly bring Northern Ireland in line with the political ambitions of the current government with regard to the constitutional future for the UK. As Tony Connelly points out, this document gives precedence to providing unionist reassurances over technical detail.
In other words, UK unity is prioritised in the UK’s approach to implementing the Protocol. This is not a priority for the EU. And Northern Ireland is caught in the middle.
In this sense, it could be argued that it is in the UK’s interests to implement the Protocol but to ensure things do not run so smoothly that the arrangement becomes attractive as a long-term option. Further, it must be possible for the blame to be placed on the EU for the challenges that would be faced in Northern Ireland as a consequence. Even if only perceptive, creating a distinction between the two in this way, in the context of Northern Ireland having voted Remain in the 2016 referendum, would be a logical move in discouraging support for continuation of the Protocol arrangements beyond 2024.
Of course, the practical implication of this being achieved would be the presence of a trade border on the island of Ireland, which is the very thing that efforts with regard to Northern Ireland have sought to avoid. For well-documented reasons of history, society, politics and identity, this is far from a desired outcome. The extent to which individuals, businesses, civil society and politicians have mobilised over recent years to highlight the impact this would have on life in Northern Ireland, and in the border region in particular, has ensured that it has been known in no uncertain terms what the damaging consequences would be if a hard border was reinstated on the island.
If this is the intention on any level in how the UK is approaching the current negotiations, it both exposes and emphasises something that has been underestimated in Westminster to date – the renewed momentum that has been seen in Northern Ireland, in light of Brexit, with regard to Irish reunification. This is not something that appears is being taken as seriously as Scottish independence, yet it is as valid a potential – perhaps arguably a more legitimate potential reality given the existence of a formal mechanism to achieve secession from the UK through the Good Friday Agreement.
Put simply, the adverse consequence of poorly implementing the Protocol and directing blame towards the EU could be to establish an economic impetus towards Irish reunification, rather than to bolster Northern Ireland’s position within the UK going forward.
It has to be recognised that this is just one possible way of thinking about what the command paper tells us when it is considered within the wider context of the UK government’s conduct to date. Another is that the lack of detail in the paper shows the UK government as a rabbit caught in the headlights, with the end of 2020 fast approaching. It could also be that the UK government is unsure about what it wants to achieve, and/or that it is overwhelmed by managing the current Covid-19 pandemic in conjunction with trying to substantiate the commitments made in the Withdrawal Agreement and the Protocol. A combination of all of these seems the most likely.
But a focus on flexible architecture geared towards ultimate removal ceases to be pragmatic when it diverts attention away from the immediate need for functioning arrangements to be in place. This approach, if this is indeed the one informing the UK’s position on the implementation of the Protocol on any level, leaves Northern Ireland looking as though it will be little more than collateral damage in the pursuit of a longer-term political agenda beyond its control.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog