Brexit Institute News

The EU-UK Agreement on the Implementation of the Protocol on Ireland and Northern Ireland

Rory Montgomery (former Permanent Representative of Ireland to the EU)

As I write, prospects for an EU-UK future relationship agreement hang in the balance. Pessimism seems prevalent. Even if a deal is reached, it will be much less ambitious than most on both sides would have hoped for or expected. Borders between the UK and EU will no longer be frictionless. It is the scale and duration of disruption which remain to be seen.  It would be a real failure were no deal to be the outcome. None of the outstanding issues should be irresolvable, quite the reverse. Standing back both from the detail and the rhetoric (nearly all of it British), an acrimonious breakdown would be unforgivable from a strategic perspective, given the extent to which the EU and UK will continue to share values, interests and challenges in a turbulent world.  But it may well happen.

In these circumstances, the agreement earlier this week on the implementation of the Withdrawal Agreement’s Protocol on Ireland and Northern Ireland came as a ray of sunlight. The Irish border question dominated the Article 50 negotiations for over two years. In October 2019 compromise was eventually reached on an outcome very similar to the backstop as originally conceived of in the autumn of 2017 – that is, the continued adherence of Northern Ireland to those rules of the internal market and customs union necessary to avoiding any checks or controls at the North/South border.

The avoidance of a North/South border inevitably led to, in shorthand, a border down the Irish sea. Once Theresa May came to understand the full implications of the concept, she rejected it out of hand, as a threat to the integrity of the Union.  The alternative she pursued, widening the application of the rules to the UK as a whole to prevent divergence between Northern Ireland and Great Britain, was agreed with the EU, but resoundingly rejected by Parliament. For very many in her own party, a harder Brexit was more important than Northern Ireland. The DUP put its trust in the promises of her successor, Boris Johnson, only to see him do a volte-face and agree to something very similar to what May had rejected eighteen months previously.

The only real novelty was a new provision for “democratic consent”: this requires the Northern Ireland Assembly periodically to endorse the continuation of the Protocol’s trade arrangements.  But from a unionist perspective this is a hollow promise because, departing from the Good Friday Agreement’s rules on cross-community support for contentious measures, the British Government allowed for the alternative option of a simple majority in the Assembly: and, given the make-up of the Assembly and the views of its parties, such a majority in favour of the Protocol should be easily achieved and maintained.

Much of the detail of the Protocol had to be worked out subsequently. The talks in the Joint Committee were separate from the wider EU-UK relationship. They were led by Maros Sefkovic for the Commission and Michael Gove for the British Government.  They established a good personal relationship and the talks were always courteous, if for several months unproductive. Key issues included whether EU staff could be present in Northern Ireland, what paperwork was needed for goods going from Northern Ireland to Great Britain, how to deal with the risks that goods could pass through Northern Ireland to the South (and thus into the internal market), how to apply state aid rules.  Complicating these practical issues was a perception that politics and ideology were leading the British Government to try to re-open some of the fundamentals of the Protocol.  Progress was very slow.

Then in September the British Government introduced a Bill to underpin a new UK internal market, some elements of which very provocatively opened the way to breaches of the Protocol – and hence of international law. This backfired at home.  In the EU it cast doubt on British good faith, and unnecessarily brought the controversy back into view in Northern Ireland.

The EU initiated litigation against the UK: but at more or less this time negotiations got under way in earnest.  Building on the good relationship already there between Sefkovic and Gove, they started to move towards compromise.  An additional factor may well have been the election of Joe Biden, who made clear that his keen interest in the protection of the Good Friday Agreement meant that if the Protocol were infringed he wouldn’t negotiate a US-UK trade deal (presented as a major benefit of Brexit) if the Protocol were infringed.

Solutions were found to all of the issues under discussion.  They will result in the implementation of the Protocol in a way which protects the Single Market and Good Friday Agreement while being as low-key, flexible and unthreatening as possible -in the economic interests of Northern Ireland businesses and consumers and in the political interests of Unionists.   That said, new checks and complications in trade between Great Britain and Northern Ireland are unavoidable.  And some of the solutions are temporary and while they will avoid short-term chaos in food and medical supplies, they do not solve longer-term issues.  But fears that agreement on the Protocol might become dependent on, even hostage to, an EU-UK Free Trade Agreement were dispelled.

This might suggest that the UK was trying to box off the Northern Ireland question in advance of no deal, and so avoid conflict with the incoming US administration.  But equally it showed that with creativity and goodwill agreement can be negotiated.  Even at one minute to midnight, let’s hope that this spirit can lead to success in Brussels.

Rory Montgomery was Irish Permanent Representative to the European Union (2009-13), Ambassador to France (2013-14), and Second Secretary General with responsibility for European issues at the Department of the Taoiseach (2014-16) and the Department of Foreign Affairs and Trade (2016-19). He is currently an Honorary Professor at Queen’s University Belfast, a Visiting Public Policy Fellow at Trinity College Dublin, and a senior adviser to Vulcan Consulting

Image credit: Visit of Boris Johnson, British Prime Minister, to the European Commission (European Commission) 10 December 2020

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