Brexit Institute News

A new dawn for the Protocol on Ireland/Northern Ireland?

Dagmar Schiek (University College Cork)

If social and print media are to be believed, a change of the Protocol on Ireland Northern Ireland is imminent – or not. At least there are negotiations going on, either on its better implementation, or its abolition, depending on the reader.

The public debate tends to lay too much blame at the Protocol, and forgets the fundamental problems which “Brexit” was always due to cause in Northern Ireland specifically. The UK’s withdrawal from the EU constitutes the proverbial withdrawing of the carpet under the feet of the Good Friday Agreement, which was based on common EU membership of Ireland and the UK. EU membership was decisive specifically for the hybrid status of Northern Ireland and its people, and the promotion of economic prosperity in Northern Ireland, both demanded by the GFA. The hybridity of regions and personal identities is supported in a Union of states dedicated to stabilise and promote transnational interaction between socio-economic actors as its main means of integration through granting of enforceable rights. Those citizenship rights allow the emergence and proliferation of regional identities, as the national identities lose relevance. Likewise, the idea that equality of rights for interaction nurtures socio-economic integration and the steady improvement of working and living conditions is also central to EU integration. More pragmatically, the reality of the Internal Market across the EU, and the adoption of the EU Customs Code in 1993, not only eliminated the need for border controls all over the EU, including on the island of Ireland. It also allowed practical development of an all-island economy, obviating any discussion on whether an all-island economy was also a precondition for that socio-economic enhancement of Northern Ireland.

The UK’s withdrawal from the EU results with necessity in a situation in which either the all-island integration or the integration of Northern Ireland into the UK becomes more pronounced. The Protocol was spurred by concerns on a re-emergence of a border on the island of Ireland, while the public discourse only rarely touched on the issues mentioned above. As a result, the Protocol enhances all-island integration, albeit only in the area of free movement of goods, at the expense of integration of Northern Ireland into the UK. This also exposed the specific vulnerability of a unionist identity to “Brexit”.

The violent conflicts erupting around the necessity of controlling agricultural goods coming into Northern Ireland, and thus the EU common market for agricultural products at the time of writing confirm this destructive dynamic in the saddest possible way. Both the EU Commission and the Council of Larne withdrew their staff from the Port of Larne, because drastic murals and activities such as noting down of car registration numbers of staff indicated a threat of violence. According to the PSNI, the threats are not related to paramilitaries or sectarian activists, but instead are the activities of some individuals. However, the PSNI does not feel in a position to police the activities of those individuals in such a way that workers at the port of Larne do not feel threatened.

The violence has been accorded to “community tensions” stoked by the protocol itself. In response, the Democratic Unionist Party, one of two Unionist parties in Northern Ireland, has issued a “united message from unionists” to the UK government to “free us from the protocol”. Northern Ireland’s Agricultural Minister Poots explained that it was difficult to restrain anger in the community. All this is reminiscent of a past in which “Northern Ireland was ungovernable (…) without the consent of Unionists”.

Was it wise to start re-negotiating the protocol as a response to this mixture of violence and political posturing? Maybe it was necessary to avoid further escalation. And maybe, there are concrete steps which could be taken to ease the delivery of British products into Northern Ireland. However, looking at the socio-economic prosperity in Northern Ireland, the fact that more than 20 years after the Good Friday Agreement there is still a trade deficit of Northern Ireland in relation to Great Britain is problematic. Should that state of affairs be further protected? Or would “Brexit” not be an opportunity to promote unfettered access of Northern Irish goods to the UK, making maximum use of the fact that Northern Ireland is now placed firmly in two markets for goods?

Addressing problems to fill out customs’ declarations can be addressed in two ways, which could be acting in parallel. First and foremost, the development of targeted technology and the training of staff at businesses and ports in its use could ease the burden created by the fact that the UK has chosen to remain outside the EU’s internal market and customs’ union. The UK prefers an extension of the “grace period” for another two years. This means a request to not apply the protocol, without any concessions on the other side. Nevertheless, the European Union will feel compelled to appear cooperative. They could propose alleviations for good movements which appear most problematic, e.g. certain products based on fresh meat and the travel of pets, which is free on the island of Ireland, but not between the British islands. For example, in relation to fresh meats, the UK could commit to maintain the EU standards for the fullness of the extreme “grace period” now demanded, and also allow EU controls on this matter both in Britain and Northern Ireland. Discussions can be had on any support PSNI might need to address the threats by a few individuals and groups.

Nothing of this requires an overhaul of the Protocol, which indeed allows flexibility on the basis of cooperation.

Dagmar Schiek is Synnott Family Chair in European Union Law at University College Cork.

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