From the Good Friday Agreement to Brexit to Sunak’s latest deal: Are we one step closer to resolving the issue of the Northern Ireland Protocol?
The Historical Background
Keeping the peace in Northern Ireland has been a delicate balancing act. A defining episode in 21st-century Northern Irish political history was ‘The Troubles’: a period where the warring factions of unionists and nationalists engaged in violent conflict. The unionists are mostly Protestants and support the political union of Northern Ireland with Great Britain, whilst the nationalists follow Catholicism, believing that Northern Ireland should leave Great Britain and join a united Ireland. From the late 1960s until the resolution of the conflict in 1998, it is estimated that 3500 people died because of ‘The Troubles’.[1]
Violence during the Troubles
The conflict finally subsided when the Good Friday Agreement was signed by the British and Irish governments in 1998, which established a system of devolved government in Northern Ireland. Devolution was important as it guaranteed the Northern Irish people’s right to self-determination through self-government rather than being directly ruled from Westminster. Furthermore, the agreement facilitated the de-escalation of decades of conflict by introducing a constitutionally guaranteed compromise. The Northern Irish executive was to be a coalition of unionist (e.g. Democratic Unionist Part (DUP)) and nationalist (e.g. Sinn Fein) parties.[2] The representation of unionist and nationalist agendas in government was essential to the tremendous success of the agreement.
Setting up the problem: The thorny issue of Brexit
The Withdrawal Act 2020 gives effect to the UK’s withdrawal from the EU single market in domestic law, meaning the UK now has ‘third country status.’ Meanwhile, the Republic of Ireland retains its access to the single market, an area where goods and services move freely across the borders of EU member states.[3] Goods and services moving from the UK to Ireland and vice versa are subject to additional customs checks and paperwork, since the regulations in the autonomous UK zone diverge from those applied in the EU single market. Therefore, a border had to be drawn to delineate the boundary between the UK internal market and the EU single market.
The border separating the EU single market and the UK internal market
The problem lay in the fact that a land border between the UK and the Republic of Ireland naturally separated Northern Ireland as part of the UK from the Republic of Ireland, an EU member state. Separating the regions threatens to destabilise peace, given that it defeats the wishes of the Irish nationalists for a united Ireland. Though the Good Friday Agreement did not explicitly contain a provision against a hard border, a part of the deal involved the commitment of the UK government to a process of demilitarisation along the border.[4] The avoidance of a hard border is widely viewed as an essential way to maintain the sentiments of closer integration and cooperation that the British and Irish governments committed to in the 1998 agreement.[5]
Customs at Strabane, Northern Ireland
The most appropriate way to avoid a hard border and still separate the UK internal market from the EU single market was to treat the island of Ireland itself as a ‘single regulatory zone.’[6] This option would enforce a border between Great Britain and Northern Ireland in the Irish Sea. Yet, it would defeat the unionist agenda towards greater integration between Northern Ireland and Great Britain. Given the constitutional significance and the political and personal consequences of imposing a land border or an Irish sea border, it was clear from the outset that UK-EU negotiations had to present a solution that appeased both nationalists and unionists rather than tiptoe around the issue.
The Northern Ireland Protocol and its problems
In his negotiations with the EU, former Prime Minister Boris Johnson opted for a regulatory border in the Irish Sea.[7] This aligned Northern Ireland with EU standards on goods regulation, which departed from standards in the rest of the UK.[8] The Northern Ireland Protocol is a binding part of the Withdrawal Agreement 2020, which was signed by the President of the European Commission Ursula von der Leyen and then-PM Boris Johnson. The protocol came into effect in 2021 and had a disruptive effect on trade. More than 1 million customs declarations were applied to goods going from Britain to Northern Ireland in 2021.[9] Not only did this excessive red tape mean extra costs, delays and uncertainty for businesses, it also compromised the integrity of the union between Britain and Northern Ireland, to the dismay of the DUP.
To protect the union, Boris Johnson’s government introduced the Northern Ireland Protocol bill, which empowered the executive to unilaterally override the agreed terms of the Protocol. The EU saw the bill as a contravention of international law and promptly launched an infringement proceeding under article 258 TFEU against the UK. [10]
The Windsor Framework
Given the threat of EU legal action against the UK, any future solution had to restore UK-EU relations and preserve the integrity of the union to have any chance of improving the situation.
UK-EU negotiations on the Protocol concluded in the Windsor Framework, which was announced by Rishi Sunak on the 27th of February 2023. The deal was successful in de-escalating EU-UK tension when Sunak dropped the controversial Northern Ireland Protocol bill and the EU subsequently renounced its infringement proceeding.[11] To take effect, the deal must be ratified by the UK and the EU. To pass the deal through Parliament, Sunak must convince a majority that it strengthens the union between Northern Ireland and Britain, which form the autonomous UK internal market.
The first key feature of the agreement is a system of green and red lanes to regulate the movement of goods across the Irish Sea border. To protect the union, goods going to Northern Ireland from Britain will pass through the green lane, meaning they are subject to the minimal checks. Goods passing from Britain to Ireland will be subject to full checks to protect the EU single market.[12] The government command paper on the Windsor Framework claims the new system restores the ‘smooth flow of trade’ and ‘safeguards Northern Ireland’s place in the union’, whilst respecting the boundaries of the EU single market. The system of green and red lanes appears more detail-orientated than Boris Johnson’s half-hearted commitment to the border that he had agreed with the EU.[13]
Yet, some DUP MPs believe that the green and red lane system does not go far enough to secure the union, as the green lane still requires goods to pass through a regulatory border.[14] A recent poll revealed that a significant number of DUP supporters share their concerns. Whilst 67% of people in Northern Ireland would support the deal, 73% of DUP voters would reject it.[15] DUP MPs would find it difficult to support Sunak if such a large proportion of their supporters is against it.
At the same time, it must be reinforced that the lane system is a plausible method to streamline the movement of goods to Northern Ireland and is likely to make a tangible improvement to the lives of business owners by releasing them from the majority of burdening red-tape.
Rishi Sunak and Ursula von der Leyen come to an agreement
Another important feature of the deal is the Stormont Brake, which empowers members of the Northern Ireland legislative assembly to object to new or amended EU laws on goods if they have a ‘significant impact on the day-to-day lives of businesses and citizens.’ Should the concern fulfil all conditions, the UK government may decide to unilaterally strip the EU rule of all effect in Northern Ireland. Sunak was careful to exclude the jurisdiction of the European Court of Justice over any UK decisions.[16] The intentions of the deal therefore appear loyal to the sentiment of closer integration in the Good Friday Agreement, by bringing Northern Ireland closer to Westminster’s Brexit agenda to ‘take back control’. Yet, closer scrutiny suggests that the conditions for the application of the brake are so strict that it is ‘virtually unusable’, according to Professor Catherine Barnard.[17] At the same time, the Eurosceptic Research Group of Brexiteers has not used the limitations of the brake as an opportunity to raise objections to the deal.
Overall, the Stormont Brake is a hard-won concession by the EU[18]. It applies strict procedural and justification requirements to ensure that the disapplication of an EU rule would be a reasonable and necessary measure to further integration within the UK.
The deal does appear to be a step forward. It may be praised for its moderate stance that aims to appease conflicting interests. The uncharacteristic silence of Eurosceptic tory members suggests that Sunak has not alienated hard-line Brexiteers in pursuing improved relations with the EU. It is uncertain whether the deal has done enough to secure the union and the support of the DUP. Yet, a border between Northern Ireland and Ireland is theoretically and practically unavoidable if Sunak’s government wants to avoid a hard border dividing the Island of Ireland and separate the UK market from the EU market. The green lane system arguably does enough to support integration, by recognising Northern Ireland’s special status as a part of the UK.
Considering the challenges during a cost-of-living crisis and the Ukraine war, it is arguably a cross-party interest to put the issue of the Protocol to rest. If the deal is struck down by Parliament, it is a solid foundation for necessary re-negotiations. If the deal is passed by a majority, it remains to be seen whether the deal is as workable in reality as it is in theory.
[1]Gregory I., Cunningham, N., Lloyd, C.D., Shuttleworth, I, Ell, P. Communal conflict and death in Northern Ireland, 1969-2001 [online] Available at: https://www.lancaster.ac.uk/troubledgeogs/chap10.htm#:~:text=The%20conflict%20in%20Northern%20Ireland,led%20to%20over%203%2C500%20deaths. (Accessed 10th March 2023)
[2] Dickson, B. Devolution: A view from Northern Ireland [online] https://constitutionallawmatters.org/2022/04/devolution-a-view-from-northern-ireland/ (Accessed 10th March 2023)
[3] UK Finance Implications of leaving the EU single market [online] https://www.ukfinance.org.uk/sites/default/files/uploads/pdf/BQB1.pdf (Accessed 10th March 2023)
[4] Campbell, J. Brexit: Does the Irish peace accord rule out a hard border? [online] https://www.bbc.co.uk/news/uk-northern-ireland-46988529 (Accessed 10th March 2023)
[5] Ibid.
[6] Campbell, J. Brexit: What are the backstop options? [online] https://www.bbc.co.uk/news/uk-northern-ireland-politics-44615404 (Accessed 10th March 2023)
[7] Ibid.
[8] Sargeant, J. Northern Ireland Protocol Bill [online] https://www.instituteforgovernment.org.uk/explainer/northern-ireland-protocol-bill (Accessed 10th March 2023)
[9] BBC News, Northern Ireland Protocol: What did Boris Johnson say? [online] https://www.bbc.co.uk/news/58001530 (Accessed 11th March 2023)
[10] European Commission, Commission launches infringement proceedings against the UK for breaking international law and provides further details on possible solutions to facilitate the movement of goods between Great Britain and Northern Ireland [online] https://ec.europa.eu/commission/presscorner/detail/en/ip_22_3676 (Accessed 11th March 2023)
[11] Ibid. 13
[12] Curtis, J, Northern Ireland Protocol: The Windsor Framework [online] https://commonslibrary.parliament.uk/research-briefings/cbp-9736/ (Accessed 11th March 2023)
[13] Ibid. 10
[14] Hill, H. In the Commons, Democratic Unionist MPs seemed split on the Windsor Framework [online] https://conservativehome.com/2023/03/01/in-the-commons-democratic-unionist-mps-seemed-split-on-the-windsor-framework/ (Accessed 12th March 2023)
[15] Breen, S, Two-thirds back Windsor Framework, but 73% of DUP voters say ‘No’ to deal [online] https://www.belfasttelegraph.co.uk/news/politics/two-thirds-back-windsor-framework-but-73-of-dup-voters-say-no-to-deal/866342991.html (Accessed 12th March 2023)
[16] Ibid. 14
[17] O’Carroll, L. The Stormont brake: how can it be used? [online] https://www.theguardian.com/uk-news/2023/feb/28/the-stormont-brake-how-can-it-be-used-northern-ireland-eu-laws-brexit (Accessed 12th March 2023)
[18] Rentoul, J, What has Rishi Sunak actually achieved with the Windsor Framework [online] https://www.independent.ie/world-news/europe/britain/what-has-rishi-sunak-actually-achieved-with-the-windsor-framework-42364160.html (Accessed 12th March 2023)
