According to the The Times this morning, the UK and the EU are very close to announcing a deal has been agreed upon to resolve differences over the Northern Ireland protocol. Let’s hope that the story is correct. While the economic damage from Brexit in the province has been minimised and GDP boosted by the protocol, the political fallout, which is far more important for long-term stability in the province, continues to stoke tensions.
The EU and the UK have been at loggerheads for two years over the protocol that Boris Johnson put his name to in the withdrawal agreement of October 2019. The UK government is yet to fully implement the terms, having unilaterally awarded itself various ‘grace’ periods and derogations to avoid further upsetting unionists who are viscerally opposed to it over concerns about being separated from Great Britain.
At Stormont the devolved executive has been unable to function after the Democratic Unionists (DUP), the largest unionist party, refused to engage in the election of a speaker to the assembly following last May’s elections. The result saw the nationalists of Sinn Féin gain the highest number of seats and the coveted post of first minister.
The DUP are demanding the Northern Ireland protocol (NIP) be ditched altogether, or renegotiated to meet their seven tests which are so sweeping that they amount to virtually the same thing. The Times report offers conflicting views from inside the UK government. One source said they believed that the new arrangements met all seven tests while others “feared there was no possible deal that the DUP would sign up to”. The government is determined to push ahead regardless.
If an executive is not formed, new elections will be required by law before 13 April 2023. This is three days after the 25th anniversary of the Belfast (Good Friday) agreement being signed, which brought to an end 30 years of sectarian violence in Northern Ireland. US President Joe Biden is expected to attend the celebration and the Americans are turning up the pressure on the British government and the EU to resolve things before then.
A settlement soon seems very likely
All talk of the Northern Ireland protocol bill, allowing the UK to unilaterally override parts of the NIP, has been quietly dropped although the government denies it has been formally shelved.
The frosty relations between the UK and the EU over the NIP have certainly thawed. Foreign Secretary James Cleverly, Northern Ireland Secretary Chris Heaton-Harris and EU Vice President Maroš Šefčovič met on 9 January and issued a joint statement.
They “took stock of work to find joint solutions to the concerns raised by businesses and communities in Northern Ireland. The meeting was cordial and constructive”.
They said that “an agreement was reached today on the way forward regarding the specific question of the EU’s access to UK IT systems” which was a “critical prerequisite to building trust and providing assurance, and provided a new basis for EU-UK discussions”.
After a second meeting on 16 January, Cleverly and Šefčovič issued another statement indicating there were grounds for optimism that a settlement could be reached. They agreed that work on potential solutions “should continue in a constructive and collaborative spirit, taking careful account of each other’s legitimate interests”.
It now appears that, according to The Times, a potential solution is in sight although Rishi Sunak is said to be nervous about reaction to the compromise among Brexit-supporting MPs and in particular any intervention from Johnson.
Will the settlement be acceptable to the DUP?
That is the billion-dollar question. Nobody expects the NIP to be rewritten or changed significantly. At best there will be minor changes to reduce the frequency and intrusiveness of checks on goods being transported between Great Britain and Northern Ireland. The role of the European Court of Justice in ruling on EU laws retained in the province may be modified but probably not enough to satisfy loyalists.
Without some backtracking on the part of the DUP leadership, something bound to trigger an angry reaction from loyalists and the Orange Order, another divisive election will follow.
Alex Kane, a political commentator for both the BBC and Irish broadcaster RTE, writing recently in the Belfast Telegraph, thinks DUP leader Jeffrey Donaldson is running out of options to preserve unity in his own party and keep the devolution settlement.
According to recent polling, support among Unionists for the Good Friday agreement is falling. A LucidTalk online poll for the Belfast Telegraph now shows only 64% of people — down seven points on the 1998 referendum — would back the deal again if another poll was held, with the fall mainly attributed to a collapse in unionist support, down to just 35% while 95% of nationalists would still vote for the Good Friday agreement. Support among Green and Alliance Party voters remains high (96%).
The same poll shows 66% of unionists endorse the DUP strategy and don’t want Donaldson to return to Stormont unless the NIP is removed completely or changed substantially. The DUP leadership, however, is said to recognise the long-term damage to unionism by failing to engage in power-sharing at Stormont. Donaldson tweeted recently:
He is now between a rock and a hard place.
To make his position even more difficult Donaldson has his own UKIP-style Eurosceptic party in the Traditional Unionist Voice (TUV) founded in 2007 with the express intent of opposing “the obscenity of unreconstructed terrorists in government”. They want to see the Good Friday agreement scrapped and say they are keeping “the brakes on DUP concessions”.
In the May 2022 elections the TUV increased their vote share to 7.6%, up from 2.5% in 2017.
The problems are all down to Brexit
Much of the unionist and Brexiter ire over the NIP is aimed at Brussels, but virtually all the proposals came from Johnson’s government in its desire to ‘get Brexit done’.
Theresa May’s article 50 letter set the ball rolling when on the subject of Ireland she confirmed “We want to avoid a return to a hard border between our two countries” while exiting the single market and customs union, outlining an impossible scenario.
In September 2019, with his back to the wall, Johnson publicly gave the impression he would leave without a deal while at the same time quietly proposing to the EU that Northern Ireland would align with “nearly one hundred EU regulations and directives” on sanitary and phytosanitary (SPS) issues. This claim is in a recent book by Barnier aide Stefan De Rynck, Inside the deal: How the EU got Brexit done. Rynck maintains that Johnson’s offer “changed the dynamic” of the talks and allowed the two sides to move onto detailed discussions about “every dimension of the problem”.
An important principle on had been conceded.
De Rynck adds that:
“The UK initially proposed dividing [SPS measures] into two categories, thus proposing a uniform all-island solution for an important range of issues. On 18 September, UK non-papers committed to align Northern Ireland to EU rules on pesticide residues, quick frozen foodstuffs for human consumption, undesirable substances in animal feed, such as antibiotics, animal identification methods, conditions on third-party imports of poultry and hatching eggs, genetically modified organisms and food marketing, to name but a few.”
The UK at first baulked at border checks for issues such as vitamin additions to foods or the use of fertilisers, which they insisted would have to be done in a “different way”, before conceding six days later that, “relevant checks [had] to take place at Northern Ireland’s external border rather than at the Ireland/Northern Ireland border”.
Johnson later agreed to regulatory alignment on goods and products and on 7 October 2019, the UK accepted provisions on supervision and enforcement giving a role to the European Court of Justice.
The recent row over labelling of goods for the Northern Ireland market stems from another UK idea. M&S chair and former Conservative MP Archie Norman railed against “baffling” post-Brexit trade rules. Forcing companies to put “Northern Ireland only” or “UK wide” labelling on packages to avoid burdensome customs checks would drive up costs for supermarkets and producers, he argued.
Unfortunately for him, the idea of labelling came directly from the UK government’s July 2021 command paper. Paragraph 55 said:
“On SPS goods, there would need to be particularly strong oversight and visibility of supply chains; appropriate labelling requirements so that goods could only be sold in the UK; and increased market surveillance to monitor compliance, with penalties for non-compliant traders.”
Lessons learned
Given that the current technical talks are about implementing the British government’s own proposals now written up into a legally binding text and formally approved by the UK parliament, it may be optimistic to expect the EU to offer significant concessions. Some easements may be found, and a reduction in the number and frequency of checks, but it isn’t going to change fundamental principles. There will be a border.
Johnson’s arbitrary deadline in 2019 and his refusal to offer proper consultation with political parties in Stormont is being repeated again by Sunak. The DUP and Sinn Féin appear to be as much in the dark as anybody about what is likely to emerge in the next few days.
This, it seems to me, has always been a weakness in the UK government’s approach to Northern Ireland. Understanding the legitimate concerns of the two communities, explaining the realities of what Brexit meant for Ireland and the EU, and reaching a common position, should have been a priority, but never was.
What is clear, six years on from the vote and after nearly four years of negotiations, is that there is still no obvious solution to the Irish border trilemma which is acceptable to all sides. If there was, it would have been found and agreed by now.
To remind us all, the trilemma states that you can have any two of the following but never all three:
- Brexit
- No land border between Ireland and the UK
- No sea border between Northern Ireland and GB
The single market and the customs union are the two mechanisms that have eliminated borders between 30 European states that are members of the EU and the EEA. Withdrawing means that a border has to be reimposed.
Whether or not whatever the UK and EU agree will be acceptable to the DUP and the nationalists in Sinn Féin, and whether it will be sustainable in the long term, remains to be seen.
Nigel Dodds, a former deputy leader of the DUP from 2008 to 2021 and now leader of the DUP in the House of Lords, once said he would prefer to, “stay in the European Union and remain, rather than risk Northern Ireland’s position. That’s how strongly I feel about the Union [the United Kingdom]”.
His words may prove to be prophetic.
