The Northern Ireland Protocol (NIP) was agreed between the United Kingdom (UK) and the European Union (EU) in 2019 as the complex mechanism meant to regulate the new border between the two blocs, known as the ‘Irish Sea border’. Since its implementation on January 1st 2021, the Protocol, which is in effect an international border located within the UK’s internal market between Northern Ireland (NI) and Great Britain (GB), has raised significant tensions. As the UK and the EU are negotiating to amend the NIP, with the aim of reducing its bureaucratic burdens to ensure long-term peace on the island of Ireland, it bears asking: what is next for NI?
The Protocol’s raison d’être and implications
The NIP, despite its serious economic and constitutional implications for NI, was the only solution found jointly by the UK and the EU to maintain peace in the region following the UK’s pursuit of a ‘hard’ Brexit. Indeed, the UK Government’s promise to leave the EU’s Single Market and Customs Union upon Brexit day “meant choosing to create the need for an economic border with the EU” (my emphasis) which had to be in NI since it is the only land border between the two blocs. However, since Northern Ireland uniquely enjoyed unfettered trade relations with both the Republic of Ireland (ROI) and GB for historical reasons, there was “no politically acceptable place to put that border”. Indeed, the 1998 Belfast Agreement prevents a border between NI and the ROI, for the purpose of establishing peace on the island after decades of ‘Troubles’, and a border between NI and GB in the Irish Sea was seen by Theresa May as something that “no UK Prime Minister could ever agree” to. However, eventually, Boris Johnson negotiated precisely this second option, won a mandate for it in the 2019 General Election and then enshrined it into UK law. As a consequence of this, NI remains in the EU’s Single Market* and Customs Union as the price for continuing to enjoy unfettered trade with the ROI (and the rest of the EU) (Weatherill 2020, p 224). This also effectively means that costs and paperwork are now associated with trade between NI and GB (Dougan 2020), a reality which has raised issues for businesses and raised tensions in the region, illustrated for instance by the threats issued against Irish Sea Border Control staff.
The UK’s July 2021 Command Paper
The UK Government has adopted a ‘hardball’ approach to demand arrangements to the NIP. Indeed, in a July 2021 Command Paper, Brexit Minister Lord Frost demanded to scrap and replace the NIP entirely. This demand is being framed in response to two perceived issues: (1) strict implementation of the Protocol, and (2) the role of the European Court of Justice (ECJ) in overseeing the application of EU Single Market rules in NI. At the present day, the NIP border checks are not being fully implemented since the UK and the EU have agreed to ‘grace periods’ to allow businesses to adapt. Nevertheless, the tensions created by the new costs associated to GB-NI trade really “seem insoluble”, and can only be expected to intensify when the grace periods end. It is therefore realistic to expect the EU to alleviate the burdensome bureaucracy associated with GB-NI trade without unduly endangering the integrity of its Single Market. However, the UK’s demands to do away with the ECJ’s jurisdiction in NI are “purely ideological”, since NI businesses have not complained of the ECJ’s jurisdiction at all. It is unrealistic to expect the EU to agree to the ECJ not having jurisdiction in NI with regards to the Single Market rules that it applies, and fair to say that the UK would never have agreed to such a thing if the roles were reversed. It would be counter-productive for the UK to insist on the ECJ having no say in NI whatsoever, as it would merely serve to undermine the trust between the parties that is necessary for the EU to agree to alleviate border checks.
The EU’s October 2021 package
On October 13th 2021, the European Commission proposed a package of solutions to address the practical difficulties posed by implementation of the Protocol in NI which the UK should accept. Indeed, the arrangements go as far as proposing to amend EU law to offer flexibilities in implementation of the Protocol, all while protecting the EU’s Single Market. Most notably, the deal proposes to create an ‘express lane’ for the trade of goods between GB and NI, through reducing the sanitary and phytosanitary (SPS) checks by 80% and the customs checks by 50%. In effect, this means for example that a lorry carrying a hundred products would only need a single certificate to cross the Irish Sea border, rather than the hundred technically required now. Also, British sausages would be able to be imported and sold in NI again. To protect the EU’s Single Market, the implementation of such arrangements would be conditional upon the UK upholding its commitment to appropriately build and staff border control posts, which it has not done until now, as well as to give the EU access to IT systems for reinforced monitoring. On another side, though it ignores the ‘issue’ of the ECJ’s jurisdiction raised in the UK’s July Command Paper, the EU does acknowledge the need to address the constitutional and democratic issues posed by the Protocol. The bloc is proposing to encourage exchange of information between authorities and NI stakeholders, most notably through the creation of a website dedicated to the Protocol and creation of structured discussion groups. The package can reasonably be described as a ‘good deal’, which meaningfully addresses practically all of the practical issues raised by implementation of the Protocol while maintaining the integrity of the EU Single Market.
The UK Government is threatening, if it does not come to an agreement with the EU within the next few weeks, to ‘suspend’ the application of the NIP through invoking Article 16 of the Protocol. While the UK is arguably not, at least in the circumstances, within its rights to invoke Article 16, the Government is now seeking to “appoint new legal advisers” for support in doing just that. It is difficult to see how new lawyers could provide the Government with the advice that it wants to hear: Article 16 and its accompanying Annex make clear that the measures taken under the Article are limited and can only be adopted immediately in exceptional circumstances which, by definition, ‘cannot be long predicted or preventable’. Here, the disruptions to trade resulting from the literal implementation of a trade border were foreseeable, and indeed arguably long foreseen by the UK Government. Indeed, why else would it have shown the political will to renege on its obligations under the Protocol through proposing, in its Internal Market Bill 2020, to give powers to UK Ministers to expressly violate the NIP (Jeans 2021)? The Article is not a route to disapplying the Protocol: the only way this could happen would be if the NI Assembly withdrew consent to the NIP’s application in 2024. Finally, the EU would be entitled effectively to trigger a trade war by taking ‘rebalancing measures’ to the UK’s actions under Article 16. This would evidently generate great distress and uncertainty for NI businesses, not least since the EU would have the upper hand in any potential trade war due to its sheer size.
The UK Government should accept the EU’s October 2021 package of arrangements to the NIP. Though more of a “response to the practical problems on the ground rather than to the UK’s demands as such”, the package has been described as a “bold move” that has gone “beyond [the] expectations” of NI businesses”, and which “would have been considered a […] victory for Brexiters had it been offered at an earlier stage”. It constitutes the best way to stabilise the region in the long-term by truly enabling it to enjoy the opportunities of dual access to the EU and UK markets. It is a good deal, and it would be unwise and unnecessary to risk a potential trade war with the EU over the ECJ’s jurisdiction which, in practice, is definitely not likely to cause any problem to the region.
*NB: NI is technically only benefitting from a ‘shrunken version’ of the EU’s Single Market. The Protocol is ‘selective’ and only provides for NI’s alignment with EU rules for goods, not for example as regards labour market regulation and social policy (Weatherill 2020).
Protocol on Ireland/Northern Ireland to the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, available at: <https://assets.publishing.service.gov.uk>
Andy Bounds, Sam Fleming, Henry Foy and George Parker, ‘EU Offers to Scrap Most Checks on Goods Heading for N Ireland’ The Financial Times, available at: <https://www.ft.com/content/98bd08ca-faee-4476-947d-2f3817928ee3>
BBC News, ‘Theresa May: No UK PM Could Ever Agree with EU Draft’, available at: <https://www.bbc.com/news/av/uk-politics-43228485>
Chris Grey, ‘The Ir/responsibility of Brexiters’ Brexit & Beyond (9 April 2021), available at: <https://chrisgreybrexitblog.blogspot.com>
Chris Grey, ‘The Moral Turpitude of Brexit Brinkshanship’ Brexit & Beyond (15 October 2021), available at: <https://chrisgreybrexitblog.blogspot.com/>
Daniel Boffey, ‘What Next for the Northern Ireland Protocol?’ The Guardian (12 October 2021), available at: <https://www.theguardian.com/politics/2021>
David O’Dornan, ‘Border Control Posts on Alert as Sinister Graffiti Appears in Larne’ The Belfast Telegraph (22 January 2021)
European Commission, ‘Protocol on Ireland/Northern Ireland’, available at: <https://ec.europa.eu/info/strategy/relations-non-eu-countries/relations-united-kingdom/eu-uk-withdrawal-agreement/protocol-ireland-and-northern-ireland_en#october-2021-package>
European Commission, ‘Questions and Answers on the Commission’s Proposals on Bespoke Arrangements for the Benefit of Northern Ireland’, available at: <https://ec.europa.eu/commission/>
Her Majesty’s Government, ‘Northern Ireland Protocol: the Way Forward’ (CP 502, July 2021), available at: <https://assets.publishing.service.gov.uk/>
House of Lords European Affairs Sub-Committee on the Protocol on Ireland/Northern Ireland, Introductory Report (HL Paper 55, 29 July 2021), available at: <https://committees.parliament.uk>
Jennifer Rankin and Daniel Boffey, ‘What is the ‘New Model’ the EU is Proposing for Northern Ireland?’ The Guardian (13 October 2021), available at: <https://www.theguardian.com/politics>
Jonathan Deans, ‘The Internal Market Bill: a Specific and Limited Controversy’ (2021) 1 Judicial Review 48
Katy Hayward and David Phinnemore, ‘Article 16 of the Ireland/Northern Ireland Protocol Offers No ‘Quick Fix’’ LSE Brexit (11 January 2021), available at: <https://blogs.lse.ac.uk/brexit/2021/01/11>
Lisa O’Carroll, ‘Northern Irish Firms Hail EU Proposals to Resolve Brexit Protocol Row’ The Guardian (13 October 2021), available at: <https://www.theguardian.com/politics>
Lord Frost, Speech: Observations on the Present State of the Nation (Lisbon, 12 October 2021), available at: <https://www.gov.uk/government/speeches>
Michael Dougan, ‘So Long, Farewell, Auf Wiedersehen, Goodbye; The UK’s Withdrawal Package (2020) 57 Common Market Law Review 631
Penny Mordaunt, Statement to the House of Commons (UIN HCWS285, 14 September 2021), available at: <https://questions-statements.parliament.uk/written-statements/detail/2021-09-14/hcws285>
Peter Foster and Andy Bounds, ‘Can EU Offer on Northern Ireland Checks Resolve Brexit Dispute with UK? The Financial Times, available at: <https://www.ft.com/content/053c3a21-166a-4c2f-b6f3-335ba70ef6c8>
Peter Foster and George Parker, ‘UK Seeks New Legal Advice to Back Possible Changes to N Ireland Protocol’ The Financial Times (2 November 2021), available at: <https://www.ft.com/content/3f6c3f94-19a7-4bd3-81b5-eef78b4a2d7c?shareType=nongift>
Stephen Weatherill, ‘The Protocol on Ireland/Northern Ireland: Protecting The EU’s Internal Market At The Expense Of The UK’s’ (2020) 45(2) European Law Review 222
The Financial Times’ Editorial Board, ‘Making the Northern Ireland Protocol Work’ The Financial Times, available at: <https://www.ft.com/content/7fe1acf2-7c6c-4907-99f9-1271a697811f>
The Guardian Editorial, ‘The Guardian View on the Northern Ireland Protocol: Take the Deal’ The Guardian (13 October 2021), available at: <https://www.theguardian.com/nip>