The Protocol Negotiations: Many Lanes Ahead in this Brexit Story

By Peter Donnelly

Complications of the Protocol. Photo: Getty Images

Three weeks have been and gone since reports, which were first muted in The Times, emerged that a settlement on the Northern Ireland Protocol had, after almost two years, been reached.

The negotiating teams for the EU Commission and the UK Government were said to be on the cusp of an agreement that would put to bed once, for all and forever, one of the last remaining sores of the Brexit process that had bedevilled the diplomacy of successive Prime Ministers which saw their shadows depart Westminster. The briefings, from both British and EU teams, had the rare distinction of being broadly coterminous.

The Protocol on Ireland/Northern Ireland constitutes a part of the 2020 Withdrawal Agreement and was given statutory sanction in domestic law by the EU (Withdrawal Agreement) Act. It allowed Northern Ireland, being unique as the only UK region to share a land border with an EU Member State, to remain effectively within the EU’s Single Market orbit for goods to avoid the reintroduction of border infrastructure on the Island. However, as this situation does not pertain in the remainder of the UK, goods from Great Britain are specifically subject to additional customs checks as under the Protocol arrangement such goods are treated as coming from outside the EU Market. A situation which has angered Unionists and saw stern pressure exerted on the DUP to relinquish its participation in the devolved institutions in February 2022 until there was a ‘rebalancing’ of NI’s Brexit arrangement which has been widely cited by Unionism as a ‘Union-dismantling’ instrument.

The parameters of a prospective agreement, aiming to resolve Brexit-related trading frictions, have been sketched for some time – the much vaunted ‘Red’ and ‘Green’ lane system for goods entering Northern Ireland from Great Britain has been front and centre of an arrangement which would reduce EU custom checks and formalities on goods crossing the Narrow Sea from Great Britain and entering in Northern Ireland. The issues of VAT and State Aid, which continue to be reserved to Brussels under the Protocol, would reportedly be within Westminster’s sovereign domain with the potential for some level of involvement for the local devolved Assembly over the continuance or introduction of EU rules in Northern Ireland. It may be however that a more fundamentally altered arrangement will emerge which may see the resumption of the theory of UK-wide regulatory alignment with the EU Single Market, which was at the fore of the withdrawal negotiations between 2017 and 2019. This was the basic premise of Theresa May’s thrice-rejected agreement which proposed that the entire United Kingdom would remain aligned to EU Single Market regulations for goods, in contrast to the current Protocol, which sees only Northern Ireland maintaining conformity with these EU formalities.

Yet in that time there has been a flurry of diplomatic activity which has included the Prime Minister, Rishi Sunak, making a flying visit to Northern Ireland, the Foreign Secretary and Northern Ireland Secretary travelling to and from Brussels with meetings with the EU Commission Vice President and lead Protocol negotiator Maroš Šefčovič. All seemingly to no immediate material political avail.

The inner squabbling, or what has been dubbed a ‘civil war,’ within the Conservative Party, which has long sacrificed unity in the name of defining the Brexit process or idea, have been vocally pronounced by Brexit pursuits European Research Group (ERG) which is reputed to include between 34 and 54 Conservative MPs, including Cabinet Ministers and has the backing of the DUP. Although the ERG’s membership has vastly decreased since its peak during Brexit’s pre-honeymoon phase, Mr. Sunak has arguably been coyed by the group’s purist flexing and posturing to such an extent that the proposed agreement has, for the last few weeks, been placed not in the departure lounge but delayed at the luggage check-in. The former Prime Minister, Boris Johnson, has weighed into this process which may well prick more cynical consciences into the the suspicion that Mr. Johnson’s intervention has more to do with deep-seated political machinations than for the welfare of Northern Ireland.

The latest briefings in The Daily Telegraph are that Rishi Sunak, fresh from an intense day of deliberations with Ursula von der Leyen, the EU Commission’s President, and leading lights in Northern Ireland’s business and economic sector, is preparing the ground for the agreement’s text to be laid before the House of Commons on Monday (27th). The Prime Minister has a multitude of hurdles to manoeuvre around and between before such an agreement attains a semblance of Parliamentary legitimacy – primarily amongst his own clan.

A brief survey of past negotiating strategies between the EU and UK is a necessary lens through which to analyse the latest phase of Brexit negotiations. This is certainly the case if one is to go
some way to comprehending today’s situation.

The EU has persistently bolstered its own disciplined negotiating protocol which it has demonstrated from the outset of the Brexit negotiations. This protocol is unity of the bloc’s Member States and, crucially, of purpose. Meanwhile the UK’s internal political wrangling over Brexit – a settlement over which was supposedly finalised in December 2020 – has advanced unabated; a factor which has not instilled the same degree of public confidence in the Government’s ability to present EU concessions as progress for the UK. The cold hard truth is that Brexit cannot be moulded into the form of a settlement within less than three years, never mind in a fortnight. It will be a process that will be subject to continuing review.

For the EU side, this British wrangling has been the weakness which has overarched the entire process from the advent of the 2016 Referendum. For the UK Government side Brussels’ behaviour cannot be overlooked having artfully worked up its finest bureaucratic institutions and instruments to frustrate the majority will of the British people. From the EU’s perspective the UK has frolicked with aggressive hard-Brexit diplomacy on one end of the negotiating scale to concessionary soundings which have accumulated, over almost seven years since the referendum’s advent, to show up the UK in a gloss which has produced a thoroughly groggy finish. It has been often stated but merits repeating that the diplomatic trust between Britain and its biggest neighbouring trading bloc has been shot.

This is why it is nothing short of perplexing that the Prime Minister has continued, over recent weeks to maintain an exterior of, what he may see as expedient but necessary constructive ambiguity. Constructiveness, however, is strictly divorced from this latest phase of ambiguity.

It is an ambiguity that is underwritten with uncertainty and the tendency to embed political fissures in the fabric of a society such as Northern Ireland which remains a fragile entity, even a quarter of a century from the seminal Good Friday Agreement.

It should be noted however that the patience of the electorate cannot be subject to a timeless suspension. For Sinn Féin’s base, which is now the principal political vehicle for Nationalists, the longer the DUP puts its shoulder to the barricade to Stormont, the increasingly prevalent Nationalist narrative emerging of Unionism refusing to concede the First Ministership to Nationalism will be harder for Unionism to counter. The Protocol controversy is an obstructionist façade, many Nationalists would counter. It will be this however that will become a powerful symbol for Nationalists, and the political propagandists who will try desperately to vocalise it, that it is a hopeless enterprise for Nationalism to attempt to find accommodation within the Union’s confines. Pastures new and green, for this base, will undoubtedly be on the horizon.

Meanwhile for the DUP, which is the leading electoral voice of Unionism, a Protocol agreement falling short of its 2021 ‘seven tests’ would represent a grave threat to the integrity of the Union and put them in the perilled position of sacrificing a key guarantee on the Acts of Union, namely Article 6 providing for freedom of trade between the region and Great Britain. What is more challenging for the DUP is that the Protocol has been adjudicated upon on three separate occasions within the UK’s courts – most recently in February in the Supreme Court – which upheld that the Protocol is lawful and constitutionally appropriate. That was the final authoritative statement on the Protocol’s compatibility with the constitutional law of the Union in 2023. Therefore in the longer term, for the wider electoral and civic Unionist community, the price of continuing a Stormont boycott is contradictory given their advocacy of the Union’s maintenance. When the institutions of the Union – namely the Assembly and Executive – are not being worked, who can genuinely say, in a prospective border poll campaign, that Northern Ireland’s status within the United Kingdom has been a politically functional entity?

To the region’s principal political actors it is a matter which any old Asquithian would bound to be proud, of wait and see. That is hardly an adequate posture for the elected representatives of any State or entity to adopt but that remains the situation. There will be many more lanes – red, green and a multitude of hues – yet to be traversed in this Brexit story. Rishi Sunak has said that “there’s unfinished business on Brexit and I want to get the job done.”

He will be hoping that the more elusive commodity of luck – more specifically the luck of the Irish – will go with him and keep him in mind over the next week.

Published by The Gown Queen's University Belfast

The Gown has provided respected, quality and independent student journalism from Queen's University, Belfast since its 1955 foundation, by Dr. Richard Herman. Having had an illustrious line of journalists and writers for almost 70 years, that proud history is extremely important to us. The Gown is consistent in its quest to seek and develop the talents of aspiring student writers.

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