The Northern Ireland Protocol Impasse
This week on the podcast I had the opportunity to discuss the legal status of the Northern Ireland Protocol. The Supreme Court proceedings came about after a number of leading unionist politicians questioned the lawfulness of the agreement between the UK and the EU.
One of the key arguments was that the Protocol should not be allowed to stand because it conflicts with Article VI of the Acts of Union 1800. That provision basically states that Great Britain and Northern Ireland should be on an equal footing when it comes to trade. The Northern Ireland Protocol fails to achieve this by establishing a separate regime in Northern Ireland compared to the rest of the UK.
We examine that argument in detail on the podcast but it is easy to see why it is the unionists who get most upset by this situation. For a start, it means that Northern Ireland is still mostly subject to laws and rules that are devised in Brussels but they have no voice within the Commission or the European Parliament. That democratic deficit is bad enough but it also means that Brexiteers in the North do not really feel like Brexit has been achieved in that region.
More importantly though, unionists feels like the Protocol undermines the very idea of a United Kingdom because it creates this metaphorical border down the Irish Sea. That is what was at the heart of the argument when the claimants referenced the Acts of Union as they made their case to the court.
The Justices were unpersuaded but the Northern Ireland Protocol could still be altered even if it is not scrapped altogether. That is what Rishi Sunak has been working on with counterparts in the EU and the prime minister was already hoping to make a grand announcement.
If and when that happens it is unlikely that unionists will be persuaded. Any change will likely be on the technical side and seek to make the existing arrangement work more fluidly rather than change it in any fundamental way. The democratic deficit will almost certainly remain, as will the perceived threat to the status of the UK. In truth the best that Belfast can hope for is to be part of the discussions when EU laws that affect the region are made but that agreement is unlikely to include any sort of veto. Northern Irish politicians will have a seat at the table but with no cards to play.
Should Sunak reach an agreement then it is unlikely that he will receive support from the Democratic Unionist Party (DUP) and even less likely that he will get votes from a large number of his own backbench MPs. Former prime minister Boris Johnson and his allies would happily scrap the Protocol and even tried to enact the Northern Ireland Protocol Bill that would unilaterally override parts of the agreement. That would be a breach of international law but such inconveniences are of little consequence to hardliners.
From the EU’s perspective, their negotiating team would want that Bill to be scrapped. Its very existence as a Bill in Parliament is an affront to meaningful and well-intended negotiations between the two sides. That puts Sunak in a difficult position because the DUP have said that they will not return to power-sharing in Belfast until the Bill is passed.
The Protocol is here to stay and it is a welcome step from the government that they are sitting around the table with the EU, trying to make it work in a more effective way. Unionists were halted in the legal arena by the Supreme Court but in the political arena they have tripped themselves up.