In response to the government’s plan to revise the EU Northern Ireland Protocol after the UK government issued a bill proposing a unilateral amendment to the legal mechanism ensuring the smooth trade of goods between Great Britain, Northern Ireland and Europe Taking legal action against the UK. Refusing to renegotiate the protocol, the EU says the bill’s proposal would violate international law.
The protocol has long stirred up political and economic tensions, and the UK government has repeatedly sought to amend it. So, how did we end up here?
Belfast/Good Friday Agreement
In 1998, the Belfast/Good Friday Agreement ended decades of sectarian violence in Northern Ireland. The agreement highlighted that Northern Ireland was an integral part of the UK, but established its right to secede. This unique constitutional position was accompanied by simple multilevel governance: power-sharing institutions in the province and cooperation mechanisms between the North and South of Ireland, and between Britain and Ireland.
Although the text of the agreement does not include many explicit references to the European Union, the agreement was “based on a notion of common policies and interests” – effectively guaranteed by the UK and the Republic of Ireland’s EU membership. Following the Brexit referendum in August 2016, the Northern Ireland Executive urged the British Prime Minister to create a “tougher” border on the island of Ireland, which would “create an incentive for those who wish to undermine the peace process”.
At the start of Brexit talks, both the UK and the EU agreed that they should avoid a hard border. But Britain’s decision to leave the single market and the EU’s customs union raised a conundrum. How can the UK and EU keep the territorial border free of physical infrastructure without jeopardizing the integrity of the EU’s single market?
There were always two possible solutions to this problem. First, the UK as a whole can remain within the regulatory orbit of the EU – at least with respect to the free movement of goods. The November 2018 withdrawal agreement signed by Theresa May opted for this model. However, she was unable to persuade most of the lawmakers to support it, leading to her death.
Read more: Northern Ireland Protocol explainer: why the UK government’s plan to change it violates international law
Alternatively, the UK may recognize that Northern Ireland will have a closer relationship with the EU than the rest of the country. It was initially suggested by the European Union in February 2018, and eventually accepted in a revised form – by Boris Johnson’s administration in October 2019.
This led to the adoption of the current Northern Ireland Protocol, whose main objective is to avoid a hard border and protect the Good Friday Agreement. To do so, Northern Ireland legally remains within the UK customs territory. Despite this, a significant part of EU customs law and the free movement of goods applies to the region, as do EU law provisions relating to VAT and excise. In practice, this hybrid regime means that trade between the two coasts of the Irish Sea is no longer frictionless – particularly for goods that move from Great Britain to Northern Ireland.
So far, those inevitable and predictable fights have largely been addressed by allowing grace periods. For example, with regard to food, major retailers are not required to comply with all of the EU’s general certification requirements when importing goods from the rest of the UK.
In March 2021, the UK government unilaterally extended those grace periods. Three months later, in June 2021, he described significant amendments to the protocol he was seeking. These include removing the jurisdiction of the EU Court of Justice and establishing a dual regulatory regime for Northern Ireland, according to which goods will be allowed to circulate in the region if they meet UK or EU standards.
In October 2021, the European Union counter-proposed to reduce checks and controls between Great Britain and Northern Ireland without modifying the basic principles of the protocol.
Northern Ireland Protocol Bill
While some amendments related to the supply of medicines were secured, the UK and the EU have not been able to agree on how to address the issues raised by the protocol.
Most elected representatives live largely in Northern Ireland. In support of protocol. However, the federalist/loyalist parties do not support the protocol. This has caused political paralysis in the region, as the Democratic Unionist Party has blocked the functioning of power-sharing institutions, including the Northern Ireland Assembly and executive.
To explicitly deal with this, the UK government has now published a bill that effectively rewrites the protocol. This isn’t the first time he’s attempted to do this. Last time, the government acknowledged that such efforts would violate international law in a very specific and limited way.
This time, the proposed amendments modify the entire system except for a few provisions that regulate the rights of individuals, the common travel area and certain areas of north-south cooperation. It also gives grants to ministers vital forces To further amend the Protocol if they deem it fit.
The EU says it breaches international law, and has now launched new legal proceedings against the UK, in addition to reviving legal action that was suspended in March 2021 over a unilateral extension of the grace period.
Even if the gamble pays off, the DUP is appeased and an executive is formed, the parameters of how to keep the Irish territorial border frictionless will remain the same. With regard to the free movement of goods, either the whole of the UK or Northern Ireland will have to remain within the regulatory orbit of the European Union.
Meanwhile, such unilateral moves increase divisions and friction between different traditions in the region, making it even more difficult to reach agreement and settle disputes.
Nikos Scoutaris consulted the GUE/NGL Parliamentary Group of the European Parliament on Brexit-related issues during 2017-2020.