Analysis: the Northern Ireland protocol is a delicate balancing act and requires a robust oversight framework

By Darren Litter, Queen's University Belfast

Back in June, Robert Ramsay said that the EU would work with NI on the Northern Ireland Protocol, but would ultimately have the realpolitik view that "you’re bloody lucky to be in the Single Market at all". Ramsay was the principal private secretary to Northern Ireland's last prime minister, Brian Faulkner and would go on to become a senior EU official.

Though it is largely absent from political unionism's grievance-based response - something that has never served it well historically - the Protocol is a remarkable opportunity. One Harvard-trained economist projected that it could mean Northern Ireland becomes the most competitive region of the United Kingdom. It is likely a sense of Great Britain elitism arising from this - rather than any deep affinity with NI, as unionism would hope - that accounts for renewed UK action over the Protocol.Brexit minister Lord Frost has openly expressed concern at how rapidly Northern Ireland business is pivoting toward Ireland and the EU for supply solutions.

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From RTÉ's Brexit Republic podcast, RTÉ Europe Editor Tony Connelly, London Correspondent Seán Whelan and Deputy Foreign Editor Colm Ó Mongáin round up the latest twists and turns in Brexitland

The EU has listened to stakeholders and senior British officials are reportedly being positively "taken aback" by its proposal to not apply 80% of the checks that were to be implemented following the grace period. This latest move by the EU ostensibly resolved the British government's core problem with its own joint innovation: Frost previously said the issue was the EU's "excessively rigid" adherence to the Protocol's terms. But before European Commission vice-president Maroš Šefčovič even had a chance to announce the EU's proposed solutions, Frost shifted the goalposts, insisting that the formal role of the EU Court of Justice created by the EU-UK Protocol is a key obstacle to a "durable settlement".

The EU expectedly responded in terms of "impossibility", as the Protocol is a delicate balancing act between two sacrosanct commitments - the Northern Irish peace process, and the EU Single Market - and therefore requires a robust oversight framework which recognises that the Protocol is primarily an EU concession. The EU is also aware that it is dealing with an actor in the context of the current British government that many - not least some of the British state's finest public servants - have charged with infringing upon its own constitutional obligation to be compliant with international rules-based order. This had been repeatedly suggested by the Brexit context - whether the December 2020 UK Internal Market Act overriding parts of the EU-UK Withdrawal Agreement; or the seeming 'agree it/ditch it' approach to the Protocol - but is a trend arguably evidenced in elements of the British government's conduct more broadly.

For example, Prof Elizabeth Wilmhurst of Chatham House has expressed this in relation to the Operations (Service Personnel and Veterans) Bill (now Act). This legislation could breach the UK's obligation to prosecute serious international crimes through its provision for a "presumption against prosecution" against British service persons whose acts cannot be deemed "exceptional".

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From RTÉ Radio 1's Today with Claire Byrne, European Commissioner Mairead McGuinness on the UK's latest battle with the EU over the Northern Ireland protocol

Brexit, as Dr Nicholas Wright points out, has been the foremost contributor in this regard. It is a shift that will undoubtedly be of concern to the non-Johnsonian sections of the British state (which though for now relatively quiet, are much more considerable in nature), as the pre-Brexit 2015 Strategic Defence and Security Review identified, declining international rules-based order as one of the most serious threats facing the UK. The Irish government, for its part, has been restrained in calling this behaviour out, and it is only last week, after EU constructiveness was met with yet more UK belligerence, that Tánaiste Leo Varadkar warned that this was how the British government could come to be seen internationally.

The EU cannot allow itself to fall victim to a government strategically intent on asserting sovereign state prerogative. The role of the Court of Justice in the Protocol under Article 12(4) is the critical safeguard against this, forming a sort of arbiter of last resort where the EU-UK Joint Committee fails to achieve resolution. By its own admission, the British government agreed to the Court of Justice's oversight function, rather vaguely claiming in its July command paper that it only did so because of the "very specific circumstances" of the Protocol negotiation. Irrespective of why it was that the UK did sign up to this, the outworking is that the UK is bound in principle to the legitimacy of the Court's decisions, if and when the British government again unilaterally departs from the Protocol; and including, crucially, in the scenario that it does indeed decide to trigger Article 16.

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From RTÉ One's Nine News, EU says changes to NI Protocol will cut checks by 80%

The British government is right - albeit not for the reasons it would say - to state that that the inclusion of a role for the Court of Justice was underpinned by a very particular set of circumstances. These are that a binational part of a third country (Nothern Ireland) - which shares a land border with a member state that has a formal role in that region (Ireland) - has been afforded de-facto Single Market status, in accordance with the expressed will (British, Irish, European, and American) that an open border be kept on the island of Ireland to preserve the conditions enabling the implementation of the 1998 Belfast/Good Friday Agreement.

The major concession thus comes from the 27 EU member states and it is consequently only logical that its Court of Justice - which interprets and enforces the rules of the Single Market - is empowered to ensure there is no undermining of this crowning EU achievement (and, by her own estimation, former British Prime Minister Margaret Thatcher's).

The careless words of individuals have tended to have a grave impact in Northern Ireland.

There are those who will cite government briefings to sympathetic publications such as the Telegraph, arguing that the Court of Justice "red-line" is just the opening play of a renegotiation effort that the British government accepts will culminate with the fundamentals of the existing Protocol remaining unaltered. However, it is this never-ending gamesmanship that is causing much of the difficulties in the EU-UK relationship.

The EU banks on "say what you mean" (something Lord Frost himself has said), and it is widely understood - as the EU's considered statements demonstrate - that the careless words of individuals have tended to have a grave impact in Northern Ireland. Knowing that there will be life after Boris Johnson, the EU will remain open to a consensual outcome in this latest Brexit saga, but the Court of Justice (even if it means being behind an additional layer á la the Swiss model ) will be non-negotiable. There is every indication that in its absence, the British government will attempt to make the Protocol not worth the paper it's written on.

Darren Litter is a PhD Candidate in the School of History, Anthropology, Philosophy and Politics at Queen's University Belfast.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ