The EU is taking legal action against the UK in response to the government’s plan to revise the Northern Ireland protocol after the UK government released a bill proposing to unilaterally amend the legal mechanism that ensures smooth trade of goods between Great Britain, Northern Ireland and Europe. Refusing to renegotiate the protocol, the EU says what the bill proposes would breach international law.
The protocol has stirred up longstanding political and economic tensions, and the UK government has repeatedly sought to amend it. So, how did we end up here?
The Belfast/Good Friday agreement
In 1998, the Belfast/Good Friday agreement put an end to the sectarian violence that had plagued Northern Ireland for decades. This agreement highlighted that Northern Ireland is an integral part of the UK but established its right to secede. This unique constitutional status was accompanied by ingenious 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 EU, the agreement “was premised on the assumption of common policies and interests” – effectively guaranteed by the UK and the Republic of Ireland’s EU membership. After the Brexit referendum in August 2016, the Northern Ireland executive urged the British prime minister against creating a “hard” border on the island of Ireland, which would “create an incentive for those who would wish to undermine the peace process”.
At the start of Brexit negotiations, both the UK and the EU agreed that they should avoid a hard border. But the UK’s decision to leave the single market and the EU customs union led to a conundrum. How could the UK and the EU keep the territorial border free of physical infrastructure without jeopardising the integrity of the EU single market?
There were always two possible solutions to this problem. First, the UK as a whole could remain within the EU’s regulatory orbit – at least with regard to free movement of goods. The November 2018 withdrawal agreement signed by Theresa May opted for this model. However, she was unable to convince the majority of MPs to support it, leading to her demise.
Alternatively, the UK could accept that Northern Ireland would have a closer relationship with the EU than the rest of the country. This was initially suggested by the EU in February 2018, and ultimately accepted – albeit 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 that, Northern Ireland remains legally within the UK customs territory. Despite this, EU customs legislation and a significant part of the free movement of goods continue to apply to the region, as do EU law provisions concerning VAT and excise. In practice, this hybrid regime means that trade between the two shores of the Irish Sea is not frictionless any more – especially for goods that move from Great Britain to Northern Ireland.
So far, those unavoidable and predictable frictions have been largely addressed by allowing for grace periods. With regard to food, for instance, major retailers do not need to comply with all the EU’s usual 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, they described the significant amendments to the protocol they were seeking. Those included removing the jurisdiction of the EU Court of Justice and establishing a dual regulatory regime for Northern Ireland, according to which goods would be allowed to circulate in the region if they met either UK or EU standards.
In October 2021, the EU counter-proposed reducing checks and controls between Great Britain and Northern Ireland without revising the fundamentals of the protocol.
The Northern Ireland protocol bill
Although some amendments concerning the supply of medicines were secured, the UK and EU have not managed to agree on how to solve the issues raised by the protocol.
The majority of elected representatives in Northern Ireland remain broadly in support of the protocol. However, unionist/loyalist parties do not back the protocol. This has led to political paralysis in the region, as the Democratic Unionist Party has blocked the functioning of the power-sharing institutions, including the Northern Ireland assembly and executive.
To deal ostensibly with that, the UK government has now published a bill that effectively rewrites the protocol. This is not the first time it has attempted to do so. The previous time, the government admitted that such effort would amount to a breach of international law in a very specific and limited way.
This time, the proposed amendments revise the whole arrangement with the exception of some provisions that regulate the rights of individuals, the common travel area and some areas of north-south cooperation. It also grants ministers significant powers to further amend the protocol if they consider it appropriate.
The EU says this breaks international law, and has now launched new legal proceedings against the UK, in addition to reviving legal action it had suspended in March 2021 over the unilateral extension of the grace periods.
Even if the gamble pays out, the DUP is appeased and an executive is formed, the parameters of how to keep the Irish territorial border frictionless will remain the same. Either the UK as a whole or Northern Ireland will have to remain in the regulatory orbit of the EU with regard to the free movement of goods.
In the meantime, such unilateral moves increase the divide and the frictions between the different traditions in the region, making it even more difficult to find compromise and resolve the dispute.