The recent article by Lord Frost and Northern Secretary Brandon Lewis in The Irish Times has understandably created a stir. It argues that the EU’s desire for implementation of the Northern Protocol represented a ‘a theological approach that is frozen in time and does not deal with the reality that now exists’.
Frost and Lewis list a number of problems from diversion of trade to opposition to the Protocol within Northern Ireland. They conclude that ‘a seriously unbalanced situation is developing’ and the Protocol ‘could corrode the link between Northern Ireland and rest of the UK’.
There is an obvious problem for the credibility of the United Kingdom government in arguing that the reality of today is so different from the situation that applied when they concluded the Brexit deal less than a year ago.
However, this is not the biggest problem with the British government’s approach.
The Protocol does not exist in isolation. It is one element of a broader Brexit settlement between the UK and the EU. What Frost and Lewis fail to acknowledge is that as one part of a delicately-balanced package deal, the Protocol cannot be changed without considering the impact of such changes on the overall package
It is worth remembering that the Protocol resulted from a deliberate change of policy on the part of the UK government. While Theresa May’s policy had been to soften Brexit in order to maintain the economic unity of the United Kingdom, the Johnson government made the opposite choice. It chose to pursue a hard form of Brexit under which the UK would be free to depart from EU rules in almost all areas.
However, because the EU had made the avoidance of physical infrastructure on the border between Northern Ireland and the Republic a condition of any deal, this mean that, in order to get a deal, the UK agreed that for the purposes of trade in goods, Northern Ireland would remain subject to EU law.
The Protocol and the emergence of a border in relation to trade in goods between Northern Ireland and Great Britain therefore resulted from the priorities of the UK government. London wanted a deal with the EU and a hard Brexit more than it wanted to preserve the economic unity of the United Kingdom.
The Protocol represented a series of compromises. The UK compromised on the economic unity of the UK in order to get a hard Brexit. The EU compromised on the integrity of the Single Market (the Protocol allows UK rather the EU officials to police the external border of the Single Market) in order to avoid the emergence of a physical border in Ireland.
As importantly, the Protocol was also part of a wider package deal. By choosing a hard form of Brexit, the UK government acted to make the relationship between Northern Ireland and the Republic more distant in significant ways.
Brexit means that EU law on freedom to provide services no longer acts to prevent the erection of barriers to Northern companies seeking to provide services into the EU and vice versa. The end of free movement of people means that for non-Irish EU citizens living and working in Ireland, the option of moving to Northern Ireland is significantly more difficult than before, complicating life for cross border businesses.
This is in addition to the broader legal and administrative changes that Brexit brings that will inevitably bring greater distance between the Republic and the North. The European Court of Justice caselaw requires that the entirety of national law be interpreted in the light of the obligations of EU law. With that obligation no longer binding the UK the differences between UK and Irish law will grow. Rules around professional bodies like lawyers, accountants and doctors will be influenced by EU law in Ireland but not in the UK meaning that the previous tendency to ‘cut and paste’ British ways of doing things will be less feasible.
Thus, from the perspective of the two communities in Northern Ireland, the overall Brexit package involves a series of changes. Some of these changes make Northern Ireland more distant from the Republic. Others, such as the Protocol, compensate for this by implementing compensatory measures around goods that keep the North aligned with the Republic and the EU in other ways.
By focusing on the Protocol in isolation, the UK government is attempting to focus on the part of an overall package deal that goes against its preferences (the Protocol) while leaving untouched the parts that favour its preferences (the hard Brexit that distances Northern Ireland from the Republic and the EU).
Thus, the UK authorities rule out ideas that would lessen Northern Ireland-Great Britain barriers such as following aligning with EU rules on animal and plant health on the basis that having to follow EU rules in any sector is inconsistent with their commitment to a hard Brexit and insist that the Protocol alone must be changed.
The Protocol has its difficulties. The two sides will need to co-operate to make it work. However, good faith proposals to change it must recognise that the Protocol is one part of a delicately-balanced overall package. Any proposed changes cannot relate to the Protocol alone but must take account of the wider context of the hard Brexit pursued by the UK and the increased disruption to the North-South relationship that that hard Brexit involves.
Ronan McCrea is professor of European and Constitutional law at University College London