The UK government must not miss this opportunity to resolve issues with the Northern Ireland Protocol
Northern Ireland is a society that only works through sharing and interdependence. Brexit with its often-simplistic approach to complex situations and stark choices was always going to pose particular challenges to our region, including upsetting the delicate balance of the Good Friday Agreement.
Whilst the Northern Ireland Protocol seems to be a perpetual source of controversy, it must be understood as the product of Brexit, especially a hard Brexit.
The Protocol is an attempt to square an almost impossible circle. In order to avoid a hard border on the island of Ireland, and to minimise the damage to the Good Friday Agreement, Northern Ireland remains in the single market. Similarly, whilst our region is part of the UK’s customs zone, the interface is managed down the Irish Sea.
Over its entire history, Northern Ireland has done things somewhat differently from the rest of the UK. The Protocol builds on those precedents. Northern Ireland continues to be politically and constitutionally part of the UK, albeit with the provisions of the Good Friday Agreement.
Short of the UK re-joining the single market and customs union, there is no real plausible alternative to the Protocol. The challenge is to maximise mitigations and flexibilities in its application, primarily through building trust with the European Union.
The latest redline over the jurisdiction of the ECJ does not reflect any concerns that have been expressed by businesses throughout the Brexit process
Even though the Protocol was freely negotiated and agreed by Boris Johnson’s government and subsequently endorsed by parliament, there is growing evidence that the commitments made were not done so sincerely. With efforts to unpick it ranging from the Internal Market Bill, repeated threats to trigger Article 16, the July 2021 Command Paper and most recently the erection of the continued partial application of the jurisdiction of the European Court of Justice to Northern Ireland.
Some of this reflects a tension between those who cling to an outmoded notion of sovereignty and want to treat Northern Ireland exactly the same as the rest of the UK, and the practical requirements of managing the challenges of Brexit and the real-world practical implications for our regions.
Consent in Northern Ireland only strictly applies to constitutional change under the Good Friday Agreement. But for those throwing round questions regarding consent for the Protocol, that leads to the point that Brexit itself was imposed on Northern Ireland. And if Northern Ireland falls under a UK-wide decision, then it must be pointed out that the Protocol was a democratic UK-wide decision too.
For those claiming that a majoritarian decision to renew the Protocol runs contrary to the cross-community mechanisms of Good Friday Agreement, it can be argued that a different proposition could have framed that a cross-community vote was required to exit the Protocol after four years. How the starting point is framed is therefore significant, but the government wanted the Assembly to renew the Protocol for the optics rather than continuing unless revoked.
The proposals this month from the European Union covering medicines, food, customs, governance and oversight have the potential to address many of the practical issues raised by Northern Ireland businesses and others.
The government and opponents of the Protocol have the opportunity to climbdown from unrealistic and undeliverable demands, and provide much needed stability and certainty, both for the business community and the political structures.
By contrast, the latest redline over the jurisdiction of the European Court of Justice (ECJ) does not reflect any concerns that have been expressed by businesses throughout the Brexit process. Indeed, it is central that Northern Ireland continues to have direct access to the single market for goods.
It would be outrageous and destructive for a potential breakthrough around the Protocol to be scuppered by what many will regard as an arcane matter with minimal impact on the challenges faced at present.
If the government passes up this moment and instead seeks further confrontation, including triggering Article 16, this risks economic tension with the European Union and deteriorating the relationship with the Biden Administration.
Stephen Farry is the Alliance Party MP for North Down and Deputy Leader of the Alliance Party.
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