A view on the Northern Ireland Protocol from Germany…

Susanne Ditzen (SDfromBerlin in the comments), is a German fan of Slugger O’Toole. She has no formal qualifications to comment on Northern Ireland except for knowing what it means to cross an international border in order to visit Grandma…
To me personally, the most remarkable thing about the Protocol on Ireland/Northern Ireland (NIP) is still that exists at all, that 28 countries negotiated and agreed on an arrangement so unusual in rights and obligations with respect to handling an international border, and that these Brexit negotiations concluded with any kind of agreement between the EU and the UK which permanently maintains the open border between Northern Ireland and Ireland regardless of how the UK/EU relations develop. In my view, it is a compromise necessitated by the UK’s wish for a hard Brexit while wanting to maintain the Good Friday/Belfast Agreement (GFA) and required unusual goodwill of both Ireland and the EU. The result is that Northern Ireland has access to the EU Single Market (SM) quite similar to Switzerland, but without contributions or Freedom of Movement. The border arrangements differ from Switzerland’s as the customs and regulatory border with the EU is completely without checks whereas an internal border has been hardened towards Great Britain.
The Irish government has been very consistent in doing everything they can to preserve the open border before and after the Brexit referendum. Of course, the Good Friday/Belfast Agreement (GFA) makes it also their treaty obligation, not only the UK’s, and the Irish government presumably does not want a “normal” border as amongst other considerations, it would be very difficult to enforce and immensely costly. But the treaty they signed (and for that had to change their constitution) precludes this border. So they held the UK to that treaty and gained the support of all 26 EU member states to do so. This is unquestionably the success of the Irish government(s) and the excellent Irish diplomacy which had prepared for Brexit before the referendum. They briefed the 26 other EU member states, educated them on the Good Friday/Belfast Agreement after the referendum. They won all member states’ backing to make it an EU priority to negotiate the continuation of keeping the border in Ireland open, regardless of the type of Brexit the UK would eventually choose.
I can’t say that I have any similar admiration for the last three UK governments on the same subject as it appeared to be an imposition that they should have any concept for keeping the border in Ireland open while having the Brexit of their choice. As Northern Ireland is a part of the UK, IMO it should have been the UK’s government’s foremost responsibility to find a Brexit that allowed for the commitments the UK made with the GFA to continue. Instead, the UK government often seemed to completely disregard their responsibility for the wellbeing of their own citizens in Northern Ireland and framed the problem as one of the EU wanting to constrain the UK, to keep it under some kind of control. This never made sense to me. Why would anyone in the EU except for Ireland want to complicate the relationship with the UK by a treaty construct as difficult as the NIP? I can’t see any other motives than supporting their fellow member state Ireland and the general agreement of the aims of the EU to promote peace and the well-being of its citizens. (For many of us in the EU with land borders to our neighbours, the lack of border controls is a very practical but also emotional benefit for our well-being.)
I think that it also generally isn’t appreciated in the UK that the NIP is quite generous to the UK or at least Northern Ireland by both Ireland and the other EU member states. Ireland now allows Northern Irish competitors to their own businesses free access to their market while not having the same advantage of access to the UK’s market.
The other EU member states signed up to the NIP knowing very well that they had only disadvantages from it. The EU compromised by doing something they have never done before which was to allow a third country to perform checks on its behalf. This is risky for both the EU and Ireland. It is not clear to me, for example, who will be held responsible if the UK does not enforce SM rules for goods imported to Northern Ireland and they end up in the SM. Ireland didn’t receive any special exemption to the normal rules of a EU country wrt its border or to the enforcement of SM rules. So it might be fined for millions or billions if Northern Ireland becomes a route for goods not compliant to SM rules. Or perhaps the EU commission will be held responsible instead for signing the NIP. Who knows? It will be for the ECJ to decide.
Also, all member states, some smaller and often poorer than Northern Ireland, pay their share for the maintenance of the common market, for the institutions and agencies whereas the UK for Northern Ireland’s participation does not. Except for Ireland, the NIP will even in the best case lead to additional costs for endless negotiations and allowing a “freebie” on EU market access for goods.
The EU member states also accepted some responsibility for the well-being of the people in Northern Ireland. They signed in the NIP:
“DETERMINED that the application of this Protocol should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland”
This had the consequence, for example, that the EU changed its law to allow medicines from GB to Northern Ireland. That’s, of course, quite unusual for the EU, to change its laws for a third country without having any advantage in exchange. I think that taking this responsibility seriously is necessary but will have uncomfortable and unforeseeable consequences.
So there is no advantage to 26 EU member states wrt to the NIP. None at all. Ireland has spent years and immense diplomatic effort on mitigating the consequences of Brexit for all people living on the island of Ireland. Most EU member states (probably including Ireland) have gone far out of their comfort zone in order to maintain the GFA in the face of the UK’s wish for a hard Brexit.
Does anyone in the UK really appreciate that the NIP is a compromise demanding far more of the EU and its member states than a Withdrawal Agreement with any other EU member state wanting to leave?
I rather think not.
The one great disadvantage I see with Ireland’s and then the EU’s earliest strategy is that there is no ownership for the Northern Ireland Protocol in the UK, no party that fully accepts the UK’s responsibility for concluding the NIP in order to get the Brexit they wanted and communicates this to the UK citizens. Having the border in the Irish sea was the openly communicated preferred EU solution to the problem by the end of 2017 when the UK was still arguing with itself whether any solution was actually necessary and whether they actually had a responsibility to negotiate this outside a trade agreement. The EU offered this as a solution so now, no-one in the UK appears to have a problem with assigning the responsibility for mitigating any perceived difficulty with the implementation to the EU. I can understand this from the parties in Northern Ireland as they had little or no input in the negotiations. But for the UK government, the Tory party, and the Labour party, I see this as abandoning their responsibility towards their citizens in Northern Ireland, for the governing party for doing it, for Labour for not spelling out reality each time the government lied.
I can’t see this attitude in the UK changing soon. The NIP appears to be seen not as a compromise but as an imposition. It will remain an open sore for many in the UK perhaps simply because the UK parties failed to acknowledge their responsibility and cannot overcome the humiliation of grudgingly having to accept that the Brexit referendum did not “free” them from all treaty obligations.
I still think that the NIP will be argued over and disputed for years, but eventually implemented and that it will stand, probably as long as the GFA. As it contains no means to be unilaterally terminated by either the UK or the EU, all talk about “scrapping” it is just that, talk. The UK’s newest miracle solution to override it by domestic legislation appears as a very desperate attempt to test the EU’s resolve. But until now, during all the painful Brexit negotiations, for all the “courageous” Brexiter calls for a “no-deal” Brexit, the UK governments have always backed down when it came too close. So this newest or perhaps a future UK government will back down eventually and scrap the NIP bill, perhaps only after the EU gives notice to the TCA but very probably before the TCA actually ends.
When Ireland and the EU accepted in their negotiation with Mr Johnson that the Northern Ireland Assembly should vote every four years (or eight, see Article 18) on whether to continue Articles 5 to 10 which enable Northern Ireland’s participation in the Single Market for goods, I was very surprised and rather taken aback. To raise the uncertainty of overthrowing the only (known) workable permanent solution that anyone had found for the open border for a Brexited UK and to give this power to an institution which then would have no role in the subsequent new negotiation between the UK and the EU, appeared risky to Ireland’s and the EU’s interests.
Now, I am very glad that they did agree, that the responsibility for the decision to continue or end the NIP lies with the people most affected by it and that neither the UK government nor the EU nor the Irish government can do anything unilaterally to change that. There are 27 hands extended in friendship towards Northern Ireland with the NIP, offering compromise. My hope is that just as the Good Friday/Belfast Agreement was accepted as a messy but in practice mostly successful compromise, the NIP will remain accepted in Northern Ireland as imperfect, and a necessary and hopefully successful compromise.

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