Ireland’s position in NI protocol row is delicate and difficult

Before Boris Johnson became prime minister, his former editor Max Hastings offered an assessment: "He would not recognise the truth if confronted by it in an identity parade . . . His cowardice [is] reflected in a willingness to tell any audience whatever he thinks is most likely to please, heedless of the inevitability of its contradiction an hour later . . . His premiership will almost certainly reveal a contempt for rules, precedent, order and stability."

Hastings is not just an excellent historian, but a soothsayer.

Nowhere have Johnson's flaws been more evident than on the Northern Ireland protocol. Despite their officials and independent trade experts telling them otherwise, he and Brandon Lewis brazenly denied that it would require Irish Sea checks. Lewis recently admitted what he claimed in January "has not aged well". Johnson has encouraged unrealistic unionist expectations that the protocol's essentials can be abolished. Important elements have not yet been implemented.

Theresa May and her team, and parliament, are blamed for Johnson’s weak negotiating position in 2019. There may be an element of truth in this – but he signed up to a deal he told the public was “fantastic” and “oven-ready”. Now he says it cannot work. His new proposals are based on concepts rejected previously which have no chance of being accepted now, for which full mutual confidence would be a precondition, and which would cast aside judicial and administrative safeguards. There is a clear threat to suspend the protocol if he does not get his way.

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Trust in this British government's good faith, never high, is now minimal across the EU, and on all sides in Northern Ireland.

Nowhere have Johnson's flaws been more evident than on the Northern Ireland protocol

Brexit itself is of course the original sin. It was bound to have unpalatable consequences for Northern Ireland. The DUP’s folly in supporting Brexit, rejection of May’s efforts to find a softer, UK-wide solution and gullibility in trusting Johnson do not make an easy object of sympathy.

Unhappy unionists

However, we should stand back and take a deep breath. Unionist unhappiness is real and in its own terms understandable. All unionists in the Assembly, including former Remainers, strongly oppose the protocol. It is palpably disrupting commerce between Britain and Northern Ireland, as again made clear this week by the six supermarket chains which dominate food retailing in Northern Ireland. There are other high-profile impacts, from pets to pharmaceuticals. Surveys indicate that while a clear majority of northern businesses pragmatically accept that the protocol is here to stay, they would strongly like to see changes in its application. Its real potential to encourage investment would not be damaged by such changes.

The significant increase in exports from the Republic to the North is rational and welcome from an all-island perspective, but plays to the narrative that the protocol is intended to achieve an economic united Ireland as a prelude to a political one.

The recent court decision that the protocol overrides, albeit lawfully, the Act of Union’s provision that commerce between the parts of the UK should be on an “equal footing” was a significant psychological blow. The absence of any Northern Ireland input into future EU laws which will bind it infringes upon a basic democratic principle.

So there are real problems. Not all can be solved, but they can be mitigated.

The search for solutions should be based on an acknowledgment of some fundamentals. The security of the single market, and of Ireland’s place within it, is non-negotiable.

Protecting the Belfast Agreement in all its aspects is not served by further division within Northern Ireland, or by tensions between unionists and the Irish Government and between Dublin and London.

It is not realistic to expect the EU to throw open the protocol for renegotiation. But – recognising that the EU has already shown flexibility – one might ask if its operation can be made less onerous. Must the movement of goods between Britain and Northern Ireland be regulated in quite the same way as trade between a third country and the EU? Critically, the political and constitutional contexts are very different. So is the pattern of trade, which largely involves shipping quite small mixed loads from British distribution centres, leading to a vast number of checks. And given the size and geography of Northern Ireland, major leakage of goods into the single market is surely not an unmanageable threat. A more risk-based approach could reduce the burden of regulation. Some legal changes to current rules might be required, but that cannot be an insurmountable obstacle.

Middle ground

Involving Northern Ireland in the preparation of relevant EU legislation would close a democratic deficit. The consultative arrangements which apply to Norway and other European Economic Area members could offer a model.

On the other side, the British government must be open to a veterinary agreement which could, at a stroke, greatly reduce the scale of current problems. Blanket assertions that sovereignty prevents this are unreasonably ideological. There must be a middle ground between being permanently locked into EU standards and a “trust us” system of equivalence. Even a temporary arrangement would buy time.

Given the size and geography of Northern Ireland, major leakage of goods into the single market is surely not an unmanageable threat

Ireland’s position is difficult and delicate. Membership of the single market is a pillar of our economy, while promoting stability in Northern Ireland is a key national interest. The collapse of the protocol would put possible checks and controls between North and South back on the table. So finding a modus vivendi is imperative.

We cannot be expected to sell the British case to the EU partners who have supported us so loyally. Nor, as it now stands, is it remotely saleable. But we know and care about Northern Ireland and can legitimately interpret the concerns and perceptions of all sides, supporting serious and creative engagement. Micheál Martin and Simon Coveney are wisely taking this measured approach.

It may well be naive to think that Johnson is in the market for achievable solutions. Maybe he calculates that the EU will not dare to apply sanctions, or alternatively that provoking it to do so will serve his political interests. Maybe he thinks the US will not in the end follow through on its warnings. But he is the elected leader of the UK and the only prime minister available to deal with. For now the EU loses nothing by maintaining its strategic patience and giving him a further chance to confound his legion of doubters.

Rory Montgomery is a former Irish permanent representative to the EU and second secretary general at the Department of the Taoiseach and the Department of Foreign Affairs. He is an honorary professor at the Mitchell Institute, Queen’s University Belfast