Brexit and the Northern Ireland protocol: What happens next?

Within Belfast, Brussels, London and Dublin, politicians get to grips with the protocol problem

The return of Brexit to the political agenda and the row over the Northern Ireland protocol has thrown the delicate quadrangular relationships between Brussels, London, Dublin and Belfast into disarray.

Uncertainty and apprehension about the unravelling of the arrangement – and what it will mean for the future of Northern Ireland – is everywhere.

But what happens now? And how are the next steps seen in the four capitals where politicians and officials are grappling with the problem?

London

In London, preparations are under way for the next move.

The British government is expected to introduce legislation in the House of Commons next month but some important details about what exactly is being proposed remain unclear. Foreign secretary Liz Truss told MPs this week that the government would "consult businesses and people in Northern Ireland as our proposals are put forward" and that the aim was not to scrap the protocol completely.

The proposed Bill would retain Britain’s commitment to the Common Travel Area, the Single Electricity Market and North-South co-operation. But it would replace the system of checks and controls for goods moving from Britain to Northern Ireland with a new green channel for anything businesses say is destined to remain there.

Goods in Northern Ireland would no longer be required to comply with EU regulatory standards if they followed British regulations and London would be able to set VAT rates in the North without reference to the European Commission.

The European Court of Justice (ECJ) would have no role in arbitrating disputes over the arrangements, but Truss says Britain will protect the EU single market by introducing penalties for those who break the changed rules.

What is not yet certain is whether the Bill would itself rip out the central elements of the protocol or if it would enable ministers to do so. Before it is introduced, the government will publish a statement setting out why it believes it is legally entitled to renege on the protocol, which is part of an international treaty.

UK attorney general Suella Braverman says she will not publish the government's full legal advice, which the Financial Times reported to have come from a former lawyer for Donald Trump.

“I think aspersions being cast on lawyers are actually very serious attacks on their professional reputations, when lawyers actually in private practice, they wouldn’t necessarily have a right to reply, and somehow trying to malign them is actually quite dangerous,” she told Conservative Home.

Truss says the British government is willing to negotiate with the EU while the Bill is moving through parliament, a process that could take a year. A number of Conservative MPs are likely to rebel but government whips are confident that the Commons would approve it.

The House of Lords could be trickier, not least because it is teeming with former judges and diplomats, many of whom opposed the government’s earlier attempt to renege on the withdrawal agreement with the Internal Market Bill. If the peers were determined in their opposition, they could block the Bill and, under the Parliament Act, the Commons would have to wait a year before passing it without the Lords’ approval.

Belfast

The most pressing question in Belfast is around the restoration of the powersharing institutions.

The functioning or otherwise of the Northern Assembly and Executive has been firmly linked to the protocol – part of the Brexit withdrawal agreement – by the DUP, which blocked the appointment of a speaker in the absence of "decisive action" on the issue by the UK government.

The clock is now ticking on a six-month deadline, after which the entire edifice will collapse and, in theory, a general election must be called. The general expectation is that it would not be until we reach the business end of this deadline in the autumn when significant progress might happen.

That said, in the wake of the announcement by Truss on Tuesday that London intends to legislate to unilaterally scrap parts of the protocol, there has been a softening of language from the DUP, which may provide the “landing zone” – to use the new phrase du jour – needed for at least a partial solution.

In an interview on BBC Radio Ulster on Friday, it was notable that the DUP leader Jeffrey Donaldson's call for decisive action was cited as the pre-requisite for re-entering the political institutions "in full". Though he emphasised the need to first see the detail of the legislation, which points towards the possibility of a staggered solution which would permit the election of a speaker and, therefore, the restoration of the Assembly.

This would be only the starting point, however; the North would still be without a fully functioning Executive and there is much to be done to calm tensions and to repair the relationships, political and otherwise, damaged by this crisis, as well as to address the reality that a substantial section of unionism feels alienated and that its identity has been undermined by the protocol.

So far, so febrile, yet the likely next step will be "unspectacular and rather familiar at this point", says Katy Hayward, professor of political sociology at Queen's University Belfast.

“Truss is meeting [EU negotiator Maroc] Sefcovic and the talks will recommence, albeit with less trust and goodwill than ever at the political level,” she emphasises. “Of critical importance in all of this will be direct, serious and constructive UK-EU engagement with NI businesses and officials.

“This would help keep the focus closer to fixing the real problems, and thus give cause for both sides to move.”

Throughout the Brexit debacle, the consistent cry from businesses has been for clarity; there is an appetite for what would effectively be a stocktaking exercise with technical teams from the UK and the EU to establish exactly where things stand, and for a focus on solving the issues – of checks, of red tape – for consumer-facing businesses which import from Britain to Northern Ireland.

Yet all this gives rise to another key question, says Hayward: “Who gets to decide what is enough, and when?”

Brussels

In Brussels, the EU hopes for the best, but prepares for the worst.

The British government’s threat to unilaterally change the protocol is seen as hostile as well as self-defeating, because it makes it more difficult to offer the solutions to get rid of checks and paperwork that had been under preparation.

London had long asked Brussels to trust it and not to take a suspicious and heavy-handed approach to protocol enforcement. With the goodwill built up during co-operation over Ukraine, London was about to win this argument, before its latest move destroyed relations afresh.

This explains the suspicions in the European Commission and among EU member states that the British government may not actually be looking for a solution, but rather wants conflict with Brussels for its own sake, for domestic political purposes.

For this reason, the next move is London’s to make. The latest tensions have been instigated by London, and Brussels has decided it will not do anything to escalate the situation, but will continue to appeal for dialogue and joint solutions, hoping all the while that Boris Johnson’s government will change its mind and abandon the planned Bill.

The EU is well aware that passing legislation is a long process, with plenty of opportunities for such plans to be quietly dropped along the way, depending on how the politics play out in London.

There are two paths forward and preparations are under way for both. One is that the British government returns to talks, and moves away from its plans for unilateral action. Over the past year, having observed the reality of trade into Northern Ireland, the EU now believes monitoring can largely be done remotely, rather than through invasive physical checks, as long as data for what is coming in can be monitored in real time. Officials have prepared the way for the checks and paperwork required for goods travelling from Britain into Northern Ireland to be greatly reduced.

But preparation is also under way for the less optimistic scenario. Member states have backed a gradual approach, by which the EU would meet each action from the British government with a matching reaction of equal force. Potential steps include resuming legal action against the UK for infringement and seeking dispute resolution under the EU-UK trade deal.

If all else fails and the British government takes the “nuclear option” to pass legislation overriding the protocol, thereby breaking an international agreement, the EU will also consider itself no longer bound. That means an end to free trade: the imposition of tariffs on British goods

Dublin

In Dublin, Ministers and senior officials are preparing for a difficult few weeks and months.

There is a realisation that its unique role in the process – part of the EU side certainly but with a special relationship with the UK and the added concern of Northern Ireland to navigate – will become more difficult as time goes by.

Nowhere in the EU is the anger at the British government greater than in Dublin; and yet nowhere is the desire to find an agreed solution to the impasse more strongly felt. So Ministers and officials will seek to interpret, explain and analyse the EU to the UK, and vice versa – not as a formal party to the negotiations, but one central to them all the same.

Few believe the nightmare scenario for Dublin – where relations between the EU and the UK deteriorate to the point that the entire trade agreement unravels and the Government is faced with the choice of checks on goods crossing the Irish Border, or on goods crossing from Ireland to the rest of the EU – is likely. But they know that it’s more likely than it was a month ago.

Taoiseach Micheál Martin has repeatedly said the “landing ground” on which a workable solution can be reached is visible to all. But getting there in an atmosphere of intense mistrust is another matter.

There are other potential calamities that are foreseen in Dublin, too. There is acute concern that the disputes over the protocol will see tensions inflamed on the ground as the loyalist marching season approaches and there is intense private criticism of the British government’s “recklessness”.

To help counteract this, there will be intensive outreach efforts to the parties in the North – especially from the Taoiseach personally to the unionist leaders – to seek to dial down the temperature. But with the British government likely to turn up the dial by tabling legislation to nix the protocol in the coming weeks, he has his work cut out on that front.

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