For a fifth consecutive winter, Northern Ireland requires the attention of perplexed and irritated governments across Europe. Despite some lowering of the temperature in recent days, nobody, maybe including Boris Johnson, can be sure of what the UK government wants or plans to do about the Northern Ireland protocol. Within a couple of months, at most, it is surely either going to have to act on its constant threats to invoke article 16 or find a compromise out of the stand-off it has created.
The UK has three essential complaints about the protocol. First, that it has seriously negative practical effects. Second, that the role it gives to the European Court of Justice as the final arbiter of disputes intrudes on British sovereignty. And third, that it does not enjoy cross-community consent.
The difficulties created by the protocol can be reduced and the opportunities reinforced. The British have proposed a radically new approach to controlling and monitoring the movement of goods to Northern Ireland, and from it into the South and thus the single market. There are huge doubts about its feasibility. During negotiations on the protocol, the UK tried repeatedly to come up with alternative arrangements. None of these “unicorns”, as they were sometimes derisively described, could break into a trot, let alone a gallop. So the commission’s proposal to soften substantially the implementation of the protocol is the only plausible basis for negotiations. It is a pity that it did not make this move several months ago, but its offer can be further developed in negotiations.
Trying to eliminate the ECJ leads to a negotiating blind alley. There is no way that the EU could ever agree to adulterating the court’s role in determining questions of EU law. And similar provisions in other agreements have very rarely been used. Perhaps a further quasi-judicial layer could be added to the dispute resolution process in the protocol – it would not be the first mainly cosmetic provision put in an international agreement to solve a political problem.
Recent opinion surveys suggest that a majority of people in Northern Ireland either support the protocol or could live with it, especially a modified version. Nevertheless, the same surveys confirm the significant hostility of most unionists. Their concerns are real and understandable, though their intensity may partly stem from the UK government’s aggressive rhetoric. As in the 1990s with the demand for IRA decommissioning before negotiations, unionists cannot be expected to be more nuanced or less zealous than the government.
It may be cold comfort to point out that Brexit itself did not enjoy cross-community consent, and nor would the destruction of the protocol. But if majority unionist support for the protocol is a test that must be passed, then failure is guaranteed. Reluctant acceptance might be the best achievable outcome. If there is to be a deal, the UK government must assume its responsibility for balance and stability in Northern Ireland, present change to the protocol as a triumph and help DUP leader Jeffrey Donaldson to claim credit and persuade his party and its voters.
The EU faces one challenge, and maybe two. To reach a deal it will have to adjust its offer a bit further. I have no doubt that this is understood. Parts of the commission and some member states may not be happy, but solving the problem must be the priority. The EU legal services are good at finding creative solutions.
More difficult would be working out the EU response to the invocation of article 16. The British would choose specific “safeguard measures” from along a continuum. The EU would have to decide just how damaging those measures would be. Then it would have to consider what to do about them. Reacting gently to British provocations has not worked so far. It appears that there would be a willingness to retaliate hard, going beyond the graduated procedures set out in article 16. A range of countermeasures, including selective tariffs, exists. However, the EU, as champion of the rule of law, would have to be certain it was acting legally. Broad support among member states, especially those who stand to be affected by a trade war, would also be imperative. Some have suggested that terminating the entire Trade and Co-operation Agreement could be the ultimate sanction. This requires one year’s notice and would inevitably lead to yet more lengthy negotiations. It is hard to see that the necessary consensus would at this stage exist to make this threat credible.
A robust response to the use of article 16 thus seems unavoidable and the threat alone might well be effective, but in any conflict there is a danger that escalation can develop its own damaging momentum.
Ireland remains in a very difficult position. The protocol is achieving its purpose, the avoidance of a trade border in Ireland. It seems to be having some positive impact on the development of the all-island economy, though the apparent growth in North-South trade may be exaggerated. We continue to enjoy the support of our EU partners.
But even if any last illusions about the reliability of this UK government have vanished, we still have no option but to work with it on Northern Ireland. A further source of tension between unionism and nationalism in an already volatile situation threatens the Belfast Agreement and jeopardises the objective of a shared island.
And if the operation of the protocol were effectively suspended for any significant period, attention would move to how the single market could otherwise be protected, either on the island or between the island and mainland Europe. The commission and member states asked some searching hypothetical questions during the preparations for a possible no deal in early 2019: luckily events moved on and we never had to answer them. Presumably we could expect a reasonable grace period if and as EU-UK discussions continued, but eventually we could find ourselves faced with a choice between deeply unpalatable options. And, ironically, we would then have to look for their gentlest possible application, just as the British are now seeking for the protocol.
Based on the logic of circumstances and, more importantly, his past form, I am optimistic that Boris Johnson will at the end agree to a deal, though I would not put my house on it. Fortunately, the EU remains united, calm and determined. Ireland must continue talking to everyone and sharing our unequalled knowledge of the many factors that shape the situation.
Rory Montgomery is a former Irish diplomat. He was permanent representative to the European Union and ambassador to France. Between 2014 and 2019 he was second secretary general with responsibility for EU issues at the Department of the Taoiseach and then at the Department of Foreign Affairs