August was a decidedly quiet month for the protocol on Ireland/Northern Ireland. This is no guarantee, however, that the autumn will pass without many of the tensions that have dominated its implementation being reignited. The protocol remains contested and particularly so in Northern Ireland. Political parties remain divided on what should happen with it, as are voters.
The current focus of the UK and the EU is to make the protocol work such that it addresses or at least alleviates some of the concerns of supporters, critics and opponents alike. Many of these focus on the practical outworkings of the protocol for the movement of goods into Northern Ireland from the rest of the UK, particularly where they relate to customs formalities, regulatory standards and VAT. The resulting Irish Sea border is not something anybody in Northern Ireland voted for in the 2016 referendum, or in any vote since.
Opinion polling evidence indicates that two-thirds of voters in Northern Ireland do accept that particular arrangements are needed to manage the effects of Brexit so as to address “the unique circumstances on the island of Ireland”. The challenge, therefore, is to ensure that arrangements, as agreed by the UK and the EU, work – and are seen to work – in the interests of Northern Ireland. Doing so should improve their perceived legitimacy.
If opposition towards the protocol in Northern Ireland is to be tempered and acceptance of its arrangements – potentially refined or reformed – is to improve, there is an urgent need to shift perceptions of the protocol. Put simply, it needs to move from being seen as something that has been imposed “on” Northern Ireland to being something clearly developed and implemented “with” Northern Ireland.
This raises the question of how interests in Northern Ireland can best be incorporated into decisions taken regarding the protocol. How can the voice of Northern Ireland be included in its post-Brexit governance? Here are six actions that could improve the acceptance of the protocol’s arrangements among voters in Northern Ireland
First, there needs to be more information about what the protocol actually entails and means for Northern Ireland, particularly in the context of the overall EU-UK relationship. And the information needs to be easily accessible, reliable and regularly updated. Opinion polling clearly shows that voters want such information.
Second, there needs to be greater transparency around the activities of the UK-EU bodies charged with implementing the protocol: the Joint Committee, the Specialised Committee and the Joint Consultative Working Group (JCWG). Their meetings should be regularised and publicised, and agenda and minutes should be published. This would not only demystify their work by showing how decision-making concerning the protocol works and who is involved, but also bring some perspective to the type of issues the protocol covers.
Third, informal consultation mechanisms that have been developed need to be placed on a formal footing. This applies to the meetings, hosted by the co-chairmen of the EU-UK Joint Committee, Maroš Šefcovic and David Frost, which have been organised with representatives of the business community and of civil society organisations in Northern Ireland.
These have proved to be valuable means of consultation. They should be formalised with meetings taking place on a regular basis and a file note being published of the issues raised.
The same should be done regarding the appearances of the co-chairs before the Northern Ireland Assembly’s Committee for the Executive Office. A significant shortcoming of the governance arrangements for the protocol is the absence of formal interaction between the Joint Committee which takes decisions on the protocol and the MLAs who, with their democratic consent in 2024, hold much of the protocol’s continued application in their hands.
Fourth, the UK and the EU need to consider officials or experts from Northern Ireland attending meetings of relevant EU committees, Commission expert groups and EU agencies where the discussion concerns EU law covered by the protocol. Such engagement – envisaged in the early drafts of the protocol – would grant officials and experts from Northern Ireland a “decision-shaping” role similar to that enjoyed by counterparts from Iceland, Liechtenstein and Norway as part of their involvement in the European Economic Area.
Fifth, expert panels should be established to inform the deliberations of the JCWG. The panels should reflect the range of issues covered by implementation of the protocol. A key role will be in commenting on planned EU legislation. Panel composition will vary but should comprise technical experts as well as representatives from business and civil society. Panels should meet monthly with a rapporteur reporting to the JCWG.
Finally, there is the matter of developing formal mechanisms that involve the institutions established by the 1998 Belfast Agreement in monitoring and contributing to the operation of the protocol. This applies to all three strands of the 1998 agreement. Currently engagement opportunities are limited, such as in the scope for the North-South Ministerial Council to make proposals to the Specialised Committee. The UK and EU should consider additional consultation and information mechanisms for the Northern Ireland Assembly, the Northern Ireland Executive, the British-Irish Council and the British-Irish Intergovernmental Conference.
Ensuring Northern Ireland’s voice is heard in how the protocol operates requires that voice to exist. Given the political contestation around the protocol, securing a Northern Ireland position that can be clearly and confidently articulated by the Northern Ireland Executive poses an even greater challenge than delivering on the actions proposed here.
However, until such time as there are enhanced and more formalised structures in place that allow Northern Ireland a meaningful input into the governance of the protocol and assurances that its voice will be heard and acted on, important incentives for politicians to accept the existence of the protocol and work so that it benefits Northern Ireland will not exist.