Since the Brexit referendum, many leaders have spoken in measured solemnity of the Northern Irish peace process and the Good Friday Agreement. Almost all have shown, in their following words and deeds, that they understand neither.
The Good Friday Agreement says nothing about a border between the United Kingdom and the Republic of Ireland, and places no obligations to remain part of the European Union, its customs union or single market. But it does say that “key decisions” should be taken on a “cross-community basis”, and that “it would be wrong to make any change in the status of Northern Ireland [within the United Kingdom] save with the consent of a majority of its own people”.
To all but the most partisan nationalists and angry remainers, it is obvious that the Northern Ireland Protocol has put the Good Friday Agreement it was supposed to protect on life support. To avoid a North/South border between Northern Ireland and the Republic, we have instead an East/West border. Complex goods checks mean trade between Northern Ireland and the British mainland is disrupted, and EU law – interpreted by the Court of Justice of the European Union – applies.
Little wonder that the Democratic Unionist Party is not alone implacably opposed to the protocol, but furious with the Conservatives and the successive governments they have formed. Immediately after the referendum, the expectation in Dublin, London and Belfast was that the border between the UK and the EU would be North/South, but with trade checks minimized through a mix of policy and technology, and taking place at the start and end of transit, not as goods crossed the formal but open border.
The pass was sold when Theresa May changed her promise to avoid a return “to the borders of the past” to no border at all between Northern Ireland and the Republic. From then on, a trade border would inevitably lie between mainland Britain and Northern Ireland, unless the whole of the UK accepted EU laws and remained in its customs territory in perpetuity. Perhaps this was always the plan for those who advised her at the time. But the subsequent choice – between dismembering the UK and delivering a Brexit-in-name-only – was unacceptable to Unionists and the Conservative Party.
Boris Johnson succeeded May and, finding himself trapped by a Parliament that refused to agree to any Brexit deal, and by the Northern Ireland negotiations that had gone before, he opted for a very Johnsonian solution. He accepted the trade border between Britain and Northern Ireland and signed the protocol, knowing it could not work, understanding the risk to the Union, but believing he would change it later. His supporters called it bold; his critics called it dishonest. In truth, it was the only option available to him.
The protocol was never fully implemented because Britain unilaterally refused to apply large parts of it. Even still, and even with Britain having not yet diverged from the mass of EU laws it once applied, the protocol damages Northern Ireland and its place in the UK. Supply chains are disrupted and costs have increased. Hundreds of businesses from mainland Britain have stopped selling in Northern Ireland, supermarkets have reduced product lines, and the EU has been overzealous. One study found that Northern Ireland was subject to 20 percent of its total border checks. During the pandemic Brussels planned to override the protocol to block vaccine exports.
It would be a mistake, however, to see only a technocratic problem. The real issue is about sovereignty, democracy and identity. If erecting a North/South customs border was so damaging to the identity of nationalists in Northern Ireland, why did nobody think that an equivalent border in the Irish Sea would be damaging to the British identity of unionists? Whether they understood or not, too few seemed to care.
For reasons of democracy and peace, the protocol can not stand. And now, as a deal looms, Rishi Sunak is confident that he has extracted significant concessions from the EU. Officials say that for Great Britain-Northern Ireland trade, companies that register with the authorities will be free to send their goods without documentation if they stay in the UK internal market. Northern Ireland will be subject to UK tax and state aid laws. But while the role of the Court of Justice may be more distant, it will still ultimately rule. “We have the level of EU law in Northern Ireland,” an adviser says, “down to the minimum you need for an open border.”
Given tarnished trust between ministers and the DUP, nobody expects its leader, Sir Jeffrey Donaldson, to rush to welcome the deal. But as long as Donaldson does not immediately kill it off, Downing Street believes it is winning. They are confident enough in the deal to believe that pressure from within Northern Ireland will bring the DUP round. And Court of Justice jurisdiction, they note, is not one of Donaldson’s seven tests for dealing with the protocol. If the DUP can accept the deal, the PM hopes, then power-sharing in Northern Ireland will become possible again.
The deal may not be what everyone wants, but it is certainly better than what we have today. Members of the Tory Right – concerned that Sunak may not win back complete control in Northern Ireland – should appreciate that the PM is not giving anything away. The concessions are coming our way, and – while Downing Street can never say this publicly – there will be future opportunities to press for change again if necessary. The UK/EU Trade and Co-operation Agreement is to be reviewed in 2025, and every five years after that. New technologies should in time make trade checks lighter.
But most important of all, in the end – whatever the details of the deal, whatever the future might bring – it is unionists who must judge. There have always been two sides to the conflict in Northern Ireland – however prominent the appeasement of the nationalists – and the need for consent from both sides is wired into the Good Friday Agreement. The unionists have been frozen out for long enough, with terrible consequences for Northern Ireland: whatever the merits of Sunak’s deal, it is time to bring them in from the cold.