It was always clear that the Northern Irish dimension of Brexit would be a particular challenge. The UK and the European Union had hoped that with their own protocol and mutually agreed rules, they could avoid a fixed border on the island of Ireland. All aspects of the Belfast Agreement (Good Friday Agreement) of 1998 should be preserved and the restrictions inevitably associated with Brexit should be kept to a minimum. The Northern Ireland peace process might get a little out of whack, but otherwise remain largely unaffected.
However, the realities of Brexit and the Northern Ireland Protocol and the trade barriers it created triggered reactions that made the first few weeks of 2021 an extraordinarily difficult time for Northern Ireland. What Brexit actually means became tangible on January 1st, when the new formalities, restrictions, reviews and controls for the movement of goods between Northern Ireland and the rest of the UK came into force. These innovations seem to have taken many people by surprise, but they are the logical consequence of the fact that the UK has withdrawn from the EU Customs Union and the European Single Market and, under the protocol, agreed that Northern Ireland should remain in the EU customs territory and – at least as far as the movement of goods is concerned – also belongs to the EU internal market.
These new regulations have created what many consider to be the “Irish Sea Frontier”. For many “Unionisten“Who advocate Northern Ireland remaining in the UK, this is totally unacceptable. In their view, such a border divides the United Kingdom, threatens its constitutional integrity and reduces the idea of a British internal market to absurdity. Others are more relaxed on this point. The protocol is a pragmatic response from the UK and the EU to the realities of a hard Brexit and testifies to their joint efforts to avoid a hard border on the island of Ireland. Northern Ireland’s constitutional affiliation with the United Kingdom remains unaffected; After the 1998 agreement, only a vote by the people of Northern Ireland could change that – and there is currently no majority for a united Ireland, even if the number of supporters increases.
The unionists, however, are extremely concerned about the future. Their protest against the protocol has become louder and more determined and they are now taking legal action against it. Among other things, the clause in the Brexit agreement violates the Unification Act of 1800 and the consent regimes in the 1998 agreement. Furthermore, they see the protocol as something that was imposed on the UK by an EU based on Irish nationalist views on the consequences of Brexit for the Belfast Accords far too willingly but turned a blind eye to Unionist concerns. What annoys many is that they believe Boris Johnson and his government have betrayed them. After all, it was he who agreed to the terms of the protocol.
The EU’s move was immediately and unanimously condemned.
The opponents of the protocol, referring to the inevitable break that the “real” Brexit means, soon demanded that the British government should Article 16 triggers and ensures the unhindered movement of goods from Great Britain to Northern Ireland with unilateral protective measures. According to the most vocal critics, the protocol should simply be abandoned.
The UK government has resisted such demands, and for good reason. It was clear from the start that Brexit would lead to change in any case, and the British government, which has stood up for it at the forefront, has to live with it, even if it has always downplayed the magnitude of the resulting changes. That is why it cannot rush to take unilateral protective measures as soon as it is confronted with consequences that were likely to be foreseeable and which the British government immediately presented as “teething troubles”. Protective measures are intended for exceptional situations and therefore as a last resort.
That was the state of affairs at least until the end of January. The main concern was to implement the protocol – and many pragmatic unionists seemed to have come to terms with it, including the chairwoman of the Eurosceptic Democratic Unionist Party (DUP) and first minister of the Northern Irish regional government, Arlene Foster.
But then on January 29, 2021, the European Commission announced that it would unilaterally trigger Article 16 without consulting the United Kingdom and adopt a protective measure by means of a regulation that requires export permits for deliveries of Covid vaccines from the EU. In contrast to the free movement of goods on the island of Ireland provided for in the protocol, the required export permits for Covid vaccines were intended to prevent unauthorized vaccine deliveries from reaching the UK. This news led to the suspicion that the European Commission was trying to establish a hard border on the island of Ireland without consulting, and it hit like a bomb. The EU’s move was immediately and unanimously condemned.
According to the most vocal critics, the protocol should simply be abandoned.
The fact that the EU Commission was considering using Article 16 was met with disbelief and indignation on the island of Ireland – also by the Irish government. Arlene Foster described the procedure as “an unbelievably hostile act … With this triggering of Article 16, the European Union shows once again that it is prepared to instrumentalize Northern Ireland if it serves its interests, and in a particularly horrific way Way – because after all, this is about providing a vaccine that is supposed to save lives. “
The regulation was revised immediately. Within a few hours, all references to Article 16 and the protective measures were deleted from the text. The naive faux pas was corrected, and EU Commission President Ursula von der Leyen has now admitted to the European Parliament: “Errors were made in the process that preceded the decision. And I very much regret that. “
However, despite the assurances that the Commission will “do everything possible to keep the peace in Northern Ireland”, the Article 16 debacle has seriously worsened the chances of a smooth implementation of the Protocol. The anger is particularly great among the unionists, who reject the protocol anyway. A petition by the DUP to trigger Article 16 to ensure “unhindered trade between Great Britain and Northern Ireland” received 100,000 signatures within 24 hours. By yesterday’s debate in the House of Commons, the number had risen to 142,000. There are repeated calls among the Unionists to abandon the Protocol. The legal challenges could now end up in the Supreme Court.
Other actors in Northern Ireland are more focused on finding ways to implement the Protocol in ways that address the inevitable disruptions of Brexit and at least remove some of the new barriers to moving goods across the Irish Sea. So the economy calls for stability and security and simpler procedures and processes. It calls for longer and longer transition periods and calls for the United Kingdom to align the areas regulated by the Protocol with the EU acquis, particularly in the areas of food and plant and animal health.
Above all, it is about implementing the protocol in such a way that the joint commitments made by the UK and the EU are fulfilled.
Of great interest is how Northern Ireland can effectively defend its positions vis-à-vis the EU under the bilateral and other institutional arrangements provided for in the Protocol. The same applies to the question of how future legislative proposals by the European Commission can be checked for their effects on the protocol and Northern Ireland with the help of an “early warning system” and how impact assessments can be carried out. The call of Irish MEPs in the European Parliament for a “unifying bond” between the members of the Northern Irish Parliament and the EU institutions is also supported.
Above all, it is about implementing the protocol in such a way that the joint commitments made by the UK and the EU are fulfilled. This includes the commitment that “the everyday life of the people in Ireland and Northern Ireland will be affected as little as possible”. In order to achieve this, both the UK and the EU need to be flexible and accommodating about the implementation and be sensitive to the economic and political realities that Brexit will create in Northern Ireland and to the concerns of all those concerned.
If this does not happen, the tensions the Protocol is creating in Northern Ireland are unlikely to ease – and the Protocol will remain a political issue. In 2024, the members of the Northern Irish Parliament will have to decide whether the provisions of the Protocol that avoid a hard border on the island or in Ireland and actually move this border into the Irish Sea should continue to apply. The political parties of the unionists are already mobilizing against approval. How much support they will get will be revealed in the parliamentary elections in May 2022. Until then, the UK and the European Union must politically take as much steam out of the kettle as possible on the Northern Ireland Protocol.
Translated from the English by Christine Hardung