Loyalists protest the Protocol (Charles McQuillan/Getty Images)

November 1, 2022   5 mins

As the prospect of yet another election looms over Northern Ireland, the UK government faces a moment of decision in its Brexit negotiations. This may seem strange since, in theory, Brexit was delivered in 2020. Things, however, are not that simple.

Perhaps the most lasting problem with the EU referendum was that the character of the withdrawal was not specified at the time, making further divisions inevitable. These might have been resolved had the Withdrawal Agreement not collided with an already existing treaty: the 1998 Good Friday Agreement, which presupposes the participation of both the United Kingdom and the Republic of Ireland in the structures of the European Union. From the start, the Irish government signalled the potential for friction. Its British counterpart, however, opted to postpone addressing the issue by maintaining there were no difficulties in sight.

As became swiftly clear, this was never going to work. The dilemmas divided every political party in the United Kingdom, both internally and externally. This first led to the collapse of Theresa May’s government. May’s successor, Boris Johnson, plotted a new course that would involve a more exacting Brexit. In the end, a way forward was carved out between the British and Irish premieres at Thornton Manor in 2019, leading to the drafting of the Protocol to the Withdrawal Agreement: a controversial regulatory “border” would run down the Irish sea, while checks on goods would be carried out at the entry points into Northern Ireland. According to Johnson, the new accord represented a “reasonable and fair” outcome for all parties.

And yet, before long, the Johnson government would jettison its own deal. From an Irish and European vantage, this retreat from an internationally binding treaty amounted to a flagrant exercise in bad faith.

The concrete manifestation of the British government’s repudiation of its obligations takes the form of a Bill introduced into the House of Commons in June to overrule the Protocol and thus a key part of the architecture of the Withdrawal Agreement itself. Currently, having passed its third reading in the Commons, the Protocol Bill is being scrutinised in the House of Lords. It seems likely it will be amended in the upper chamber and sent back to the lower house for consideration by MPs. In the meantime, it is possible that progress in negotiations with the EU will render the Bill superfluous, though Rishi Sunak’s new government still hopes the mere existence of the Bill could force the EU to back down.

As wrangling behind the scenes continues, there is general agreement that the Protocol has inhibited commerce in Northern Ireland. Already by July 2021, more than 40,000 documentary checks had been conducted on agri-foods destined for Northern Ireland’s retailers. From a British perspective, the legalistic mindset of European officials has prevailed over more flexible and pragmatic solutions.

At the same time, the British response has been irascible and peremptory. Some of this is a function of fundamentalist attitudes that have captured the political establishment. For instance, prominent members of the intransigent European Research Group (ERG) — figures such as James Cleverly, Suella Braverman, Steve Baker and Chris Heaton-Harris — have increasingly shaped the culture of the executive. Under Sunak’s administration, Heaton-Harris has retained his role as Secretary of State for Northern Ireland while Steve Baker has kept his supporting role at the Northern Ireland Office. As the fortunes of committed members of the ERG have risen, an obstinate indifference to practical consequences has been spreading across multiple policy areas. While the Irish have stood aghast at old-style British imperiousness, ministers in Westminster have presumed to treat their nearest neighbour as an expendable irritant.

Doubtless all sides have contributed to the stand-off. On the British side, the problem has not been the Government’s legitimate impatience with the juridical mentality of the EU but the methods it has employed to express its exasperation, above all its contempt for mediation and due process. In any case, with Brussels, Washington and Dublin now ranged against London, it is hard to see how the British stance will not backfire. In the worst-case scenario, if a trade war were to ensue, Britain might starve Ireland of needed energy supplies, but its commerce with the EU would suffer gravely.

While the protagonists are aware of these dire consequences, the UK has tried to bolster its “legal” justification for frustrating the framework of lawful negotiations that it had previously agreed to. With the Protocol Bill hovering over talks with the EU, Britain is pleading its right to disavow the Withdrawal Agreement by appealing to the principle of “necessity”. This well-known tenet of international law permits the signatories to an agreement to release themselves from their commitments where they detect imminent danger to national security. However, to most sober commentators, the appeal looks utterly fanciful. The only peril confronting either Britain or Northern Ireland has been caused by home-grown politicians.

In pursuing this course, successive Westminster governments have been following the lead of the Democratic Unionist Party. Even though polls show that half of the population in Northern Ireland accept the Protocol, British governments have insisted on recycling DUP jeremiads about the scale of the menace posed. For instance, along with the DUP, the Government insists that the operation of the Protocol violates the terms of the Good Friday Agreement. But if this were true, the UK government would be the guilty party, having betrayed its earlier commitment when it signed the Withdrawal Agreement.

Westminster also maintains, again in line with DUP arguments, that the Protocol is in breach of the principle of consent enshrined in the Good Friday Agreement. This principle imposes a requirement of cross-community consent for passing legislation in the Northern Ireland Assembly, and is rightly seen as a central plank of the 1998 Agreement. Crucially, however, there is no need for the parties in Stormont to consent to the policies of Westminster. If there were, the UK would be hostage to political forces in Northern Ireland.

The DUP, meanwhile, along with other unionist parties in Northern Ireland, believes that the Protocol undermines their position in the United Kingdom. Obviously this needs to be addressed. But the process should begin with recognition of the fact that devolution itself makes uniformity impossible. Correspondingly, across the UK, bespoke provisions have been adopted in every nation. Historically, and still today, Northern Ireland has had a plethora of exceptional arrangements including, until recently, its own abortion laws. Likewise, Scotland has its own legal and education systems. To insist on homogeneity against this background is clearly incongruous.

The only way forward is for Westminster to give up its strategy of negotiating in bad faith. If Sunak is to make any progress with the EU, his government needs to abandon its claim that the Good Friday Agreement is in peril just because a section of the population in Northern Ireland begrudges the Protocol. Similarly, invoking the threat to peace as a pretext for validating its extravagant approach won’t achieve anything other than increasing unionist alienation. And neither, I suspect, will another election in Northern Ireland.

All that will follow is stasis: further months of bitterness and wrangling filling a gap once occupied by political discussion. Sunak has made clear he hopes to secure a “negotiated settlement” with the EU and Belfast. That’s all very well, but until Westminster puts aside its disingenuous playbook, Northern Ireland’s future won’t be resolved.

Richard Bourke is Professor of the History of Political Thought and Fellow of King’s College at the University of Cambridge. He is the author of Empire and Revolution: The Political Thought of Edmund Burke.