The EU is taking legal action against the UK in response to the government’s plan to revise the Northern Ireland Protocol following the UK Government’s release of a bill proposing the legal mechanism governing the smooth trade of goods between Britain, Northern Ireland and Europe ensure unilateral change. The EU has refused to renegotiate the protocol, saying what the bill proposes would violate international law.
The protocol provoked prolonged political and economic tensions, and the British government repeatedly tried to amend it. So, how did we get here?
The Belfast / Good Friday Agreement
In 1998, the Belfast / Good Friday Agreement put an end to the sectarian violence that had plagued Northern Ireland for decades. This agreement emphasized that Northern Ireland was an integral part of the UK, but established its right to secede. This unique constitutional status was accompanied by ingenious multi-level governance: power-sharing institutions in the province and co-operation mechanisms between the north and south of Ireland, and between Britain and Ireland.
Although the text of the agreement does not include very explicit references to the EU, the agreement is “based on the adoption of common policies and interests” – effectively guaranteed by the UK and the Republic of Ireland’s EU membership. Following the Brexit referendum in August 2016, the Northern Ireland executive encouraged the British Prime Minister not to create a “hard” border on the island of Ireland, which would create an incentive for those who would like to undermine the peace process.
At the start of Brexit negotiations, both the UK and the EU agreed that they should avoid a hard border. But the UK’s decision to leave the single market and the EU customs union has led to a mystery. How can the UK and the EU keep the territorial border free of physical infrastructure without compromising the integrity of the EU internal market?
There have always been two possible solutions to this problem. Firstly, the UK as a whole can stay within the EU’s regulatory orbit – at least in terms of free movement of goods. The November 2018 withdrawal agreement signed by Theresa May chose this model. However, she could not convince the majority of MPs to support it, which led to her death.
Read more: Northern Ireland protocol explains: why the British government’s plan to change it violates international law
Alternatively, the UK can accept that Northern Ireland will have a closer relationship with the EU than the rest of the country. It was initially proposed by the EU in February 2018 and finally accepted by Boris Johnson’s administration in October 2019 – albeit in a revised form.
This has led to the adoption of the current Northern Ireland Protocol, the main purpose of which is to avoid a hard border and protect the Good Friday Agreement. To do so, Northern Ireland remains legally within British customs territory. Despite this, EU customs legislation and a significant part of the free movement of goods still apply to the region, as well as EU legislation on VAT and excise duties. In practice, this hybrid regime means that trade between the two shores of the Irish Sea is no longer frictionless – especially for goods moving from Great Britain to Northern Ireland.
So far, those inevitable and predictable frictions have been largely addressed by allowing for grace periods. With regard to food, for example, large retailers do not have to meet all the EU’s standard certification requirements when importing goods from the rest of the UK.
In March 2021, the British government unilaterally extended those grace periods. Three months later, in June 2021, they described the significant changes to the protocol they were looking for. These include the removal of the jurisdiction of the EU Court of Justice and the establishment of a dual regulatory regime for Northern Ireland, which would allow goods to circulate in the region if it complied with UK or EU standards. completed.
In October 2021, the EU proposed to reduce controls and controls between Great Britain and Northern Ireland without reviewing the fundamentals of the protocol.
The Northern Ireland Protocol Bill
Although some amendments regarding the supply of medicines have been ensured, the UK and the EU have not been able to agree on how to resolve the issues raised by the protocol.
The majority of elected representatives in Northern Ireland remain broadly in support of the protocol. However, trade union / loyalist parties do not support the protocol. This has led to political paralysis in the region as the Democratic Unionist Party has blocked the functioning of the power-sharing institutions, including the Northern Ireland Assembly and executive.
To seemingly deal with it, the British government has now published a bill that effectively rewrites the protocol. This is not the first time it has tried to do this. The last time the government acknowledged that such an attempt would amount to a violation of international law in a very specific and limited way.
This time, the proposed amendments revise the whole arrangement with the exception of some provisions governing the rights of individuals, the common travel area and some areas of north-south cooperation. It also grants ministers significant forces to further amend the Protocol if they deem it appropriate.
The EU says it is breaking international law and has now launched new legal action against the UK, in addition to the revival of legal action it suspended in March 2021 over the unilateral extension of the grace periods.
Even if the gamble is paid out, the DUP is appeased and an executive is formed, the parameters of how to keep the Irish territorial border frictionless will remain the same. Whether the UK as a whole or Northern Ireland will have to stay in the EU’s regulatory orbit with regard to the free movement of goods.
Meanwhile, such unilateral moves increase the gap and friction between the different traditions in the region, making it even harder to find a compromise and resolve the dispute.
Nikos Scoutaris consulted the GUE / NGL Parliamentary Group of the European Parliament on Brexit-related issues during 2017-2020.