8 December 2022

Isn’t the Northern Ireland Protocol ironic, don’t you think?


The comic Ed Byrne once memorably deconstructed Alanis Morrissette’s song Ironic. He noted that, while the lyric was supposed to provide a series of examples of irony, it actually just recounted unfortunate events, none of which was ironic at all. The only ironic thing about the song, he concluded, was that its writer didn’t know the meaning of the word irony.

If only the Canadian songwriter had been able to follow the Northern Ireland Protocol saga before putting pen to paper, she would have had plenty of examples of real-life irony.

Take the legal challenge against the Protocol, which last week reached the Supreme Court in London. Baroness Hoey, former Brexit Party MEP Ben Habib and other unionist leaders have challenged the compatibility of the Irish Sea Border with the Acts of Union, which established the United Kingdom, and the Belfast Agreement, which underpins the province’s peace settlement.

The Government is supposed to be opposed to the Protocol precisely because its provisions compromise the UK’s territorial integrity and destabilise the devolved institutions in Northern Ireland. Indeed, it is pushing a bill through parliament that would enable ministers to dismantle parts of the Irish Sea border, on the basis that this is ‘necessary’ to protect the Belfast Agreement and the British internal market. 

And yet, in the Supreme Court the Government’s lawyers vigorously defended its right to override the Act of Union’s critical provisions on trade. And they argued that the ‘principle of consent’ that lies at the heart of the Good Friday deal was not affected by handing over control of vast swathes of Northern Ireland’s laws to a foreign power.

At roughly the same time as those machinations were taking place, the figurehead of that foreign power, Ursula von der Leyen, was in Dublin, comparing Britain’s influence in Ireland to Russia’s role in Ukraine. The President of the European Commission promised that Brussels would continue to show ‘ironclad solidarity’ on Brexit issues, implying that this approach was necessary to protect ‘Irish independence’.

This wildly inappropriate and undiplomatic speech, delivered at a time when the EU is supposed to be improving the ‘mood music’ with the UK, was ironic for many reasons. But let’s stick with the fact that, far from taking a Putinist approach to Irish separatism, the British government was so sensitive to nationalist sentiment during the Brexit talks that it made self-destructive commitments on Northern Ireland that have plagued it ever since. 

Theresa May was one of the ministers who promised that no checks or paperwork could be contemplated on the Irish border, where an international frontier already existed. That pledge, followed by the infamous Joint Report from the UK and the EU in 2017, led directly to her ‘backstop’ agreement with Brussels and eventually morphed into Boris Johnson’s Protocol.

Last week’s Supreme Court case demonstrated, beyond any doubt, how grievously Mr Johnson’s deal damaged the Union. 

During the arguments, the Government conceded that the Protocol ‘disapplied’ Article 6 of the Act of Union, which specifies that:

The subjects of Great Britain and Ireland shall be on the same footing in respect of trade and navigation, and in all treaties with foreign powers the subjects of Ireland shall have the same privileges as British subjects.

In other words, ministers have given up on the pretence that they haven’t seriously compromised Northern Ireland’s place in the Union; relying instead on the argument that they had the legal right to change the province’s status without expressly and unambiguously making that intention clear.

The repercussions of the Government’s position were explained clearly by Northern Ireland’s former Attorney-General, John Larkin KC, who put the unionist case to the Supreme Court: 

“There is a customs border between Great Britain and Northern Ireland. Northern Ireland is subject to rules made and administered by institutions that are beyond day-to-day parliamentary control and far beyond the control of the Northern Ireland assembly… It would have been much more politically dramatic to have conferred a part of laws over Northern Ireland to the Oireachtas in Dublin (the Irish parliament) rather than to the EU, but the constitutional principle is… the same.”

The province’s constitutional status is supposed to be protected by the ‘principle of consent’, which was the key tenet of the Belfast Agreement. In effect, Northern Ireland should remain an integral part of the UK, with all the practical consequences that entails, unless its people vote to join the Republic of Ireland through a referendum.

Which brings us to yet another irony. At the weekend, the latest poll on that question, conducted by the Irish Times, found that just over a quarter of voters in Northern Ireland would currently vote for unity with the Republic. This was not a one-off, but the latest in a long line of surveys that produced broadly similar results.

What these figures demonstrate is that the province’s place in the United Kingdom has been eroded without any democratic mandate and despite overwhelming public support for retaining the status quo. The Government’s argument that Northern Ireland status hasn’t changed, also shows that the Protocol has degraded the principle of consent to the point where it has become practically meaningless.

The same government that is supposed to oppose the Protocol because it threatens Northern Ireland’s place in the Union is defending the Irish Sea border in the Supreme Court against exactly that charge. Meanwhile, the EU’s president has accused Britain of acting like an invading power in Ireland, despite the fact that the UK allowed Brussels to economically annex part of its territory in order to avoid offending Dublin.

Alanis, take note. This is what ‘ironic’ really means.

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Owen Polley is a writer, commentator, consultant, and the co-author 'An Agenda for Northern Ireland After Brexit'.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.