5 July 2021

The Protocol mess stems from years of neglecting Northern Ireland

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To anyone who has been trying to follow the thread of the Government’s policy on the Union, the current stand-off over the Northern Irish Protocol cannot help but be confusing.

Boris Johnson is, after all, the man who cast aside his promises to resist a border in the Irish Sea in order to ‘get Brexit done’ for the mainland. He then followed that up by allowing inter-personal squabbles inside Downing Street to collapse his Union Unit, leaving nobody in full-time charge of taking on the SNP.

It would be quite in keeping with such an approach to simply do as previous governments have done and ignore Ulster. Instead, both David Frost and Brandon Lewis, the Northern Irish Secretary, are pursuing a more muscular strategy with regards to the Province than we have seen in decades.

Contra the dark murmurings of FBPE Twitter, this hasn’t yet involved any unilateral move to tear up the agreement or trigger Article 16. Instead, the Government has adopted a strategy of making targeted interventions, unilaterally if necessary, to protect east-west supply chains. In a recent article for the Irish Times, both men explain why:

“The movement of goods between Great Britain and Northern Ireland is vastly more important to Northern Ireland than its trade with Ireland and the rest of the EU – to consumers as well as businesses. In 2018, Northern Ireland purchased five times as many goods from Great Britain as from Ireland. Half of Northern Ireland’s external sales go to Great Britain – less than a fifth to Ireland.”

Tellingly, parts of the Irish commentariat are so unused to having the counter-case to the assumptions behind the Protocol put to them that there have been comments about the strangeness of placing a column clearly meant for “domestic consumption” in an Irish paper. Northern Ireland’s trade stats have been available since 2016, but Theresa May didn’t like to shout about them.

(It also says much about the scrutiny the EU expects to receive that so many are talking about its ‘flexibility’, when it has merely offered a three-month stay of execution and suggested that the UK align on SPS checks. Even the published list of examples of flexibility Brussels provided actually contains no such.)

But there is another part of the article which is perhaps even more telling, especially in light of the recent defeat of the unionists’ legal challenge to the Protocol:

“We assumed that the requirements to facilitate trade between Northern Ireland and the rest of the UK, and to try to avoid checks and controls at Northern Irish ports, both spelt out in the protocol, would be meaningful. We expected that the protocol’s injunction to minimise impact on everyday lives in Northern Ireland would be fully reflected. But it isn’t working out like that.”

This fits a broader trend (about which I have previously written for CapX) wherein legal commitments made to unionists always seem to turn out to carry less weight, or be much less expansive, than alleged commitments to nationalists. Nowhere is this more obvious than in the absurdly one-sided interpretation of the Belfast Agreement that May ended up getting sold by Dublin and Brussels.

On the one hand, the relatively narrow range of protected north-south issues outlined in the Annex to Strand Two of the treaty somehow metastasised into an entitlement to a completely invisible economic border with the Republic. David Torrance, the House of Commons clerk who specialises in the constitution, has pointed out that this is nowhere in the Agreement. Yet May signed up to it as an “obligation” anyway.

In contrast with this extremely expansive approach to interpretation, the Agreement’s commitments to unionists have repeatedly been read as narrowly as humanly possible. Here is Professor Vernon Bogdanor, writing in the Daily Telegraph, summing up the unionists’ court defeat:

“But the court responded that the 1998 Act gave the people of Northern Ireland only the constitutional right to decide whether to remain part of the UK or to become part of a united Ireland. It did not regulate “any other change in the constitutional status of Northern Ireland”.”

We don’t need to guess that this isn’t what the unionists thought they were signing up to in 1998. We have David Trimble, the Nobel Prize-winning co-author of the Agreement, telling us so. But of all the authorities who have arisen on the subject of the Irish border over the past few years, he is for some reason not in fashion.

Likewise, it was Brussels and Dublin who insisted that the Agreement’s requirements for cross-community consent for votes in Stormont be set aside when it comes to vote on the Protocol. It doesn’t take much cynicism to think that they would not have done this if Unionism had not lost its majority in the Assembly a couple of years before.

Once again, the only coherent thread in interpreting the treaty seems to be the interests of Irish nationalism. Given that the Agreement can only function if it commands the respect of both sides, this is at best extremely reckless.

None of this means that the other side are entirely wrong. The May government, weak and clueless as it was, did box us in on Northern Ireland, and Johnson did then sign up to the Protocol. Brussels is within its rights to try and enforce it, even if London is also right to insist on changes.

Likewise, there is truth to the Remainers’ charge that Brexiteers did not properly account for the challenges Brexit would pose in Northern Ireland. But as with so much else, this is much more a case of Brexit exposing the shortcomings of the British state, rather than creating problems out of whole cloth.

The abject performance of British negotiators on Northern Ireland simply reflected a long-standing and deep-rooted neglect of the Province. According to Whitehall sources, the previous regime at the Northern Ireland Office took the view that its role was simply to tread water until the time came to cede Ulster to the Republic. Lewis and his new Permanent Secretary, former national security adviser Madeleine Alessandri, are trying to change this, but have a lot of work to do.

Ultimately, this is about more than foodstuffs or supply lines. It is about whether or not we think that Northern Ireland is a full and integral part of our United Kingdom, unless and until a majority explicitly vote to change that status, or if the Belfast Agreement is nothing more than a promise not to pursue Harold Wilson’s ‘Algerian option’ and abandon the Province before then.

If the former, unionists and ministers have a lot of work to do to articulate and implement a vision of the Agreement that reflects that reality. If not, the Agreement is not what it pretends to be.

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Henry Hill is News Editor of ConservativeHome.

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