Brexit Protocol reaches flashpoint

Ruth Green, IBA Multimedia JournalistThursday 27 May 2021

The Northern Ireland Protocol remains one of the most contentious aspects of the UK’s departure from the European Union. Global Insight examines the fallout and its constitutional implications.

Header pic: Protestors clash with police on the Springfield Road in Belfast, Northern Ireland, 8 April 2021. REUTERS/Jason Cairnduff TPX

On 3 May 1921, the Government of Ireland Act 1920 came into force, drawing a border on the island of Ireland for the first time. Legislators at the time could not have predicted the situation that is currently facing Northern Ireland, a century after partition.

The Northern Ireland Protocol, the part of the UK’s Brexit withdrawal agreement that creates a de facto border in the Irish Sea, has prompted resentment and widespread protest. The slogan ‘No Irish Sea Border’ can be seen on walls and lampposts from Londonderry to Larne.

The deal replaced the already-controversial Irish border backstop, designed to guarantee an open border between Northern Ireland and the Republic of Ireland regardless of the final terms of the Brexit deal.

There are more than 200 crossing points that straddle the land border between the two countries. Just a handful of crossings traverse the Irish Sea. This was enough to convince leaders in Westminster and Brussels in October 2019 that the Protocol offered a more palatable solution.

Certainly, it avoided the need to create a ‘hard border’ on the island, a prospect that was unthinkable for communities and parties across the political divide. Army checkpoints were phased out in Northern Ireland after the 1998 Good Friday Agreement called an end to decades of violence between Protestants and Catholics.

The Protocol keeps Northern Ireland in the European Union’s single market for commercial goods. However, this means that most goods passing through the country’s ports would now be subject to EU customs procedures, generating additional red tape, costs and delays for businesses operating across the British Isles.

A return to violence

The UK and EU agreed to a three-month grace period to allow businesses time to adjust to the new processes. But the threat of border checks for the first time in 20 years has stoked existing tensions in unionist areas. They felt increasingly marginalised by inaction in Westminster and the Northern Ireland Assembly at Stormont. In February, custom checks at ports in Larne and Belfast were suspended amid safety concerns for staff.

By the end of March, violence had escalated among those angered both by the terms of the Protocol and by the perceived police mishandling of breaches of Covid-19 regulations. Violent scenes erupted at the interfaces between unionist and nationalist communities across the province.

Footage of the charred remains of a hijacked double-decker bus on Shankill Road in west Belfast resonated around the world. A stark reminder that, in many areas, the trauma of the Troubles still lingers close to the surface. There’s been a marked upsurge in attacks on the police and local media in recent years, and more than 160 security-related deaths in Northern Ireland since the Good Friday Agreement was signed.

The EU and the UK agreed the Protocol together…Unilateral decisions and international law violations by the UK defeat its very purpose and undermine trust between us

Maroš Šefčovič
Vice-President, European Commission for Interinstitutional Relations and Foresight

Relations between the UK and Brussels also took a turn for the worse in March when the UK government announced it was delaying the introduction of a sea border on food, parcels and pets until October. The European Commission responded by launching legal action against the UK. Maroš Šefčovič, Vice-President of the European Commission for Interinstitutional Relations and Foresight, said: ‘The EU and the UK agreed the Protocol together. We are also bound to implement it together. Unilateral decisions and international law violations by the UK defeat its very purpose and undermine trust between us.’

The UK claims extending the grace period is ‘temporary [...] lawful and part of a progressive and good faith implementation of the Northern Ireland Protocol’. However, the Commission points out that this isn’t the country’s first misstep on this issue. In 2020, the UK proposed clauses in the Internal Market Bill that threatened to undercut many terms of the Protocol. These were ultimately removed in December.

Stormont has no formal role in the EU–UK talks. The power-sharing coalition led by Northern Ireland’s two largest political parties, the Democratic Unionist Party (DUP) and Sinn Féin, re-entered devolved government in January 2020 after a three-year hiatus following a bitter row over a green energy scandal.

The Good Friday Agreement introduced a special voting mechanism that requires cross-community consent between unionist and nationalist parties on controversial issues. However, the UK government argues that as the Protocol is an international – rather than a devolved – matter, normal assembly procedures do not apply. Instead, the Protocol requires a simple majority, with the first consent vote scheduled for 2024.

Unionists, currently a minority in the Northern Ireland Assembly, supported the UK leaving the EU and remain bitterly opposed to the prospect of a trade barrier in the Irish Sea. They allege that the Protocol violates the Good Friday Agreement’s principle of consent and threatens the peace process. A pan-unionist group of politicians have taken matters into their own hands and are seeking a judicial review of the Protocol and its regulations.

The legal challenge argues that the Protocol conflicts with the Good Friday Agreement and Article 6 of the Act of Union (Ireland) Act 1800, which guarantees free trade within the British Isles. It has the backing of the current First Minister, Arlene Foster, and former First Minister David Trimble, one of the primary architects of the Good Friday Agreement. Former Stormont Attorney-General John Larkin QC is acting as counsel to the claimants. A hearing took place in Belfast’s High Court in mid-May and could go to the Supreme Court on appeal.

Separate legal challenges to the Protocol have also been proposed, including a class action launched in the High Court in London, which argues that the Protocol discriminates against businesses involved in trade between Northern Ireland and Great Britain.

Seven out of 18 of Northern Ireland’s constituencies voted to leave the EU in the 2016 referendum. Eleven voted to remain. In a recent address to students at University College Cork, Justice Minister Naomi Long put it this way: ‘Brexit forces a very black and white, binary set of choices on Northern Ireland’s society. Northern Ireland’s society functions best when we have shades of grey, because that can accommodate a wide spectrum of views.’ This goes far in explaining why the province remains divided on so many issues.

The border question wasn’t the only factor in the Brexit vote, but it remains one of the most contentious. The fallout has cast a dark shadow over Northern Ireland’s centenary year. It’s also put added strain on talks with ministers in Dublin at a time when the pandemic has made cross-border cooperation more critical.

In April, Arlene Foster announced she was stepping down as DUP leader and First Minister, saying the Protocol had ‘served to destabilise’ the country. Northern Ireland’s Agriculture, Environment and Rural Affairs Minister, Edwin Poots, who will be DUP leader as of 28 May, has vowed to do away with it altogether. In a recent poll by Queen’s University Belfast, more than two-thirds of respondents voiced concerns about the impact of Brexit and the Protocol on the local economy and political stability. Legacy issues and lack of accountability threaten to exacerbate tension in Northern Irish–Westminster relations. Tempers continue to flare in unionist and nationalist areas putting pressure on all parties to find solutions before the next potential flashpoint: the loyalist marching season in July.

Ruth Green is Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org

Join the IBA

Expand your international network, gain new business and learn about the latest legal developments through IBA digital content and events, with IBA membership. Available for individuals, students, law firms, bar associations and corporations.

Find out more