This article appeared in El Pais (in Spanish)
The struggle continues between the EU and the UK government over the implementation of the protocol. It is time to put aside the posturing on both sides and face reality.
We must face two realities. The first is that the Good Friday Agreement (GFA) was an identity issue. The second is that there is no clean and perfect way to solve the Northern Ireland post-Brexit issues. If there were, it would have been found during years of laborious negotiations. Something has to give if any kind of peace and stability is to be preserved in Northern Ireland.
It does not bear repeating that there are two communities in Northern Ireland: one Unionist and one Republican. The GFA allowed each community to feel that its own identity was being preserved. Seamless trade (and movement of people) with both Great Britain and the Republic of Ireland combined with power-sharing to allow each community to feel that its identity had been preserved. The republican community could feel Irish, the unionist community could feel British. The consent of both communities to any change was an essential part of the GFA.
Brexit has shattered that arrangement. So why did both the UK and the EU sign the Northern Ireland protocol when it was obvious that, as written, it violates the identity of the Unionist community and could never command bipartisan support?
One explanation is that the UK government signed the protocol cynically. It knew full well that it would never stand and would have to be revised or abandoned altogether. But, given his personality, Boris Johnson might have seen that as a problem for another day.
What about the EU? Either the EU negotiators did not understand the politics and culture of Northern Ireland. Or they also knew it would never stick and, just as cynically, believed it could be later used to bring the whole of the UK back into the EU’s regulatory orbit and under the jurisdiction of the European Court of Justice – a belief in which they might have been encouraged by Theresa May’s negotiating stance.
We are now clear that such dynamic alignment is not going to happen. And there is no point in going back over the discussion as to whether Brexit was a good or a bad idea. What is done is done. I say that as an anti-Brexit voter.
The reality is that peace in Northern Ireland can only be preserved if both communities once again feel that their identity is respected and preserved. This cannot happen if there are statutory borders, either with the Republic or with the rest of the UK. Or if the EU has jurisdiction over the province without democratic consent.
Nor does it matter if the borders are digitised, seamless and, for all intents and purposes, virtually invisible. In terms of identity, those borders will continue to hold an important place in the hearts and souls of Northern Ireland’s communities.
When it signed the original agreement, the UK government was wrong – and may well have known it – to pretend that shiny and currently non-existent technology could provide an answer. Technology can never solve political issues. Just as the Northern Ireland business community is wrong today to claim that these are purely technical issues and that politics should be kept out of them. A bizarre position.
None of us, including President Biden, should be in any doubt. The Northern Ireland protocol, as it currently stands, violates the GFA. Anyone who claims otherwise, and there are many who do, is either misinformed or disingenuous, if not outright dishonest.
So where do we go from here?
The British government would be within its rights to invoke article 16 and suspend parts of the protocol. Just as Ms von der Leyen was prepared to invoke article 16 and unilaterally suspend the protocol on covid-19 vaccines. But this would solve nothing. It would simply take the old protocol off the table and establish a new baseline for what eventually has to happen: a political agreement that is acceptable to all parties.
On trade in goods, the compromise approach is, as always, imperfect. Remove barriers to goods flowing from Britain to Northern Ireland only if they are destined for consumption within Northern Ireland, but not for re-export across the Irish border.
The EU seems to be moving towards such an agreement. It is true that leakages into Ireland and the Single Market are likely. The magnitude of these leakages is unknown, but a reasonable starting assumption is that they are not large enough to undermine the entire integrity of the single market. After all, leakage of non-compliant goods into the EU single market from other parts of the world already occurs through many of Europe’s major ports, where, despite the thin layer of protection enshrined in law, it is simply impracticable to check and recheck all goods arriving from around the world.
If it were, there would not be, for example, large quantities of cocaine flowing into the EU from producer countries. However, despite these (probably quite substantial) leakages, the single market has not collapsed as a result. The idea that some leakage across the Irish border would do just that is laughable.
The compromise solution is a political fudge that is bureaucratically and technically imperfect. But it is the only way forward. And the EU is adept and well used to making technically imperfect political fudges in the management of its own affairs (just look at the structure of the single currency). The issue is therefore not technical, but one of political will.
The other sticking point revolves around the jurisdiction of the European Court of Justice. The reality is that the original idea that Northern Ireland could remain part of the single market has not worked. If you want to preserve identities, you have to think differently. Politically, the province will have to be seen as having a special status by being both inside and outside the single market at the same time. Another essential political mind trick that bureaucrats will not like.
In such a situation, having the ECJ as the sole arbiter of disputes simply does not work. The UK government has suggested an independent arbitration body, as is normal in all such arrangements. Perhaps someone can come up with a better idea, but we have yet to see one.
The options available are clear. Agree now to an imperfect political compromise and move on. Wait until 2024, when the protocol will surely be rejected by the Unionist community when it is submitted to Northern Ireland for political consent. Or invoke Article 16 and start from scratch.
Joe Zammit-Lucia, is a founder of the RADIX network of public policy think tanks (www.radixthinktank.org) and a contributor to Agenda Publica