Brexit: What is the Northern Ireland Protocol and why is it so contentious?

·8-min read
A lorry at Belfast Harbour, as controversy over Brexit’s Irish Sea border deepens (Brian Lawless/PA) (PA )
A lorry at Belfast Harbour, as controversy over Brexit’s Irish Sea border deepens (Brian Lawless/PA) (PA )

Boris Johnson is posed to announce legislation that will allow Britain to override the Northern Ireland Protocol agreed as part of the Brexit deal.

The Prime Minister will speak with political leaders in Belfast on Monday to encourage them to restore the country’s government.

The Democratic Unionist Party (DUP), the country’s second largest party, has effectively paralysed the Government by refusing to join the Executive in protest over the Protocol.

Speaking ahead of his visit, Home Office minister Rachel Maclean told Times Radio that the protocol “needs to be reformed”.

“It isn’t working in its current format and we need to have the executive up and running, because that is how we will actually deal with those issues affecting businesses and the cost of living in Northern Ireland.”

EU leaders last Tuesday warned the Prime Minister not to attempt to break away from the arrangement agreed with the bloc in 2019.

It followed a tense phone call between Mr Johnson and Irish premier Micheal Martin on Tuesday, in which the prime minister claimed the situation with the Protocol was now very serious. A Downing Street spokesperson said Mr Johnson “reiterated that the UK Government would take action to protect peace and political stability in Northern Ireland if solutions could not be found”.

In response, Tanaiste Leo Varadkar later said Dublin “can’t have any unilateral action from the UK” and asked London to abide by the international agreement they signed.

The Times reported officials working for foreign secretary Liz Truss have already drawn up draft legislation to unilaterally remove the need for checks on all goods being sent from Britain for use in Northern Ireland.

The law would also ensure businesses in Northern Ireland are able to disregard EU rules and regulations and remove the power of the European Court of Justice to rule on issues relating to the region, the newspaper said.

Government sources told the newspaper that the bill explicitly scrapped large parts of the protocol, rather than just giving ministers the power to do so.

Last year the EU outlined proposals to reduce trading disruption and friction witnessed since the protocol came into effect in January.

However, the 27-nation bloc has made clear it does not intend to move on a key UK demand - removing the role of the European Court of Justice in overseeing the protocol.

But what exactly is the protocol and why it is so contentious?

– What is the Northern Ireland protocol?

Part of the Withdrawal Agreement, it was how the EU and the UK overcame the main sticking point in the Brexit divorce talks – the Irish border.

To avoid disrupting cross-border trade and a return of checkpoints along the politically sensitive frontier, both sides essentially agreed to move new regulatory and customs processes to the Irish Sea.

That means the checks are now focused on trade between Great Britain and Northern Ireland, with goods continuing to move freely within the island of Ireland.

Trade from Northern Ireland to Great Britain is largely unaffected by the protocol.

The red tape applies on movement in the other direction. Since December 31, 2020 a range of regulatory animal and plant safety checks have been in operation, including physical inspections for a proportion of arriving freight at new port facilities.

Customs declarations are also required for incoming commercial goods.

– How does the Northern Ireland protocol work?

Northern Ireland remains in the EU single market for goods. The region also applies EU customs rules at its ports, even though it is still part of the UK customs territory.

The protocol also sees Northern Ireland follow certain EU rules on state aid and VAT on goods.

– Who is unhappy about it and why?

Businesses who move goods from GB to NI have been saddled with added costs and reams of new red tape due to the protocol.

There has undoubtedly been disruption, as many traders have encountered problems shipping goods across the Irish Sea.

In the early weeks of 2021, this was evidenced by depleted supermarket shelves in Northern Ireland.

While the bureaucracy has continued to hinder trade since, many businesses have adjusted and adapted their processes to try to minimise the impact of the protocol.

Politically, unionists and loyalists are furious on a constitutional level.

They believe the arrangements have driven a wedge between Northern Ireland and the rest of the UK, with the protocol forcing an economic reorientation with the Irish Republic.

What impact have the local elections had?

Following the historic election result in the local elections last weekend, Sinn Fein is now the largest party at Stormont and entitled to nominate the first nationalist or republican First Minister.

The party’s vice president Michelle O’Neill on Tuesday said the protocol is “here to stay” and urged the DUP to join an Executive at Stormont.

However, the DUP has demanded the UK government take “decisive action” on the Protocol before it nominates ministers for a new Executive.

Ms O’Neill said she had told Boris Johnson that “pandering to the DUP and the dialling up of rhetoric serves no purpose to provide the certainty and stability that people here want to see”.

A protest sign near Belfast’s harbour (PA)
A protest sign near Belfast’s harbour (PA)

– What have the unionists demanded?

Unionist politicians have demanded that the UK government intervene to radically redraw the protocol or ditch it completely.

They have called on the Prime Minister to trigger a mechanism within the protocol – Article 16 – to unilaterally suspend aspects of its operation in order to enter fresh negotiations with the EU on the problems.

While the government has said that the conditions for triggering Article 16 had been met, it stopped short of invoking the mechanism, instead urging the EU to agree to changes.

The protocol has undoubtedly been a factor in the flux that has been witnessed within unionism since the turn of the year.

This has been shown by the chaos engulfing the DUP in recent months, when two leaders – Arlene Foster and then Edwin Poots – were ousted in successive internal revolts.

By refusing to nominate ministers to the Executive after the local elections, Sir Jeffrey Donaldon’s party could paralyse political decision making in Stormont. However, he told reporters in London that he is committed to leading the DUP into political institutions.

Away from the political sphere, simmering discontent within the loyalist community spilled over in April into street violence, with the protocol a significant factor in rioting that broke out in various locations across Northern Ireland.

Boris Johnson (PA)
Boris Johnson (PA)

While there have been fears of further disorder around the summer Protestant loyal order parading season, this has yet to materialise.

With Boris Johnson having previously pledged never to put economic barriers in the Irish Sea, unionists and loyalists view the protocol as a “betrayal” of the Brexit they wanted.

They feel the whole of the UK has not left the EU on the same terms, with Northern Ireland left behind, partially trapped within European structures.

All this is playing out in a year that Northern Ireland marks the centenary of its foundation and as republicans continue to press for a referendum on Irish unity.

– What about the other main parties in Northern Ireland?

Sinn Fein, the SDLP and Alliance were all opposed to Brexit. Those Remain parties insist the problems being experienced in Northern Ireland are a consequence of Brexit, rather than the protocol itself.

While acknowledging that issues with the protocol need to be addressed, they oppose any move to bin the arrangements entirely.

They also highlight the potential benefits of the protocol, in particular the unique status it gives traders in Northern Ireland to sell in both the UK internal market and EU single market without restriction.

– Is the protocol fully operational?

No. The agreement came into force on 1 January 2021 and is now part of international law.

However, late last year the UK and EU agreed a range of grace periods designed to reduce the level of Brexit bureaucracy in the initial months of operation.

Supermarkets and other big food retailers were given three months to adjust to the new food checks.

From April 1, they would have been required to produce vet-approved export health certificates for every animal-based food product they shipped to Northern Ireland.

But before this exemption period ended, the UK government stepped in and unilaterally extended that grace period to the autumn.

Some products are to be prohibited from entering Northern Ireland altogether under single market rules.

Sausages and other chilled meats, which are on that banned list, had been granted a specific six-month grace period to enable their import from GB to continue until June, using temporary certificates.

Taking a differing stance from the unilateral moves of the spring, the UK agreed to extend that exemption with the EU for a further three months.

In regard to the movement of medicines from GB to NI, there is a 12-month grace period in place, with new regulatory processes due in 2022.

What have European leaders said?

Olaf Scholz, the German chancellor, on Tuesday warned Mr Johnson to back down on his threat to override the Protocol.

“No one should unilaterally scrap or break or in any way change the arrangement we agreed on together,” Mr Scholz said.

Belgian prime minister Alexander De Croo said the EU had been “quite clear”.

“Don’t touch this, this is something we agreed on,” he said.

European Commission vice-president Maros Sefcovic said it was “simply not acceptable” for the UK to threaten to unilaterally suspend parts of the Northern Ireland Protocol.

In a statement following his call with Foreign Secretary Liz Truss on Thursday, Mr Sefcovic said: “It continues to be of serious concern that the UK Government intends to embark on the path of unilateral action.”

He said the UK’s approach, with suggestions Ms Truss is readying a law to suspend parts of the Brexit treaty in relation to goods checks between Northern Ireland and Great Britain, was despite the European Union putting forward proposals that “would substantially improve the way the protocol is implemented”.