The Northern Ireland Protocol: can’t live with it, can’t live without it

The tense, three-way relationship between Britain, the European Union and Northern Ireland that leapt into the headlines last week following the abortive attempt by Brussels to invoke Article 16 of the UK-EU Withdrawal Agreement, is the single most dangerous legacy of Brexit.

The Northern Ireland Protocol, of which Article 16 provides a last-resort get-out clause, challenges UK sovereignty at the same time as it divides Unionists and Nationalists in Ulster. It provides for an open border on what we must all now call the island of Ireland, keeping NI part of Europe’s Single Market, regulated by Brussels (with Dublin as its surrogate), rather than London. At the same time, it creates a customs border down the Irish Sea, rendering the province’s official status as part of the UK customs territory moot at best.

In purely practical terms, the protocol makes it difficult for businesses in England, Scotland and Wales to export goods to what is nominally the fourth member of the Sovereign’s supranational quartet – the one that, incidentally gives the UK its name – the United Kingdom of Great Britain and Northern Ireland.

Supermarkets have gaps on their shelves previously filled by meats, cheeses and other comestibles from Britain. Manufacturers are claiming that their just-in-time assembly lines have been thrown into disarray. It is even said that potatoes from Scotland are being turned away by inspectors because any soil that may remain on them is not EU-rated.

A number of companies on the mainland have given up on sending their products to NI. There is too much hassle and too much paperwork involved. In short, they can’t be bothered. Unionists are dismayed and angry. Republicans are secretly thrilled. Consumers are left wondering what happened to their usual selection of Stilton and steak and kidney pies.

On the plus side, Northern Ireland businesses can now trade with the EU just as they did before, but via the Republic, not the UK. Companies are already sending trucks laden with their products down to Dublin and Rosslare, rather than via Liverpool and Dover, knowing that there is no need for Brexit-related paperwork and that they can disembark in Roscoff, Cherbourg or Dunkirk without being stopped by either the Douane or the police. This is a unique advantage that may yet come to be appreciated, but it does not fit well into most Unionists’ preferred future.

Readers will recall that the Johnson government made a pre-emptive attempt to nullify the protocol by inserting its abolition into the Internal Market Bill published 9 September. The attempt failed after the row that followed the admission by the NI Secretary Brandon Lewis that it broke international law. When the Commission in Brussels, having kicked up a fuss about the need to preserve the full integrity of the withdrawal agreement, subsequently sought to get around it over concerns that Covid vaccines intended for the EU might end up in the UK via Northern Ireland, the irony was glaring.

All that was needed to further ratchet up the dispute was a full-blooded UK response, which duly came when Johnson threatened that he might invoke Article 16, not just to keep the Stilton and meat pies flowing but to protect construction workers and officials working at new customs facilities in the ports of Belfast and Larne who had been threatened by Loyalist thugs.

All of which brings us to the larger question: post-Brexit, is Northern Ireland less or more an indivisible part of the UK?

Unionists of all stripes are saying that they have been betrayed, and that is obviously true. Nationalists, conversely, see the protocol as a useful marker along the road to Irish unity, and that may also be true.

In terms of the larger UK-EU negotiation, the protocol – sounding like an edict from the old East Germany – was just about the last thing Johnson wanted on his plate when he became prime minister. Theresa May had dithered disastrously over what was then called the Northern Irish Backstop. She didn’t want it. That much was clear. But she couldn’t see any way round it. Either there would be a customs border in Ireland or there wouldn’t. Short of abandoning Brexit or, in effect, issuing an invitation to the IRA to resume hostilities, there was no obvious way out.

Johnson faced exactly the same dilemma. In August, 2020, he told Unionists that an Irish Sea border would only be agreed “over my dead body” – a death before dishonour pledge he had previously made in respect of the third runway at Heathrow. He didn’t mean it, course, just as he hadn’t meant it when he said he would throw himself under a bulldozer if the runway project went ahead.

Instead, he rebranded the Backstop as the Protocol and signed up to it, his one caveat being that at a future date, but not before 2024, the Stormont Assembly could vote to replace its provisions with something else, yet to be defined, that would have to be agreed with Dublin and Brussels.

The problem is – as is always the case in this remnant of John Bull’s Other Island – that Northern Ireland (or the North of Ireland, as nationalists invariably refer to it) is two countries squeezed uncomfortably into one.

In the old pre-Troubles days, Protestants and Unionists were one and the same and, by some margin, the larger of the two communities. In the 1950s, 63 per cent of the population were Unionists. Today, the balance has shifted dramatically. There are now more Catholics at school than Protestants, and by 2030 at the latest a majority of the electorate will be Catholic. Thus, Unionism, institutionally predicated on the notion of “a Protestant Parliament for a Protestant People,” is set to become a minority pursuit.

According to the latest polls, the Democratic Unionist Party will be runners-up in the next Stormont Assembly elections to Sinn Fein, a war-laden party whose entire raison d’etre is Irish unity. Smaller Unionist groupings will boost the pro-British caucus, but, equally, the moderate SDLP will add its voice to the demand for an end to partition. In-between will be the Alliance Party and the Greens, both rising in popular esteem and both, though shorn of dogma on the subject, entirely open to the idea of unity.

This is the background to the protocol debate. Don’t let anyone tell you differently.

To the DUP and its collateral branches, the deal with the EU is the Devil’s instrument, which renders them foreigners in their own country and thrusts them into the unwelcome embrace of the Irish Republic. It may sound like a chapter out of the Spike Milligan satire Puckoon, but the danger is that, with emotions high, things could quickly get out of hand.

It’s not as if we haven’t been here before. In 1985, the Rev Ian Paisley led a populist revolt against the Anglo-Irish Agreement that gave Dublin a consultatative role in the affairs of Northern Ireland, starting (and ending) with the mantra, “Ulster Says No!” In parallel, innocent Catholics were kidnapped and tortured, some of whom ended up strung from meathooks. Eleven years earlier, the Loyalist-inspired Ulster Workers’ Strike brought down the Sunningdale Agreement that provided for power-sharing in a revived Stormont. Loyalist bombs were exploded in Dublin and Monaghan, killing 34 civilians. Going further back, to 1912, Unionists, in their fervour to defeat Home Rule, queued round the block to sign the Ulster Covenant, some in their own blood, while others took up arms and prepared for war.

From both political perspectives, the protocol is something else entirely. The border question is the Ulster question. It was in 1921 – exactly 100 years ago – that Britain decided the only way out of the Irish imbroglio was partition. The border between North and South was fixed; customs posts were established; the RUC built barracks along the new line of control. Nationalists were told that they were no longer Irish, but British, and if they didn’t like it, they knew where they could go. The old IRA, having been interned during the war by the governments of both states, launched a vicious border campaign in the 1950s and early ’60s that, after a ten-year interval, gave way to the “long war” conducted by the Provisional IRA that by the time it was brought to a close by way of the Good Friday accords had yielded a death toll in excess of 3,500.

The Northern Ireland Protocol, engineered to take account of the fact that the tiny statelet to which it applied was simultaneously British and Irish, and therefore both inside and outside the European Union, was a victim of its own too-clever-by-half architecture. Yet there it is, and it is difficult to see what could replace it. Britain, Ireland and the EU are due to sit down together soon, watched over by the DUP and Sinn Fein, in the hope of coming up with a form of words that will give offence to no one and allow “normal” trade to continue uninterrupted by competing identities and threats of violence. We should wish them luck.