Roderick Crawford: We need a solution to the problems caused by the Northern Ireland Protocol, not another deal

Their aim is to make the movement of goods easier between Great Britain and Northern Ireland and address state aid and the role of the European Court of Justice — all this whilst securing the EU’s Single Market.

Quite how effectively these reforms will work we do not yet know.

What we do know, is that the issues that need to be addressed go beyond technical/regulatory reforms alone and the aggregate of these reforms and their legal and political packaging will be key if the core political problems with the protocol are to be addressed.

This is a crucial moment for the negotiations as they start to clear the technical work. There will be pressure for a deal to be finalised and announced based on this work alone.

One of the great mistakes in the negotiations over Brexit was the UK giving into pressure in November and December 2017 and accepting a simplistic solution on alignment in the Joint Report of 2017.

That is where the problem of the protocol arose, not in November 2018 when Theresa May signed the Withdrawal Agreement with its ‘Backstop’ or when Boris Johnson signed the reformed Protocol in October 2019.

Alignment was baked into any agreement the UK could sign with the EU after December 2017, and then strictly applied.

There are signs that — once bitten, twice shy — the UK is not prepared to find itself with buyer’s regret again. They are right to do so.

The negotiators need to work not only on the technical issues but on the wider protocol itself. The protocol was negotiated to protect the Good Friday Agreement. Even avoiding a hard border became a quasi-legal requirement because it ‘became’ a necessity for continued North-South cooperation.

This was a stretch, but the point is that the protocol’s justification is intimately bound up with the Good Friday Agreement. However, its design has been determined by an interpretation of the agreement that over emphasised North-South cooperation and ignored Northern Ireland’s place in the UK.

One reason for this is that the EU didn’t understand the Good Friday Agreement.

However, though the EU’s misunderstanding of the Good Friday Agreement has caused much of the problem it also holds hope for a solution.

This is explained in greater length in my report for the London-based Think Tank, Policy Exchange — The Northern Ireland Protocol: The Clash of Two Treaties.

The member states of the European Union gave the European Commission a mandate to negotiate a withdrawal agreement with the UK. As far as the issues on the island of Ireland were concerned, it stipulated that “In line with the European Council guidelines, the Union is committed to continuing to support peace, stability and reconciliation on the island of Ireland. Nothing in the agreement should undermine the objectives and commitments set out in the Good Friday Agreement in all its parts and its related implementing agreements”.

A few months later they committed to a set of guiding principles for any solution that emphasised north-south arrangements, but they did specify, as their first principle for any solution, that the institutions established by the Good Friday Agreement would have to be able to operate effectively.

Due to the protocol, the institutions are not operating.

Just as the UK signed up for things it did not entirely understand during the negotiations, so has the EU.

It designed a protocol that secured some aspects of the Good Friday Agreement to the detriment of others, but it committed to secure the whole of the agreement.

The EU has made commitments that it has still to meet. These EU commitments are the key to arriving at a solution to the protocol problem.

The reason for this is that the chief objective of the Good Friday Agreement was not the avoidance of a hard border: it was the creation of a consensus on the governance of Northern Ireland.

The protocol has changed that governance framework and the cross-community consensus on governance has been lost. In consequence, the EU’s mandate has not been fulfilled.

This should matter in Brussels because not only does this mean that its protocol solution fails to meet the mandate it was required to deliver, but the objectives of the protocol itself have been fatally undermined.

Of the eight objectives of the protocol, only one is fully met — avoiding a hard border on the island of Ireland.

Of the rest, north-south cooperation is largely met, but at the cost of its key institution not operating, in contravention of the EU’s first principle for any solution.

Of the other six objectives, the protocol fails to deliver, not least because it does not protect the Good Friday Agreement in all its dimensions. All the objectives relate to, or are derived from, the Good Friday Agreement.

The EU is legally, morally, and politically bound to deliver a solution that upholds the Good Friday Agreement in all its dimensions.

That is the commitment that the EU has, very specifically, made. We need a real and lasting solution, not another ‘deal’.

• Roderick Crawford is a Senior Research Fellow at Policy Exchange. He was founding editor of Parliamentary Brief 1992-2012, a magazine he established to promote a political settlement in Northern Ireland. His latest report, The Northern Ireland Protocol: The Clash of Two Treaties, was published on 1 February 2023 (Policy Exchange) and is available at: www.policyexchange.org.uk