Comment

Good Will and the Northern Ireland Brexit Protocol

Bobby McDonagh / Mar 2021

Lord (David) Frost. Photo: European Union 2021

 

The British Minister for Brexit, David Frost, wrote recently that he hoped that EU countries would shake off what he called “any remaining ill-will” about the UK’s departure from the EU with a view to building a friendly relationship. A laudable objective and one that I fully share. However, the dogs in the street know that it was this same David Frost who, just a few earlier, had acted, gratuitously and deliberately, in a way that diminished trust.

The decision to breach trust again in relation to the Northern Ireland Protocol, by acting unilaterally rather than through the agreed joint procedures, was in obvious contradiction with Frost’s subsequent appeal for good will. The EU is committed to trying to build a friendly relationship with the UK. Although justifiably angry, it has wisely made clear that, for its part, it will act deliberately within the rule of law to counteract the recent British action by using the legal means available to it. Pending the outcome of those legal proceedings, which will take some time, the immediate focus should be on the breach of the spirit of the Protocol, which is evident, and on what can be done to repair it.  

As far as the EU is concerned, it should continue to act with resolute composure. Resolute, because of the underlying realities. Brexit inevitably posed serious challenges for the sensitive balances of the Good Friday Agreement. Neither the nationalist nor unionist perspective could be fully reflected in the arrangements for the UK’s departure from the EU. Therefore, the UK and the EU (including Ireland, the second guarantor of the Good Friday Agreement) reached agreement, in the legally-binding Protocol, on a compromise that respects, to the maximum extent possible, both sets of aspirations.

The EU’s approach also requires composure. It should continue to act calmly in the interests of the people of Northern Ireland and not respond in kind to Frost’s impetuous behaviour. The fact remains that the detailed implementation of the Protocol will require both sides to work together constructively in a spirit of mutual trust. The EU has no alternative to working pragmatically and sensibly, as it had been doing with Frost’s predecessor as British negotiator, Micheal Gove, with whom significant low-key progress was being made. The implementation of the Protocol has two fundamental objectives: effectiveness and flexibility. The point of equilibrium is maximum flexibility compatible with protection of the integrity of the EU’s single market.

The UK, for its part, if it is not willing to withdraw last week’s decision, must - at a minimum - make absolutely clear that its measures are strictly and irreversibly temporary in nature. It has already described the measures as temporary, but this will remain unconvincing unless it accepts privately and publicly that there will not, under any circumstances, be further unilateral extensions of the measures in question, and that the possibility of any prolongation will be discussed and agreed only within the agreed joint structures. Moreover, it should resolve and make clear to its EU partners that it will take no other action that is at odds with the spirit of the Protocol or indeed with the constructive progress that was being made through the EU-UK Joint Committee.

The British Government should also consider carefully the messages its actions are sending, unwittingly or otherwise, to critics of the Protocol in Northern Ireland. By acting unilaterally, it has given the impression that the implementation of the Protocol is for the UK acting alone, rather than an internationally binding requirement to be carried out, necessarily in agreement with the EU. In the short run, this has been welcomed by unionist critics of the Protocol. However, in the longer run it gives them another stick with which to beat the UK Government and could weaken London’s hand in winning their acceptance of a legally binding international agreement that does not depend on the whim of a British negotiator.

Last week, an umbrella group of loyalist paramilitaries announced the withdrawal of their support for the Good Friday Agreement. The idea that people who, along with their republican counterparts, brought such needless misery to the people of Northern Ireland, are in a position to pronounce on the balance of the Protocol is ludicrous. But it is a reminder that those with a proud record of supporting peace in Northern Ireland, including the British and Irish Governments and their European friends, should redouble their efforts to implement, with integrity, a delicate and necessary agreement achieved with such difficulty.

Appeals for good will should in future be directed towards the people whose good will is required, and reflected in actions that merit trust, rather than in articles pitched to a domestic political constituency.

Bobby McDonagh

Bobby McDonagh

March 2021

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