Katy Hayward / Sep 2020
Maroš Šefčovič, Vice-President of the European Commission, and Michael Gove at a meeting of the Joint Committee to discuss the Withdrawal Agreement. Photo: European Union, 2020
All the people ‘in the know’ predicted it would be this way. There would be slow progress in the UK-EU talks until nearer the time when the clock was running out. Everyone likes a bit of drama – even CETA got it, for goodness sake. And Boris Johnson famously has a taste for the theatrical.
Regardless of how the hundreds of officials involved in the technical talks behind the scenes were getting on, we’d see a big blow-out – maybe an emergency meeting with some forceful words to the gathered press, maybe a walk out, definitely an ultimatum… Anyway, we all expected something in September.
We didn’t expect this. The answer delivered by a minor member of the British cabinet to a question posed near the end of an emergency domestic debate: ‘Yes. This does break international law, in a very specific and limited way’. The law in question? The Withdrawal Agreement as negotiated, endorsed and ratified by the British government.
And, sure enough, the Bill that followed made it absolutely clear: ‘Certain provisions to have effect notwithstanding inconsistency or incompatibility with international or other domestic law’. A Minister of the Crown will have the power to legislate in a way that means certain provisions of the Protocol will ‘cease to be recognised and available in domestic law, or enforced, allowed and followed’.
Now, this was drama alright. But why does it have to be about Northern Ireland of all things? Getting to the compromise of the Protocol near exhausted the stamina let alone the goodwill of the two sides up to this time last year.
We can only speculate as to whether these latest moves are negotiating tactics, high jinx in the lead-up to compromise, popularity-stirring drum-beating for English voters, or a cynical play for a ‘no deal WTO-terms’ exit.
In some ways it doesn’t matter. Because the consequences will only be as negative as they will be long lasting in Northern Ireland. As political games are being played, livelihoods are being lost and hope for a more stable and secure future feels not just slim but naïve.
Northern Ireland is a messy and complex place. There can no such thing as simple solutions here. The situation was uneasy enough without being forced back centre stage of the UK-EU standoff. But seeing as we’re here – where might we go now?
First, let’s be careful not to exaggerate what this means for the Protocol. The UK Government is not talking about walking away from the Protocol. It is actively investing in implementing it (see the £200m Trader Support Service). This is not to say that there is not potential for ‘similar subsequent provisions’ - indeed, the Government has warned us all that these are to come. Nor is it to assure that the implementation will be timely and effective. But we are far from the Government stating that it rejects the Protocol entirely.
Secondly, keep the institutions running. The ball is in the Commission’s court to suggest the next meeting of the Joint Committee. Let that meeting happen. And let it be preceded (not followed) by the Specialised Committee on the Ireland/Northern Ireland Protocol. Leave the drama to the political actors and allow the technical expertise to find details in answer to the dozens of questions that still remain over what the Protocol means in practice.
Thirdly, remember that, just as the Protocol is a compromise, co-owned, so too is the 1998 Good Friday/Belfast Agreement. Indeed, it is legally less certain than the Protocol, given the lack of arbitration mechanisms around it. The faring of the 1998 Agreement depends on the British-Irish relationship. They are of equal importance. Unionist concerns are as valid as those of nationalists and others. The fears are as real. The situation in Northern Ireland is one of great insecurity. The way to address that is not to buckle down on one side or another, but to reach out.
Fourth, plan the next steps with the long-term in mind. The UK-EU Joint Committee and Specialised Committee may be soon off the radar of mainstream British and European politics, but they will have real effect in decision-making for Northern Ireland for the foreseeable future. If bridges are burned over this, it’ll be Northern Ireland that will be cut adrift.
The principles of ‘partnership, equality and mutual respect’ underpinning the 1998 Agreement were not just for the locals; they are required of every player who has taken responsibility for the future of Northern Ireland. And, for better or for worse, that is precisely what the EU did when it ratified the Protocol as part of the Withdrawal Agreement. Although we may fear the worse, the majority of people in Northern Ireland, from all backgrounds, hold hope that will yet prove to be for the better.