Brexit and Northern Ireland: Is there a solution?

Boris Johnson
Boris Johnson is in Northern Ireland today. Credit: PA

It’s hard to imagine now that the question of Northern Ireland got so little attention during the EU referendum campaign in 2016. And yet, for six years the question of its stability has dominated Brexit talks, with an intractability that means it remains the one outstanding sticking point. So, as Boris Johnson travels to Belfast to meet five Northern Irish political parties before laying down provocative legislation that would allow the government to override the Protocol and act unilaterally, how did we get to this point- and is there a solution?

The Protocol, signed between the EU and UK, is all about trying to prevent a hard border between Northern Ireland and the Republic.

It’s an issue in which both sides totally agree - that a quarter of a century after the Good Friday Agreement was signed - they do not want the prospect of a north-south divide that could lead us back to the instability of the past. But there are, of course, two major communities in NI - nationalists who don’t want a north-south border, but also loyalists, who don’t want an east-west border, down the Irish Sea. Which makes any agreement a very difficult circle to square.

Theresa May’s solution to this - which ended up being unacceptable to both the most ardent Brexiteers on her backbenches (the ERG) and NI’s largest unionist party, the DUP - was that Northern Ireland would remain in both the single market and customs union. Great Britain, she said, would leave the single market (and in doing so take us out of free movement and allow for new immigration checks) but, in a major compromise, also stay in the customs union.

That would mean that while there would be some regulatory checks from east to west, there would be no checks on goods. That was too much of an east-west divide for the DUP - but in rejecting it and then trusting Mr Johnson - they arguably got something significantly worse. The Protocol - which was Mr Johnson’s solution - paved the way for NI to remain in the single market and customs union, while Great Britain left both. The prime minister hailed the agreement a great victory (although those in Mrs May’s team would point out that it was a solution offered previously that she rejected to protect the sanctity of the United Kingdom) and said there would be no new checks. Now, speaking to trade experts - it was very clear from the Protocol that it did effectively place a border down the Irish Sea. But one Whitehall source close to negotiations argued to me that, in many ways, that was a “moot point” because regardless of what Mr Johnson and British negotiators knew at the time, regardless of whose fault this is - if you like, we are where we are now - and that is in a place with big problems. Because in protecting the openness of the north-south border, which nationalists will cheer, we have got an east-west divide that many unionists feel devastated about and like their very identity is under attack. And their anger is now causing political stalemate at a time of a cost-of-living crisis, because the DUP are refusing to take their seats in the NI assembly until the question of the Protocol is solved. Today the prime minister has tried to take some of the heat out of the row, insisting that talks could still find a landing zone, but he is also preparing to lay down legislation tomorrow that would ultimately allow the UK to act unilaterally to override parts of the Protocol.

To just get technical for a minute - what are the sticking points with the Protocol from a UK government point of view? They basically want no border checks on goods headed from GB to NI.

They say 80% of these goods are low risk, as they are major supermarkets supplying chains in NI and that these companies can use data to prove that there is no risk of goods entering the EU. They believe a trusted trader system can help to prevent border checks in other cases. They also want the role of the European Court of Justice (ECJ) to be removed from the Protocol and a number of other tweaks. To achieve some of this the UK wants the EU to revisit the mandate from member states, which effectively allows negotiators to look for flexibility in the Protocol but not renegotiate it. Today the prime minister has tried to take the heat out of this by toning down the language, from ripping up the Protocol to rewriting parts of it, and, in his article in the Belfast Telegraph, setting out the UK's determination to maintain a soft border north-south, whatever happens.

That follows some quite spiky language from the EU side about the risk of this harming NI's place in the single market.

Sources have also insisted that the plan to introduce legislation in the UK Parliament to override the Protocol unilaterally was only there as an insurance policy. And on that, it's important to remember that while there has been and will be a lot of noise from the EU side on this threat, sources are clear to me that there will only be retaliation if the legislation becomes law. And that could be many months away. The Treasury has already warned internally of the economic consequences of a trade war - and it wouldn't be pretty. Given the fact families are already being badly squeezed with the cost-of-living crisis, no one in the EU or the UK wants to end there.