A Re-cap

The Good Friday Agreement (GFA)

The 1998 GFA brought an end to the 30 years of violent sectarian strife, euphemistically known as ‘The Troubles’. The GFA was carefully constructed so as to balance the competing positions of both communities and to remove all infrastructure on the border between N and S Ireland.  Importantly, it also created a power-sharing system in N Ireland, with the largest political party appointing the First Minister and the second largest party appointing the Deputy First Minister. 

The GFA was ‘guaranteed’ by the UK and the Republic of Ireland both being members of the EU and therefore subject to the same trading and legal arrangements. When the UK left the EU, it became necessary to work out a new arrangement for Northern Ireland which did not risk re-creating a border between N and S Ireland, but still enabled the UK as a whole to be treated as a third-country outside the EU.

The Northern Ireland Protocol (NIP)

A third country outside the EU requires a land border. The solution to squaring this complex and sensitive this circle (one of the most difficult elements of the UK’s departure from the EU, along with the status of Gibraltar) was The Northern Ireland Protocol (the NIP), an integral part of the broader Trade and Cooperation Agreement between the UK and the EU (The TCA).

The NIP allows N Ireland to remain in the EU Single Market, but takes it out of the Customs Union.  This deliberate fudge imposes the requirement to carry out checks on goods coming from GB to N Ireland to  avoid them entering the EU’s Single Market via the ‘back door’ of N / S Ireland trade.  Since the GFA means there can be no infrastructure on the N/S Ireland Border, those controls have to be carried out ‘in’ the Irish Sea – in practice on arrival of goods in N Ireland.

The UK has unilaterally suspended many of the checks.  A decision which, at the time, led to enforcement action by the EU.  That legal action has since been suspended, with the unimplemented status quo seeming to suit everyone.

Where are we now?

Politically, the DUP had enjoyed electoral dominance since the signature of the GFA and had always been the largest Party at Stormont.  But, at the last set of elections, Sinn Fein won the largest number of seats, forcing the DUP into second place.  This exacerbated a growing Unionist perception that the effect of the NIP was that N Ireland was increasingly being treated differently from the rest of the UK.  They felt N Ireland’s status as an integral part of the UK was weakened and the fact that checks were being implemented on some goods moving between two constituent parts of the UK added weight to their sense of grievance.  This sentiment led the DUP to pull out of power-sharing in N Ireland, blocking the effective operation of political power in Stormont. 

At least in part to attempt to entice the DUP back into power by demonstrating that it understood and supported their position, the UK Government had proposed new legislation in the shape of the NIP Bill which would unilaterally dis-apply parts of the NIP.  The draft legislation triggered further retaliatory legal action from the EU.  However, under the premiership of Sunak, attitudes on both sides have softened, with both the new piece of legislation and the EU’s retaliatory legal action currently suspended and PM Sunak apparently confirming to President Biden that he wanted a solution before the 25th anniversary of the GFA in April this year.

But whilst political bilateral relations between the UK and the EU may be warming, the DUP/Sinn Fein relationships remains as frozen as ever. According to the GFA, a new government must be formed within six months of an election.  New elections were due on 28 October.  However, the UK SoS for N Ireland extended that deadline to January 19 to “to create the time and space needed for talks between the UK Government and the EU Commission to develop and for the Northern Ireland Parties to work together to restore the devolved institutions as soon as possible”. 

The space for that dialogue remains constrained.  In N Ireland,  Sir Jeffrey Donaldson, the DUP leader, has set out seven tests which it says must be met before it will re-enter power-sharing and stated that “The Protocol [was] unsustainable and it has to go…and…be replaced with arrangements that restore NI’s place in the UK”.  And in Westminster, many Conservatives remain strongly opposed to the role of the ECJ in the NIP.

On the other side, the EU is equally clear that there can be no re-negotiation of the NIP, which it views as an integral part of the larger Trade and Cooperation Agreement between the UK and the EU. Indeed, protection of the Single Market has become an even greater imperative for the EU, with a number of EU Member States making clear their immoveable opposition to an unprotected border with a third country.

Are there grounds for optimism?

Finding a solution to the NIP would go a long way toward ‘stabilising’ the EU-UK relationship, which has been very volatile over the last six years.  The German Foreign Minister, speaking in London last week, characterized N Ireland as ‘the Achilles heel of the EU’s relations with the UK’ and argued for a ‘responsible and pragmatic solution for Northern Ireland…on the basis of existing agreements’.

M Varadkar commented said that both sides had ‘made mistakes in the handling of Brexit’ and that ‘perhaps [the Protocol] was a little bit too strict.’ He vowed to be “flexible and reasonable” in seeking solutions, though he was also at pains to note that this did not mean the NIP was up for re-negotiation.

It seems unlikely that such similar comments by German and Irish Ministers would have been made without coordination and consultation in Brussels, demonstrating both the EU’s willingness to work with Rishi Sunak’s new government and Mr Sunak’s determination to find a solution to the dispute before April.  This sense of cautious optimism was further bolstered by the announcement earlier this week of an agreement to grant the EU access to the UK’s customs database in real-time: such access would help reduce the need for checks on cross-Irish-Sea traffic – removing one of the DUP’s main concerns.

What Might a Compromise Look Like?

The BCC has suggested a number of measures which would seek affect the implementation, rather than content of the NIP.  These include:

  • lifting veterinary checks on agrifood exports;
  • a negotiated opt-out from VAT rules for small exporters; and
  • allowing the CE mark continue to apply to goods sold in Britain.

The EU has signaled its willingness to be flexible in the implementation of the NIP and offered to reduce checks on goods between Britain and Northern Ireland.  Some additional concessions that would further soften the impact of the NIP’s implementation might include:

  • formalizing the “grace periods” (effectively accepting the current status quo – something M Varadkar appeared to accept when he noted ‘we’ve seen that the Protocol has worked without it being fully enforced’);
  • agreeing whether goods circulating in N Ireland should comply with EU or UK regulations;
  • devising mechanisms to consult N Ireland’s institutions over any future EU regulations it must accept (one of the DUP’s seven tests); or
  • agreeing a compromise on the role of the ECJ in policing the NIP (perhaps an agreement that English courts ‘take account of’ ECJ decisions, but be bound by them).

Would this be Enough for the DUP?

These are compromises with which it seems the EU could probably live.  As (probably) could the majority of the Conservative Party.  But there remains a significant gap between these concessions and the demands of Unionism (and some right-wing elements of the Conservative party).  And the timing is not helpful to a political solution. Ostensibly, new elections in N Ireland should be called on or before 19 January.  But in light of the more positive political atmosphere the UK SoS has further postponed calling for new elections.  The more pressing deadline appears to be the 25th anniversary of the Good Friday Agreement.

It appears that London accepts the DUP’s seven tests – Julian Smith, the former Northern Ireland secretary warned that any deal would require “radical political & practical solution[s]” and that “legal cheeseparing” by Brussels would be insufficient to deliver a solution.

The DUP view the concessions from Brussels and London’s apparent acceptance that the backing of the Unionist community is an essential pre-requisite to any solution as vindication of their hardline stance on the NIP and power-sharing.  That suggests that it is unlikely the DUP would be tempted back into power-sharing by any list of concessions which did not amount to a fundamental re-drafting of the NIP.  And even if such a list could be devised, progress in N Ireland would still require the DUP to accept returning to a power sharing arrangement in which they were the junior partner to Sinn Fein.

With strengthening support in the polls and time running short for the UK Government, the current impasse appears to suit the DUP.  Given this, there is little to suggest they are likely to rush to change their stance.  In fact, it seems more likely that they will continue to hold out, raising the prospect of a continued lengthy interruption in the exercise of devolved power in Northern Ireland.

Photo of Thomas Reilly Thomas Reilly

Ambassador Thomas Reilly, Covington’s Head of UK Public Policy and a key member of the firm’s Global Problem Solving Group and Brexit Task Force, draws on over 20 years of diplomatic and commercial roles to advise clients on their strategic business objectives.

Ambassador…

Ambassador Thomas Reilly, Covington’s Head of UK Public Policy and a key member of the firm’s Global Problem Solving Group and Brexit Task Force, draws on over 20 years of diplomatic and commercial roles to advise clients on their strategic business objectives.

Ambassador Reilly was most recently British Ambassador to Morocco between 2017 and 2020, and prior to this, the Senior Advisor on International Government Relations & Regulatory Affairs and Head of Government Relations at Royal Dutch Shell between 2012 and 2017. His former roles with the Foreign and Commonwealth Office included British Ambassador Morocco & Mauritania (2017-2018), Deputy Head of Mission at the British Embassy in Egypt (2010-2012), Deputy Head of the Climate Change & Energy Department (2007-2009), and Deputy Head of the Counter Terrorism Department (2005-2007). He has lived or worked in a number of countries including Jordan, Kuwait, Yemen, Libya, Iraq, Saudi Arabia, Bahrain, and Argentina.

At Covington, Ambassador Reilly works closely with our global team of lawyers and investigators as well as over 100 former diplomats and senior government officials, with significant depth of experience in dealing with the types of complex problems that involve both legal and governmental institutions.

Ambassador Reilly started his career as a solicitor specialising in EU and commercial law but no longer practices as a solicitor.