Impact of the Protocol on Ireland/Northern Ireland on recent political developments in Northern Ireland

Nicola Newson

Image shows the Parliament Buildings, Stormont, in Northern Ireland

On 3 March 2022, the House of Lords is scheduled to consider the following question for short debate:

Lord Jay of Ewelme (Crossbench) to ask Her Majesty’s Government what assessment they have made of the impact of the Protocol on Ireland/Northern Ireland on recent political developments in Northern Ireland.

Protocol on Ireland/Northern Ireland

Under the terms of the Protocol on Ireland/Northern Ireland agreed between the EU and the UK as part of the Withdrawal Agreement, Northern Ireland has a unique status. It is part of the UK’s customs territory but is subject to the EU’s customs code, VAT rules and single market rules for goods, including sanitary and phytosanitary (SPS) rules to protect animal, plant and public health. The EU and the UK have disagreed over how to implement some of these rules, particularly for goods moving from Great Britain to Northern Ireland. Discussions between the two sides are ongoing.

Different political parties and communities in Northern Ireland also have varying perspectives on the protocol. As the House of Lords Sub-Committee on the Protocol found in its introductory report in July 2021:

While unionists and loyalists object to the protocol being imposed without their consent, nationalists and republicans point out that Brexit was imposed on Northern Ireland against the wishes of its people. This is against the backdrop of a democratic deficit, whereby significant aspects of EU law apply to Northern Ireland without its prior consent. Public opinion in Northern Ireland on the protocol is split down the middle […].

Unionist party leaders signed a joint declaration in September 2021 calling for the protocol to “be rejected and replaced by arrangements which fully respect Northern Ireland’s position as a constituent and integral part of the United Kingdom”. Sinn Féin’s position is that “there is no credible alternative” to the protocol, and that as “an international law, it must be respected”. Other parties have suggested the protocol could be implemented with some adaptations—for instance, Alliance has said “we should make the implementation of the protocol as smooth as possible and obtain as many derogations and flexibilities as we can”. The Social Democratic and Labour Party (SDLP) “recognise[s] there are a small number of outstanding issues with the protocol, but the EU has made very generous attempts to address them and we need to see a deal reached”.

A poll commissioned by Queen’s University Belfast in February 2022 found that 50% of respondents agreed that the protocol was on balance a good thing for Northern Ireland, while 41% disagreed. Similarly, 51% of respondents thought the protocol was appropriate for managing the impacts of Brexit, and 40% disagreed. 64% of respondents viewed the protocol as having a negative effect on the political stability of Northern Ireland, while 22% thought it had a positive effect.

Recent political developments

Resignation of First Minister

Paul Givan of the Democratic Unionist Party (DUP) announced his resignation as First Minister of Northern Ireland on 3 February 2022, to take effect from the following day. In his resignation letter, Mr Givan said that “the delicate balance created by the Belfast and St Andrew’s Agreements has been impacted by the agreement made by the United Kingdom Government and the European Union which created the Northern Ireland Protocol”.

Commenting on the resignation, Sir Jeffrey Donaldson, leader of the DUP, said that over recent months his party had “sought to make the case that the protocol is damaging the delicate political and constitutional balance in Northern Ireland and beyond, and that its economic impact has harmed Northern Ireland”. He believed that the Government had not honoured its commitment to protect Northern Ireland’s place within the UK internal market, and that the protocol “represents an existential threat to the future of Northern Ireland’s place within the union”.

Under the Northern Ireland Act 1998, if the first minister resigns, the deputy first minister also ceases to hold office. Mr Givan’s resignation therefore meant that Michelle O’Neill of Sinn Féin ceased to be Deputy First Minister. Following a resignation, the act also provides a set period of time for the two largest parties in the Northern Ireland Assembly to nominate a first and deputy first minister. If the offices are not filled within the specified timeframe, the secretary of state must propose a date for a Northern Ireland Assembly election. A regular Northern Ireland Assembly election is already scheduled to take place on 5 May 2022.

As the law stood when Mr Givan resigned, the period for nominating the first and deputy first ministers was seven days. However, the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 came into force on 8 February 2022. It extended the period for filling the posts to six weeks in the first instance, extendable in six-week increments up to a maximum of 24 weeks. This applies retrospectively to Mr Givan’s resignation.

The Northern Ireland Executive is made up of eight departmental ministers as well as the first minister and deputy first minister. The departmental ministers remain in office. Under the new legislation, they can remain in office for up to 48 weeks following the resignation of a first or deputy first minister, and up to 24 weeks following an election. However, without a first and deputy first minister, the Executive cannot meet or take decisions.

Brandon Lewis, Secretary of State for Northern Ireland, described Mr Givan’s resignation as “disappointing”. He said the Government wanted “to see a return to ministerial roles immediately, to ensure the necessary delivery of public services for the citizens of Northern Ireland”. He called on Northern Ireland’s political leaders to “quickly take the necessary steps to restore the stability in the devolved institutions that the people of Northern Ireland deserve”.

Mary Lou McDonald, the President of Sinn Féin, said it was not possible to “stagger on in the months ahead without a functioning Executive”. She took the view that “in the absence of a functioning Executive, an early election must be called”.

However, Brandon Lewis said that the election should go ahead as planned on 5 May 2022. He believed the Assembly should be given time to pass remaining legislation ahead of the scheduled election date. Mr Lewis said he hoped that whatever the result of that election, nationalist and unionist parties would nominate first and deputy first ministers, as “the right thing for Northern Ireland is to have the devolved authority of the Executive and Assembly back as soon as possible after 5 May”.

Under the newly passed legislation, when a first or deputy first minister resigns, the secretary of state can propose an election date after the first six-week period but before 24 weeks have elapsed if they consider it is necessary to do so to give effect to the purpose underlying the following paragraph of the ‘New Decade, New Approach’ deal, so far as it relates to representation:

These changes will be given legislative effect consistent with the shared commitment to the principles of power-sharing and cross-community protection contained in the Belfast (Good Friday) Agreement and ensuring there is sufficient representation to command cross-community confidence in the Assembly.

The legislation also extended the time limits for appointing ministers after an election from 14 days to six weeks in the first instance, extendable in six-week increments up to a maximum of 24 weeks.

Checks at Northern Ireland ports

On 2 February 2022, the day before Mr Givan announced his resignation, Edwin Poots of the DUP, Minister for Agriculture, Environment and Rural Affairs, announced he had ordered his officials to stop SPS checks on goods arriving in Northern Ireland from Great Britain.

Mr Poots said that his decision to halt the checks was based on legal advice from the former Northern Ireland Attorney General, John Larkin. He explained that he had sought legal advice in light of a pre-action letter (a formal notification of an intention to bring legal proceedings). A group called Unionist Voice Policy Studies notified the Department of Agriculture, Environment and Rural Affairs (DAERA) in December 2021 of its intention to bring legal action, arguing that implementation of the checks was unlawful without an explicit Executive decision authorising them. Mr Poots said he had tried to submit a paper on the continued implementation of SPS checks for consideration at a meeting of the Executive, but the deputy first minister had not agreed to this, and he had therefore decided to stop the checks. Sinn Féin had previously said it would not agree to the paper being added to the Executive’s agenda, as it maintained there was a statutory obligation to implement the checks. It is reported that the current Northern Ireland Attorney General, Brenda King, previously advised it would not be lawful to stop the checks.

Despite Mr Poots’ direction, the checks continued to take place on 3 February 2022. On 4 February 2022, a High Court judge made an interim order that the checks should continue pending the outcome of judicial review proceedings brought by an unnamed member of Sinn Féin and another applicant. A full hearing of the judicial review claim was scheduled to take place on 7 March 2022.

On 3 February 2022, George Eustice, Secretary of State for Environment, Food and Rural Affairs, characterised implementation of the checks as a devolved matter, saying:

Although the overarching responsibility for international relations rests with the United Kingdom Government, delivering many of the requirements under the Northern Ireland protocol, including agrifood checks, is a devolved matter and responsibility for doing so falls to the Department of Agriculture, Environment and Rural Affairs in the Northern Ireland Executive. This includes checks that take place at Northern Ireland points of entry.

Brandon Lewis said that the Government would look at the legal advice that Mr Poots had taken. He also said these events were “exactly the sort of thing that we have been warning [the EU] about in terms of the stability of the Executive and the decisions the Executive ministers will take in order to ensure that products can move from Great Britain to Northern Ireland in the way they always have done”.

Maroš Šefčovič, Vice-President of the European Commission and co-chair of the Joint Committee (the UK-EU body that oversees implementation of the protocol), described Edwin Poots’ action as “very unhelpful”. He emphasised that the protocol was an international agreement which it was the UK Government’s responsibility to uphold, arguing that “it is by respecting our international obligations and living up to our responsibilities, that trust is built and maintained”.

UK Government position

In his statement responding to Paul Givan’s resignation, Brandon Lewis set out the Government’s assessment of the impact of the protocol. He said:

The Government recognises the impact that the Ireland/Northern Ireland Protocol is having on the ground, and we have been clear for some time that the protocol has been causing a serious unbalancing of the delicate and hard-won political stability in Northern Ireland. We remain fully committed to fixing the problems with the protocol and to protecting the Belfast (Good Friday) Agreement in all its dimensions.

The Government had previously set out its concerns about the impact of the protocol on the political situation in Northern Ireland when it published a command paper, ‘Northern Ireland Protocol: The Way Forward’, in July 2021:

There has also been political and community instability (with changes of first minister and the leadership of both main unionist parties), at a time when the challenges of Covid-19 are already acute. There were instances of disorder at Easter across Northern Ireland, with the protocol cited as one of the contributing factors. In May, the Police Service of Northern Ireland noted that of the 35 unlawful protests being investigated, 30 related to actions against the protocol. Early surveys of attitudes have reflected these concerns and unease, with two-thirds of respondents concerned about the effects of the protocol on Northern Ireland’s economy and on political stability in Northern Ireland. And the absence of buy-in to the existing arrangements from the unionist community leaves an ongoing tension within the power-sharing institutions, undermining the basis which the Belfast (Good Friday) Agreement established for those institutions to function effectively.

The Government argued that these effects, coupled with “significant disruption to longstanding trade flows between Great Britain and Northern Ireland” and other “societal and economic difficulties” such as higher costs for consumers and businesses meant that “it is clear that the situation would justify a package of appropriate safeguards under article 16”. Article 16 of the protocol states that if the application of the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade” then either side can unilaterally impose “appropriate safeguard measures”.

However, the Government said it had concluded “that for the time being it is not appropriate” to exercise the UK’s rights under article 16, because of the limitations imposed on the actions that can be taken under the safeguard mechanism. Article 16 states that safeguard measures “shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation”. The Government noted that any unilateral measures under article 16 would be temporary and “subject to the uncertainty of an as yet untested dispute settlement process”. However, the Government emphasised that “such action remains on the table as a possibility for the future if circumstances justify it”. Rather than resorting to article 16, the Government argued urgent talks were needed to “try to find a new balance for the protocol: one that fully respects Northern Ireland’s place in the UK market, while maintaining the integrity of the EU’s own market”.

The Government set out more detail on its proposals in section 5 of the command paper. For instance, on trade in goods, it proposed that it would be the responsibility of UK traders moving goods into Northern Ireland to declare whether their ultimate destination was Northern Ireland or Ireland. Only if the goods were going to Ireland would full EU customs procedures be required; for goods staying in Northern Ireland, there would be no customs processes. Similarly, the UK proposed that agrifood goods would only require full SPS checks, to be enforced by the UK, if they were destined for Ireland, although there would be full checks on all live animal movements, and special arrangements for plants and plant products to combat biosecurity risks.

Although the Government concluded in the command paper against implementing article 16, both the Prime Minister, Boris Johnson, and Liz Truss, the Foreign Secretary, have recently said they would implement article 16 if a negotiated solution could not be found.

Talks between the UK and the EU on the protocol

In response to the UK command paper, Maroš Šefčovič said in July 2021 the EU would continue to engage with the UK, but would “not agree to a renegotiation of the protocol”. Mr Šefčovič said the EU had sought “flexible, practical solutions” to overcome difficulties citizens in Northern Ireland were experiencing over the implementation of the protocol. The European Commission made public several non-papers (informal negotiating documents) setting out some of the solutions Mr Šefčovič had referred to. The non-papers contained the EU’s proposals for marketing authorisations for medicines in Northern Ireland and sanitary and phytosanitary measures (covering: the movement of guide dogs from Great Britain to Northern Ireland; the tagging of cattle, sheep and goats; exemptions from animal health requirements to make it easier for animals from Northern Ireland to be taken to agricultural shows in Great Britain; and allowing animal products to re-enter the EU single market after being stored in Great Britain). The European Commission also said the EU was pausing legal action it had started against the UK in March 2021 for alleged breaches of the protocol.

A UK government spokesperson described the EU’s proposals as “a welcome start”, but said they represented “only a small subset of the many difficulties caused by the way the protocol is operating”.

The European Commission published further proposals on ‘bespoke arrangements’ relating to the protocol in October 2021. It said these would enable “further flexibilities in the area of food, plant and animal health, customs, medicines and engagement with Northern Irish stakeholders”, including “approximately an 80% reduction” in SPS checks on retail goods moving from Great Britain for consumption in Northern Ireland. Lord Frost, who had ministerial responsibility for the protocol at the time, said in November 2021 that the EU’s proposals “would not do enough to make the protocol sustainable for the future or even deliver what they have claimed”.

As of late February 2022, talks between the UK and the EU over the protocol continue. Most recently, Maroš Šefčovič and Foreign Secretary Liz Truss met on 21 February 2022 to co-chair a meeting of the Joint Committee. A joint statement released after the meeting described their talks over recent months as “constructive”. The statement “underlined that the UK and EU share an overriding commitment to protect the Good Friday or Belfast Agreement of 10 April 1998 in all its dimensions” and said there was an “ongoing determination of both parties to ensure that the outstanding issues in the context of the protocol are addressed, and durable solutions found”.