In Depth: The Future of the United Kingdom and the Northern Ireland Protocol

As the situation surrounding Northern Ireland deepens in its complexity and MPs debate the issue in parliament, Dan Boucher examines the diplomatic standoff and what the future looks like for Northern Ireland and the union.

It is clear that some MPs voted for the Revised Withdrawal Agreement in the expectation that the Northern Ireland Protocol would only be a temporary arrangement. Notwithstanding the huge disruption it has caused, however, the only kind of change we have seen as this year has unfolded is one that serves to ultimately entrench rather than qualify the reality of the Protocol. Specifically, the extension of grace periods (which means we have not yet seen the full disruption that the Protocol will bring) remind us that at some point the grace periods will end. The EU and the Republic of Ireland seem to regard their willingness to countenance these extensions as expressions of selfless generosity which should be met with full and willing submission to the Protocol once those extensions have concluded. For anyone raised in the Conservative and Unionist tradition, however, this must seem highly unlikely.

In seeking to understand the significance of the Protocol it is important to assess what it says in the context of an appreciation of what people who voted 'leave' were voting for. Despite the attempts of some to caricature Brexiteers as an unenlightened group of people, fixated with the desire to stop immigration, polling clearly reveals that the single biggest motivation of those who voted for Brexit was the restoration of UK sovereignty. People sought the dignity that comes from being able to elect and remove those making the laws to which they are subject, recognising that our relationship with the EU was such that we no longer had the ability to remove all our legislators because so many of them were elected by the electorates of other countries where the people of the United Kingdom had no vote.

In this context the fostering of a new sovereignty affirming politics, requires respect for the two central aspects of sovereignty: first, the fact that sovereignty is territorial such that it is not possible to foster a more sovereignty affirming environment without respecting the territorial integrity of the sovereign state in question. Second, the need to ensure that all government decision making pertaining to the territory in question, in our case the United Kingdom, is taken by representatives elected by the people of the United Kingdom (who can also remove those representatives) be that the UK electorate on a UK matter, or a devolved electorate, on a devolved matter.

Bearing these two points in mind the really striking thing about the Protocol is that rather than delivering a form of politics that demonstrates greater respect for the sovereignty of the United Kingdom, the Protocol, undermines the sovereignty of the United Kingdom in a way that was never seen when we were an EU member state.

In the first instance, the EU and the Republic of Ireland are using the Protocol to disrespect the territorial integrity of the United Kingdom, something they both respected when we were in the European Union. The Protocol states that, unlike Great Britain, Northern Ireland is part of the same single market as the Republic of Ireland and the wider European Union. Goods sent from Great Britain to Northern Ireland now require a customs declaration as if, rather than trading with another part of the United Kingdom, an English company trading with a Northern Ireland company is trading with a company located in a foreign jurisdiction. Politically this is not only hugely disturbing for the unionist community in Northern Ireland. It is also very disconcerting for anyone living in England, Wales or Scotland who believes in the union and or voted for Brexit in order that the sovereignty of the United Kingdom would be better respected.

In the second instance, this arrangement undermines UK sovereignty because rather than putting UK citizens in Northern Ireland in more control over their governance, it actually gives them less control than they had when we were in the EU. As part of the EU, UK citizens in Northern Ireland could shape single market decisions through their elected representatives within EU governance structures. To be sure, the resulting decisions would be made by many legislators, most of whom UK citizens in Northern did not elect, and could not remove, but at least they had some kind of a voice in the process. Now 'laws governing 60 per cent of economic activity in Northern Ireland' are to be made by people from another jurisdiction in which neither Northern Ireland, nor the wider UK has any elected representation.

In truth there is a sense in which, as one commentator has observed, the Protocol effectively delivers the economic annexation of Northern Ireland by the Republic of Ireland and the European Union for some economic purposes. This is not to say, however, that the Protocol terminates the United Kingdom any more than did our membership of the European Union remove all aspects of UK sovereignty. While the recent High Court Judgement suggests that Article 6 of the Act of Union has been 'impliedly repealed', all the other provisions within the Act of Union remain in place.

What the Protocol unquestionably does do, however, is to confer on Northern Ireland a more qualified connection with the union than that which applies to any other constituent part of the union. Moreover, given that there is usually a primary constitutional connection between the operative single market pertaining to a jurisdiction and the polity in which it is located, it is less than clear that the current arrangement is sustainable in the longer term. This is not surprisingly causing huge distress amongst the unionist community in Northern Ireland.

Mindful of the above, it is really troubling that the EU has been very deliberate in developing a strategy to maximise its influence over the UK by using the border with the Republic of Ireland. Specifically, it has sought to deploy the Good Friday Agreement to construct a highly creative argument against respecting the territorial integrity of the United Kingdom that was never the intention of the framers of the said agreement. The Good Friday Agreement says nothing about having no customs border checks, its focus is specifically concerned with demilitarisation and the removal of military infrastructure on the border. Indeed, one of the main implications of the Good Friday Agreement was not to minimise the importance of the border but to recognise it, as the Republic relinquished its territorial claims to the North and it was agreed that the border could only ever be done away with if both the people of Northern Ireland and the Republic of Ireland vote for unification, something that has not happened. In the absence of a vote for unification, the territorial integrity of the United Kingdom must be respected through the application of the light touch border merited by the limited levels of trade between Northern Ireland and the Republic, which could be further strengthened through the provision of 'mutual enforcement' which does not require any physical customs infrastructure.

Rather than respecting the spirit of the Good Friday Agreement (carefully fashioned out of regard for an even-handed concern for both communities) by demonstrating an even handed approach to both communities, the EU has, in adopting its strained and imaginative reading of the Agreement, actually allowed itself to be requisitioned for the local political purposes of one side of a centuries old conflict.

Far from being informed by a cautious respect for Northern Ireland's troubled and complex history, the EU has blundered in, where angels would fear to tread, in order to achieve its purposes, without regard for the way in which their intervention will inevitably upset a delicate political balance with consequences that will injure its political reputation as an honest broker. In acting, firstly, as if the Good Friday Agreement negates rather than affirms the border and, secondly, as if the option of 'mutual enforcement' did not exist, the conduct of the EU is vulnerable to being construed as transparently allowing itself to be commandeered for the purpose of helping Sinn Fein to accomplish its political objectives. This is unwise.

Having said that, however, as one confronts the way in which the Protocol places our United Kingdom on a more qualified foundation than has existed for the last two hundred and twenty years, and reflects on its implications for the core relationship of trust on which our union depends for its survival, one has to acknowledge how this unfortunate outcome aligns with the EU's widely recognised objective of punishing the UK for leaving the EU. It would clearly suit their purposes very well in seeking to prevent other countries leaving the EU if they could say, 'Remember what happened to the country that left the EU, the UK of Great Britain and Northern Ireland – well it no longer exists.'

The truth is that if the United Kingdom is to be sustained, the Protocol – certainly in its current form – cannot remain in place. There is no credible reason arising from the Good Friday Agreement for the EU not to recognise the reality of the border between Northern Ireland and the Republic Ireland and every reason for it to do so, because anything else would amount to asking the UK Government to fail in one of the most primary responsibilities of any sovereign state, namely defending its territorial and constitutional integrity. No self-respecting country can submit to this indignity and the thought on the part of the EU that it is a reasonable expectation that we should is extraordinary.

The Prime Minister made this plain in his uncompromising response to a question from Sir Jeffrey Donaldson at PMQs on 16 June 2021:

Sir Jeffrey M. Donaldson (DUP – Lagan Valley)

I know that, like me, the Prime Minister cares passionately about the Union. Can he confirm that the passing of the European Union (Withdrawal) Act 2018 and the Northern Ireland protocol that forms part of it, has not resulted in an implied repeal of article 6 of the Act of Union, which enables Northern Ireland to trade freely with the rest of this United Kingdom? Will he commit fully to restoring Northern Ireland's place within the UK internal market?

The Prime Minister

Yes, of course. I can give assurances on both counts. I can say that unless we see progress on the implementation of the protocol, which I think is currently totally disproportionate, then we will have to take the necessary steps to do exactly what the right hon. Gentleman says.'

If the final determination of the court is 'implied repeal' of Article 6 then it will be necessary for our sovereign Parliament to introduce new legislation restoring the said article which would then, as the more recent constitutional statute, imply the repeal of anything to the contrary of Article 6 in the European Union (Withdrawal) Act 2018 and the Northern Ireland protocol.

Of course, none of this is to say that if the people of Northern Ireland voted to leave the United Kingdom of their own free will, their departure should be resisted as a violation of sovereignty. Rather than violating sovereignty, such a vote would constitute a manifestation of Northern Ireland's self-determination. While it would be the occasion of great sadness to me, it would not violate UK sovereignty in any way. The territorial boundaries of the UK would just change. Crucially, however, the people of Northern Ireland have not voted to leave the United Kingdom and, if the United Kingdom is to survive at any level, it is vital that the union centre is always seen to manifest uniform commitment to all parts of the union. International pressure that expects the UK government to conform to such a strategy must understand that no UK Government can acquiesce with the termination of the United Kingdom any more than it can acquiesce with the termination of itself.