What is the Northern Ireland Protocol?

Following the EU’s decision to take further legal action against the UK, this article has been updated to reflect the most recent developments regarding the Northern Ireland Protocol.

The answer begins in 1921, when 26 of Ireland’s 32 counties gained independence from the UK.

Since then, the UK and the Republic of Ireland have pursued a degree of regulatory alignment to facilitate reasonably easy travel and trade between the Republic and the six counties that make up Northern Ireland. Although political pressures have often meant that this easy move has been theoretical rather than real, there has always been a degree of regulatory alignment on the island of Ireland and between Ireland and the UK as a result. .

In the 1950s, after the UK changed its immigration laws to restrict the rights of Commonwealth citizens to come to Britain, the Irish government followed suit to maintain the Common Travel Area (the Common Travel Area). movement agreement comprising the United Kingdom, the Republic of Ireland, the Isle of Man and the Channel Islands, in which citizens of the four places can move and live freely in the four territories without restriction). The UK’s reluctance to join the Schengen area, which facilitates passport-free travel to 26 European countries, means the Republic of Ireland is also staying out of it. And the two countries joined the European Economic Community (EEC) at the same time, always for this reason.

So this is the EU?

The common regulatory framework of EEC membership, particularly after the creation of the single market, the customs union and the modern European Union in the late 1980s and early 1990s, meant that these arrangements have largely ceased to be a bilateral matter between Ireland and the United Kingdom, and have become European: integration between Member States has facilitated the pre-existing alignment and integration between the island of Ireland and Great Britain. (The so-called east/west border.)

This regulatory alignment helped facilitate the political agreements reached in 1998 (the Good Friday Agreement) and throughout the decade, which largely ended the period of prolonged and widespread political violence in Northern Ireland and throughout the United Kingdom.

How has Brexit changed things?

After the UK voted to leave the EU in 2016, the future of this regulatory alignment was thrown up in the air. Ireland remains in the EU and is very likely to do so for the foreseeable future, but the UK is out of the EU and also unlikely to join in the foreseeable future.

EU and UK law are constantly evolving, meaning Brexit talks had to enshrine some kind of legal framework to keep Ireland’s and Ireland’s regulatory frameworks aligned North.

What was Theresa May’s backstop solution?

Theresa May’s preferred approach was an ‘all-British’ approach – the so-called backstop – which would have meant that the whole of the UK would continue to have the same regulatory framework as the EU when it comes to goods (meaning the tangible items sold to people, such as cars, computers, and contraceptives) and phytosanitary standards (the type of regulations that determine how to transport and handle plant, animal, and human beings – essentially: food, live animals and medicines).

The problem with May’s backstop, however, was that the EU didn’t like it because it took away so much of the single market, and Tory backbenchers didn’t like it because it implied a high level of rule-making for the UK after Brexit. It was rejected by the UK parliament and there is no chance of it being reinstated: Tory MPs won’t ask for it and the EU won’t offer it again.

What was Boris Johnson’s ‘Northern Ireland Protocol’ solution?

Boris Johnson has chosen to go a different route: the Northern Ireland Protocol, which only keeps Northern Ireland aligned on goods, phytosanitary standards and a handful of other areas.

Why did he do this? Well, there’s a political argument to be made that an ‘east/west’ regulatory boundary already exists between Northern Ireland and Great Britain when it comes to agriculture and energy, so a bit thickening of it is not a significant change. But there was also a political imperative. Johnson did not want to visit the country in the 2019 election as a candidate for a no-deal Brexit, and so he opted for the only other alternative: for Northern Ireland to remain in the regulatory orbit of the EU. EU and Britain leaving.

What happens now?

Today, unionist parties such as the Democratic Unionist Party (DUP) continue to oppose the Northern Ireland Protocol, primarily because it places an effective boundary across the Irish Sea. This they say undermines Northern Ireland as the region is treated differently to the rest of the UK. Meanwhile, critics of the protocol in Britain and Northern Ireland say disruptions to trade between the two regions mean changes are urgently needed.

In recent weeks, disagreements over the protocol have also created an obstacle to reaching a power-sharing deal in the Northern Ireland government. Earlier this year, the executive collapsed after Prime Minister Paul Givan resigned from the DUP in protest against the protocol. The party is now refusing to agree to a power-sharing deal with Sinn Féin, until changes are made to the protocol.

The UK government has now tabled a motion to overturn parts of the protocol, citing the need to resolve disagreements at Stormont. In response to the new bill, the EU again said it would not renegotiate the Withdrawal Agreement. On July 22, the EU launched new legal proceedings against the United Kingdom for non-implementation of the protocol.

Can this be solved?

Whatever changes have been made, the problem remains: that since 1921, relations between Ireland and Northern Ireland have involved a high degree of regulatory alignment. During the UK’s period of EU membership, this was facilitated by a common set of European standards. Before the two states joined the European Union, the UK – the largest state – essentially set the terms for alignment.

Brexit means that Ireland is now part of the larger bloc, and British politics has yet to adjust to this new relationship.

[See also: The EU’s concessions on the Northern Ireland protocol come at a cost]