The UK government has announced proposals to renege on an agreement it forged less than a year ago with the European Union. Under the Withdrawal Agreement agreed by the UK Parliament and the EU in 2019, Northern Ireland was due to follow some EU customs rules from January 2021, which is the end of the Brexit transition period. This section of the Withdrawal Agreement is known as the “Northern Ireland Protocol.”
But the UK government has in the last few days proposed enacting a new piece of legislation that would alter these terms of exit from the European Union and would affect goods passing between Great Britain (that’s England, Scotland and Wales) and Northern Ireland. The proposed law would allow UK ministers to decide unilaterally which particular goods, having entered Northern Ireland from other parts of the UK, were “at risk” of entering the EU, making them subject to EU tariffs. It would also grant UK government ministers the power to scrap export declarations on goods moving from Northern Ireland to other parts of the UK.
Understood. But Why Does This Matter?
The proposed changes to the Northern Ireland Protocol present a number of potential problems. Firstly, it may risk peace in Northern Ireland. Citizens of Northern Ireland have been fiercely divided over many centuries over whether they believe Northern Ireland should remain a part of the United Kingdom, or whether they wish to be a part of the Republic of Ireland and separate from the UK. After decades of intense and violent conflict, often referred to as “The Troubles”, the Good Friday Agreement brought peace to Northern Ireland in 1998. The agreement entitled citizens born in Northern Ireland to claim either British or Irish citizenship according to their preference, and created a soft border between Northern Ireland and the Republic of Ireland, meaning people and goods could pass between them without customs checks. To many people in Northern Ireland, this arrangement is symbolic of being united with the Republic of Ireland while also remaining a part of the UK.
The UK’s vote to leave the European Union in 2016 has inevitably thrown that landmark agreement into question. To maintain a soft border between Northern Ireland and the Republic of Ireland demands that Northern Ireland, which is part of the UK, adheres to EU customs standards, as this allows for the free passage of goods between the two Irish territories. This naturally is problematic for those who wished for the whole of the UK to leave the European Union so that it could determine its own customs standards: to maintain a soft border between the UK and the Irish republic means that a part of the UK would have to adhere to EU safety and customs standards without the UK having any say in their creation at the European Parliament.
A compromise that aimed to ensure peace is maintained in Northern Ireland while granting the rest of the UK independence from EU customs standards was found in the form of the Northern Ireland Protocol, which formed part of the Withdrawal Agreement forged between the EU and the UK. The Protocol is due to be implemented in January after the Brexit transition period ends. It stipulates that Northern Ireland will continue to follow some EU customs rules, effectively placing a quasi-customs border between Northern Ireland and the rest of the UK (instead of between the Republic of Ireland and Northern Ireland). Some Northern Ireland citizens disapprove of such a border, viewing it as undermining Northern Ireland’s status as part of a unified UK. However, the agreement more broadly is viewed as a compromise that should ensure peace while allowing the EU and the UK to operate as separate customs bodies.
This week, the UK government proposed passing a separate piece of legislation, named The UK Internal Market Bill, which would alter some of the Northern Ireland Protocol. The UK government insists that the bill only “removes ambiguity” from the Withdrawal Agreement. However, Brandon Lewis, Secretary of State for Northern Ireland, has admitted that reneging on the Northern Ireland Protocol in effect breaks international law “in a limited and specific way.” He told the House of Commons earlier this week that “there are clear precedents for the UK and other countries needing to consider their international obligations as circumstances change”. Speaking to the BBC, Professor of Law at the University of Cambridge, Catherine Barnard, suggested that this statement could indicate the UK government is looking at Article 62 of the Vienna Convention on the Law of Treaties, which enables states to quit its treaty obligations when circumstances change radically. What circumstances are deemed to have changed is unclear.
In short, the proposed new legislation risks souring UK relations with the EU, which had agreed the protocol a year ago. It also raises concerns about continued peace in Northern Ireland. Boris Johnson has risked angering his backbench Conservative MPs, too, as they stood for election in 2019 on the promise of supporting the original Withdrawal Agreement – and some voters will perceive this U-turn as going against the Conservatives’ electoral mandate from the last general election. Johnson addressed Conservative MPs on Friday night on an urgent Zoom call, in an attempt to quash any rebellion. That the UK government has also demonstrated it feels capable and happy to break international agreements may also set a worrying precedent.
So What Has Been The International Response?
The EU has not taken these events lightly. Under normal circumstances, legislation affecting more than one country or trading bloc is announced jointly. In the last few days, the UK’s unilateral announcements have sent a message to the EU that the UK is attempting to create post-Brexit trade arrangements with the EU without the involvement of the European bloc. The UK likely can’t afford to sour its relations with the EU, as it is currently aiming to negotiate a full trade agreement with it.
If the UK does not agree a trade deal with the EU by 15th October, then the UK will trade with the EU on international trading terms from January 2021. This is likely to damage the UK economy and cause considerable disruption to both parties. Eric Mamer, the chief spokesman of the European Commission, announced he would travel to the UK on Thursday 10th September to conduct an urgent meeting aiming to clarify the UK’s plans. On Friday 11th, the EU warned that the UK could face legal action if it does not scrap the controversial sections of the Internal Market Bill by the end of September.
The European Commission’s President, Ursula von der Leyen, has tweeted that the Northern Ireland Protocol previously agreed by both parties is “essential to protect peace and stability on the island and integrity of the single market”. The UK government’s actions may prove problematic for its relationship with the EU in the future. Jess Sargeant, at the Institute for Government think tank, stated earlier this week that if it “looks like the UK is not applying EU law to the EU’s satisfaction, it could impose a fine on the UK or take it to the European Court of Justice.”
The UK government’s actions likely also send a bad message internationally, as they reveal an administration willing to violate agreements it has made with other countries and trading blocs. The UK has previously been renowned for its commitment to the rule of law. However, the government’s actions severely undermine that image.
The Northern Irish leadership has not responded positively to the recently announced proposal. Northern Ireland’s Deputy First Minister Michelle O’Neill tweeted that any threat of backtracking on the Northern Ireland Protocol would be a “treacherous betrayal which would inflict irreversible harm on the all-Ireland economy and the Good Friday Agreement”. She co-signed a joint letter from anti-Brexit parties in Northern Ireland to the UK Prime Minister and the EU’s chief negotiator, Michel Barnier, saying it would be “entirely unacceptable [to] abandon these safeguards and mitigations”.”
The UK government’s actions may also undermine future trade talks with the US, particularly if Joe Biden wins the presidential election in November. Irish Americans constitute a powerful voting bloc in the United States, and any action undermining peace in Northern Ireland will be perceived negatively by these voters – and, in turn, the US’s political leadership. The Guardian has reported that people “close to Biden” have warned that any action putting the 1998 Good Friday Agreement at risk “would present a major impediment to a close relationship between London and Washington in the event of a Biden presidency.”