05 May 2021

London 4 Europe: The Irish Brexit – conundrum and trilemma

The UK and Ireland both being members of the EU was a crucial factor in the path towards peace in Northern Ireland, argues Denis Loretto, a founder member and former Chair of the Alliance Party of Northern Ireland.

The Northern Irish Protocol cannot simply be removed because of a trilemma - the absence of a hard border in Ireland, no customs border in the Irish Sea and no British participation in the EU Single Market and Customs Union - cannot all exist together.  

The 1998 Good Friday Agreement (GFA) ended the 30 year conflict, which resulted in over 3000 deaths. It guarantees that Northern Ireland will remain in the UK unless and until its people by majority decide otherwise.  For Irish nationalists, the quid pro quo is absolute equality for all in the North and the maximum degree of all-island co-operation achievable without breaching that constitutional guarantee. A completely open border is an essential feature.

“Partners in the European Union”

European Union (EU) membership of both the UK and Ireland underpinned the free passage of goods and people. While the GFA does not contain a clause mandating EU membership, this was regarded as a ‘given’ by all signatories. Indeed, the section of the GFA entitled ‘Agreement between the Government of the UK and the Government of Ireland’ speaks of “close co-operation between [the] countries as friendly neighbours and as partners in the European Union”. Despite this and the evidence of 17 years of peace in Ireland, David Cameron promised the UK electorate the opportunity to decide unilaterally whether the UK should continue its EU membership. This was included in the 2015 Conservative Party manifesto, leading to the referendum and the decision to leave in 2016.

Although largely ignored in the 2016 referendum campaign, it has become ever clearer that the leave decision has imperilled the delicate and hard-won structure of the GFA. The situation is exacerbated by the fact that Northern Ireland returned a clear majority for ‘remain’.

Polls show that antipathy to further political integration and concerns about immigration were the main drivers of the Leave vote. Few were motivated by determination to destroy the frictionless trade provided by the Customs Union and the Single Market championed by Margaret Thatcher.

Right wing capitulation

However, Theresa May, who had herself voted for Remain, capitulated to the Tory right wing and declared her intention to leave these institutions. She seemed oblivious to the incompatibility of this hard form of Brexit with the soft border in Ireland, which all parties claimed to guarantee in all circumstances.  Attempting to strengthen her hand, May called a general election in June 2017 which eradicated her overall majority and made her dependent upon the europhobe Democratic Unionist Party (DUP) to sustain her in office.

Peace before trade

As negotiations on trade and co-operative arrangements commenced, the EU27 understood the threat to Irish peace and insisted upon finding agreement on that and several other matters before trade talks could begin. They realised that measures on Ireland must be put in place which would survive even if the overall negotiations resulted in ‘No Deal’ and reversion to World Trade Organisation (WTO) terms.

The EU27 first put forward a separate Customs Union status for Northern Ireland, but in view of strong protest, particularly from the DUP, agreed to broaden this to the whole of the UK. The draft UK-EU Withdrawal Agreement provided for a transition phase until the end of 2020.  After this, the UK and EU customs territories would operate as one until the parties agreed jointly that a satisfactory alternative arrangement had been reached to maintain a completely open border in Ireland. In addition, Northern Ireland would maintain ‘regulatory alignment’ with the EU Single Market, again until a satisfactory alternative arrangement could be put in place for Single Market regulations as well as Customs and Excise. This became known as ’The Backstop’ and was welcomed in Northern Ireland by trade and industrial bodies and by all political parties, other than the DUP and Ulster Unionist Party.

The Withdrawal Agreement, coupled with a political declaration setting out aspirations for future EU-UK co-operation, was twice voted down by the House of Commons. There were fears that the Backstop might become permanent, despite the EU making it clear that their own interests lay in the Backstop being temporary.

Johnson takes over

As the intended Brexit day on 29 March 2019 approached, the House of Commons forced a series of indicative votes on the way forward. None gained a majority. Despite agreement with the EU for Brexit to be delayed until 12 April 2019, no Parliamentary consensus could be achieved. This led first to an agreement to extend the Article 50 deadline to 31 October 2019 and then the resignation of Theresa May with Boris Johnson emerging as her successor.

Johnson first sought to remove the Irish Backstop. When this was rejected by the EU, further negotiations, including direct talks between Johnson and Irish Taoiseach Leo Varadkar, resulted in agreement to a ‘protocol’ remarkably close to the plan initially put to Theresa May. The whole of the UK would leave the EU Customs Union, but with Northern Ireland adopting EU Single Market regulations on goods. The agreement also guarantees no border regulations whatsoever between the two parts of Ireland and protects the settlement contained in the GFA. This was agreed in October 2019. A further final extension of the Article 50 deadline to 31 January 2020 was also agreed. Johnson called and decisively won a general election on 12 December 2019 and the EU Withdrawal Act including the Northern Ireland Protocol was passed by Parliament in January 2020.

The remainder of the Brexit negotiations, leading to a limited free trade agreement and other forms of cooperation, was completed on Christmas Eve 2020. leading to the UK exit from the EU upon the expiry of the transition period on 31 January 2021.

Best of both worlds?

Arguably, Northern Ireland could get ‘the best of both worlds’ by remaining part of the UK market while having better access and alignment with the EU market than any other part of the UK. However, the price is a degree of regulation and checking of goods between Great Britain and Northern Ireland. This infuriated the DUP and other Unionist parties and is considered to be a factor in outbursts of civil unrest in Belfast. The previous false assurance by Boris Johnson that there would be no checks or documentation affecting trade across the Irish Sea has exacerbated the situation.

Brexit is a long-term process, not a clearly defined destination, and the Irish conundrum features high in ongoing UK-EU talks. The Northern Irish Protocol cannot simply be removed because of a trilemma - the absence of a hard border in Ireland, no customs border in the Irish Sea and no British participation in the EU Single Market and Customs Union - cannot all exist together.  

So how to improve the situation? Recognising that sanitary and phytosanitary (SPS) issues are the main problem, the NI Alliance Party and others have proposed a veterinary agreement. This would also address similar problems affecting trade in food and agricultural products between Great Britain and the EU27. But it would require a move away by the Johnson government from their total rejection of any alignment of trading standards between the UK and EU.

Recent resignation

The recent resignation of Arlene Foster as DUP Leader and Northern Ireland First Minister increases the urgency of remedial action. A hardline replacement - insisting upon nothing less than complete withdrawal of the Protocol - would threaten the survival of the entire power-sharing settlement.  

Denis Loretto is a founder member and former Chair of the Alliance Party of Northern Ireland. He was a Belfast City Councillor from 1977 to 1981 and is now an active Liberal Democrat in London. 

London4Europe blogs are edited by Nick Hopkinson, Vice-Chair. Articles on this page reflect the views of the author and not necessarily of London4Europe.

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