Teething Pains Over the Northern Ireland Protocol’s Implementation

Published on 4 March 2021 at 11:16

Anger has grown among unionists in Northern Ireland over the UK’s exit from the European Union and the withdrawal agreement which came into effect this year. More specifically, concerns have grown over the Northern Ireland Protocol and its effects on trade between Northern Ireland and Great Britain. There have been reports of food shortages and disruption, and inspectors in Northern Irish ports have been subject to intimidation and threats of violence from loyalists who are fiercely opposed to the changes.


After the shock result of the Brexit referendum in June 2016, concerns were immediately raised over the potential for a “hard border” to arise in Ireland once again. Prime Minister Theresa May, and later Boris Johnson, sought a hard form of Brexit which would involve a greater level of regulatory divergence from the EU and the ability to reach international trade agreements independent of the EU. Simultaneously, they sought to avoid the need for customs checks and border infrastructure in Ireland as this was strongly opposed by Irish diplomats and wider Irish society on both sides of the border.


The Northern Ireland Protocol was a compromise reached between the UK and the EU which would take effect in January 2021, regardless of whether a withdrawal agreement was reached. In essence, the Protocol stipulates that rules and regulations on goods and services in Northern Ireland would remain in alignment with those of the EU. This would simultaneously avoid a hard border in Ireland and mandate customs checks on certain goods (including milk, meat, fish and eggs) flowing between Northern Ireland and Great Britain.


While broadly welcomed by Irish lawmakers and EU negotiators, the implementation of the Protocol has angered many unionists. The DUP’s Arlene Foster has called on Boris Johnson’s government to “act unilaterally” against the Protocol and several prominent unionists are planning to take legal action against its implementation with the DUP’s backing, including former UUP leader David Trimble, former Labour MP Kate Hoey and former Brexit Party MEP Ben Habib.


The most dramatic development occurred last week when DUP minister Gordon Lyons halted construction of permanent inspection facilities in Northern Irish ports, citing concerns that the  Protocol was in breach of UK domestic law, specifically the Internal Market Act. This was met with immediate condemnation by Sinn Féin’s Michele O’Neill, who branded the move a “stunt”, and by SDLP MLA Matthew O'Toole, who said that Mr Lyons' decision was "reckless, pointless and wrong but … also on unsafe legal ground".


Following this debacle, RTE’s Tony Connelly reported that the UK has reassured the European Commission that the implementation of the Northern Ireland Protocol was not impacted by Lyons’ decision to halt the construction of permanent inspection facilities. However, the European Commission spokesperson Daniel Ferrie also remarked that the UK is obliged to complete construction of the facilities by mid-2021 as part of the Protocol and the Withdrawal Agreement reached in December 2020.


According to the Northern Ireland Attorney General Brenda King, Lyons’ decision breached ministerial code as he failed to consult the Northern Ireland Executive in “policy that is deemed cross-cutting and controversial” before making such a decision. Lyons has rejected this opinion and Arlene Foster has defended his decision, arguing that “Gordon has taken the decision based on evidence and law that he has looked at and the decision still stands until it is overturned by a court”.


This has added to the already-uncertain conditions facing businesses in Northern Ireland who have pointed out concerns including “a lack of information for traders and poor preparedness, especially among companies in Britain exporting goods to Northern Ireland” as reported by Tony Connelly.


It is unlikely that the permanent inspection facilities will be ready by mid-2021. Denis McMahon, permanent secretary of the Northern Ireland  Department of Agriculture, has told the Assembly that “even without the current issues [related to Gordon Lyons’ halt to construction] the permanent facilities would not be completed before the end of March 2022."


The DUP’s decision to halt the construction of permanent inspection facilities and the ongoing legal case against the Northern Ireland Protocol sets the stage for a further showdown between unionists and the British government over the implementation of the Protocol. While Boris Johnson has committed to following the terms of the Withdrawal Agreement, he has already unilaterally extended the grace period for agri-food imports into Northern Ireland until October 2021. This second breach of international law has earned the ire of Foreign Minister Simon Coveney, who said this morning that “The EU are negotiating with a partner they simply can't trust”.


The European Commission, who was not warned in advance of this decision, is said to be weighing its options in response to this latest breach by the British government. The Commission may begin an infringement procedure (similar to the action taken in response to the Internal Market Bill), or it may also use the arbitration mechanism available under the terms of the Withdrawal Agreement. In any case, this is an escalation of tension between the UK and the EU, and a showdown is likely to occur in the next weeks and months.

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