In its haste to reach an agreement with the EU in order to be able to claim that Brexit had been done and then hold a general election which it needed to achieve a working majority, the Conservative government under Boris Johnston struck a deal which has damaged the union of Great Britain and Northern Ireland, perpetuated the Brexit divisions within its own party and caused the collapse of the Good Friday Agreement (GFA) and the institutions which it set up.
The running sore of the Northern Ireland Protocol (NIP) needs to be addressed and it seems that even the EU and the Irish Government which acted as the EU mouthpiece in the post-Brexit years have come to recognise that changes are needed.
Recent weeks have seen a change in language and a stepping up of negotiations. However, there is no evidence that the discussions are centring on the issue which needs to be addressed.
Brexit was all about taking back sovereignty i.e. the ability to govern ourselves yet the NI Protocol handed control of Northern Ireland and many UK government decisions in relation to NI over to the EU and the ECJ.
Evidence of this has been given once again this week with the introduction of Official Controls (Northern Ireland) Regulations, 2023 which gives powers to UK government Ministers to implement and supplement the operation of the protocol.
The particular powers, in this case, are being taken to build border posts in NI required under the NIP in order to carry out checks on goods entering EU territory from a third country namely GB.
In effect, an international border has now been created within the UK and has to be built by the UK government in order to comply with EU requirements under the protocol. The power is now being taken by UK ministers because DUP Ministers in the NI Assembly refused to build them and the EU has complained so UK ministers are now taking the power to comply. So much for sovereignty being taken back.
Most of the public debate has centred around these checks which are currently taking place in temporary accommodation and at a reduced level, the effect they have had on GB/NI trade and the impact on supplies of goods to businesses and consumers. However, to dwell on these trade effects is to miss the point. The main objection that Unionists have to the protocol is the impact it has on the union and NI’s place within it.
Despite the UK having left the EU, NI still remains in the EU single market. This means that EU laws, not UK laws apply in NI. This includes current and all future EU laws. So at a time when the UK government is debating which EU laws to retain and which to dispense with or change many of these decisions cannot apply to NI.
The UK has surrendered its power to apply its own laws to part of its own country. Furthermore, the public representatives in NI have no say over future EU laws which will automatically apply to our country even if they have a detrimental effect. So not only has sovereignty been conceded, democracy has been abandoned.
If NI officials do not apply those laws then a foreign court (the ECJ) will impose sanctions on the UK. This abdication of sovereignty also impacts UK government decisions at Westminster. We have already seen the pathetic spectacle of the chancellor not being able to introduce VAT changes for the whole of the UK because they could not apply to NI or introduce reductions in VAT which he had to accept he could not apply to the whole of the country.
The NIP has driven a wedge into the structure of the Union and as the UK government uses its Brexit freedoms to change laws while simultaneously abandoning NI to the clutches of Brussels, the divide in the Union will widen.
For those who are sceptical about this analysis, they need only listen to the evidence given by the government’s own law officers in the High Court case taken by unionists challenging the legality of the NIP because it broke Article 6 of the Act of Union, 1701 which stated that there could be no interruption of trade within the Union.
The government case was that the NIP was not illegal because when passing the EU Withdrawal Act which contained the protocol provisions the House of Commons had “impliedly repealed” that provision of the Act of Union.
As UK and EU law drifts apart so will NI drift politically and constitutionally further from the country to which we belong. At the same time, NI is being driven away from the UK economically because the checks required by the protocol and the application of EU regulations make it more difficult for GB firms to trade in NI and force NI businesses to re-orientate their supply chains to the EU.
The negotiations must be to address this central issue of NI being subject to EU law. Remove that and the need for interference by the ECJ is removed and the need for checking goods coming into NI for consumption there is also removed.
What about the small amount of goods coming through NI to the Republic of Ireland or being made in NI and going into the RoI? They represent about 0.4% of total EU international trade or 5% of NI output. How do we deal with them and ensure the protection of the EU single market?
An agreement with the EU where the UK and the EU adopted a regime of mutual enforcement of each other's standards, taxes and regulations would deal with this problem. Firms would have to commit to honouring EU single market requirements when exporting goods. Any identified breach of that commitment would lead to prosecutions being taken by UK officials, sanctions would be severe to create a deterrent and offenders would be subject to even greater checks in future.
This is one alternative to the NIP. It safeguards the UK internal market and the integrity of the union but it requires the political will to adopt it. This is the kind of radical change required from the negotiations.
Only a solution of this nature can lead to the restoration of the NI Assembly. The Assembly requires cross-community support to work. That is written into the GFA. At present, there is no unionist support for the NI protocol and it is unrealistic to expect unionist ministers to go into the assembly and implement the protocol while claiming that it destroys the very union they value and the economic well-being of the people they represent.
That is why I and my Unionist colleagues backed by the Unionist electorate cannot re-enter the NI Assembly until the offence of the NI protocol is removed.
Twenty-five years after the signing of the Belfast Agreement, the challenge for the UK government and the EU is whether they are prepared to change the arrangements which have put the continued operation of the GFA in jeopardy.