Roderick Crawford: Finding a solution for Northern Ireland, not just doing a Protocol deal, is possible | Conservative Home

Roderick Crawford is a Senior Research Fellow at Policy Exchange. His latest paper, The Northern Ireland Protocol: The Clash of Two Treaties, was published by Policy Exchange in February 2023.

As the UK and the EU continue Northern Ireland Protocol negotiations, imagining a possible landing zone for a deal that works for London and Brussels remains easier than one that works for unionists in Northern Ireland.  What could push the EU to make the concessions unionism might accept?  A deal for European solidarity is more imaginable than a solution for Northern Ireland.

But the desire to create a wider landing zone, one that we might term a ‘solution’ rather than a ‘deal’, is strengthening.  I have set out the case for the conflict between the Belfast (Good Friday) Agreement before on this site, as its editor pointed out in a recent article.

In a recently published paper for Policy Exchange, The Northern Ireland Protocol: The Clash of Two Treaties, the full conflict between the EU’s requirements for a Ireland/Northern Ireland solution, and the performance of the Protocol that resulted, is set out.

It is now clear that the EU signed up to an “Irish interpretation” of the Belfast (Good Friday) Agreement.  Whilst the UK was effectively banned from discussing or explaining Brexit-related issues with the EU27 following the referendum, the Irish government launched its largest-ever diplomatic — and pedagogic — exercise. Able to portray itself as the Belfast Agreement’s guardian, it made its own interpretation into that of the EU’s.

The Belfast Agreement’s protection — but with EU negotiators emphasising its North-South dimension — consequently became fully integrated into the EU’s May 2017 negotiating directives — a legal document from the European Council representing the member states that set the Commission’s aims and red lines.

The paragraph that refers to Ireland/Northern Ireland sets out a key condition: “In line with the European Council guidelines, the Union is committed to continuing to support peace, stability and reconciliation on the island of Ireland. Nothing in the Agreement should undermine the objectives and commitments set out in the [Belfast] Agreement in all its parts and its related implementing agreements”.

The EU has two basic positions on the Protocol and the Belfast Agreement. One is that the Protocol supports the Belfast Agreement because it says it does in the Protocol’s preamble and in Article 1, where its objectives are set out. This is entirely self-referencing — there is no external evidence in support.

In its second position, as stated by Commission President Ursula von der Leyen before the Irish Parliament in December last year, it conflates the Agreement with avoiding a hard border: “And one thing is clear: Ireland can always count on the European Union to stand by the Belfast Agreement — there can be no hard border on the island of Ireland”.

This position represents a development of Ireland’s interpretation of the Belfast Agreement.  When it published its most detailed position paper on Brexit, in May 2017, avoiding a hard border was the Irish government’s primary objective.  It described an invisible border as “the most tangible gain of the peace process”.

This is nonsense. The most tangible gain was an end to decades of violent conflict, almost all of which was confined to Northern Ireland — about 99.5 per cent of all deaths associated with the conflict occurred there.

As negotiations developed in 2017 and the main EU-UK issues — primarily financial obligations and citizens’ rights — were addressed, Ireland sought guarantees on its own key objective. After all, an Irish border would undermine the Republic’s status in the single market. For an economy so dependent on foreign direct investment seeking access to the EU’s internal market this was a significant threat that needed to be fully addressed.

So, in the wake of the UK’s failure in October 2017 to get into phase 2 talks on the future relationship as scheduled, a new argument was put forward by the EU/Ireland in November 2017 that made the avoidance of a hard border a requirement of continued North-South cooperation: central to the Belfast Agreement.

This effectively made avoiding a hard border part of the Belfast Agreement settlement and thus required UK legal protection and guarantees.  It was a bold and successful diplomatic manoeuvre and led directly to the commitment to alignment in the December 2017 Joint Report.  There was no longer a withdrawal agreement that the UK could sign with the EU that did not centre on Northern Ireland’s alignment with much of the EU acquis.

Avoiding a hard border was not the Belfast Agreement’s objective, but one achieved by the Single Market’s completion in 1992. The Belfast Agreement’s objective was to end the violent conflict by creating a constitutional consensus on Northern Ireland’s governance based on a power-sharing devolved government and with Northern Ireland’s place in the UK determined by the consent of Northern Ireland’s people.  That had been the aim of a number of initiatives going back to the failed Sunningdale Agreement of 1973.

In altering Northern Ireland’s governance framework, the Protocol has collapsed the constitutional consensus. The Belfast Agreement’s central objective has been undermined; the EU’s central condition for the Withdrawal Agreement has been failed.

This collapse has caused Northern Ireland’s institutions to fail.  Ensuring that these could continue to operate effectively was an EU requirement for any solution. That puts the European Council, having set EU’s mandate, and the Commission, tasked with fulfilling it, in some difficulty.

It also undermines the Protocol itself. All the objectives set out in Article 1 (“Objectives”) are derived in whole or in part from the Belfast Agreement.  Of the eight objectives that can be identified there, only one is fully met — avoiding a hard border — and one largely met, albeit at the cost of the effective operation of its institutions. T

he others are, in part or whole, either not achieved or undermined by the Protocol.   Given that the Protocol was negotiated in good faith as a solution to protecting the Belfast Agreement “in all its dimensions”, that presents a real challenge for the EU.

The EU has still to come to terms with this problem.  A solution that addresses unionist concerns and wins back cross-community consensus for any new governance framework is the only way to achieve the aims of the Protocol that the EU and UK signed up for in the first place, as well as fulfilling the EU’s own negotiating directives and their Guiding Principles.

This does not make any outcome inevitable, but it makes the prospects of the EU making concessions that have the prospect of winning substantial unionist support far more likely than would otherwise be the case.