Confronting the UK’s constitutional crisis — Part III: Northern Ireland and the problematic protocol
This is the third in a series of articles which explores the approaching constitutional crises confronting the United Kingdom. You can read the first and second articles, which deal with Scottish and Welsh independence, here and here.
During a visit to Belfast in August 2020, Boris Johnson said he would allow a post-Brexit border down the Irish Sea “over my dead body”. Yet just four months later a new trade border between Northern Ireland and the rest of the United Kingdom came into existence and, at the time of writing, Boris is very much alive. Last week Arlene Foster announced her resignation as First Minister of Northern Ireland and leader of the Democratic Unionist Party and the constitutional future of the six counties looks increasingly fraught.
Mr. Johnson’s rhetoric is made all the more inappropriate given Northern Ireland’s violent past. Britain’s deadliest battlefield of the last half-century was not in the Middle East, the Balkans or the Falklands Islands. It was on home soil. One thousand British soldiers and police officers were killed in Northern Ireland during the Troubles, twice as many as those who fell in Iraq and Afghanistan. A further two thousand civilians were killed.
Peace in Northern Ireland was hard-won. The Good Friday Agreement, agreed in 1998, helped usher in a period of relative harmony by committing all sides to disarmament and to the spirit of power-sharing at the newly created Northern Ireland Assembly. As Britain and Ireland softened their claim to the province, Tony Blair rejoiced that “the burden of history can at last be lifted from our shoulders” and he would later regard the peace process as one of his greatest achievements as Prime Minister.
But beneath the bandages applied by the Good Friday Agreement, old wounds lie unhealed. Debate over Northern Ireland’s constitutional future is raging with a new intensity and this month saw violence return to the streets of Belfast. The unrest threatens to undermine the fragile peace between the largely Protestant unionist community who wish to remain part of the United Kingdom, and the mainly Catholic Irish nationalists who want Northern Ireland to be part of the Republic of Ireland.
The causes of the rioting are numerous and complex, but the backdrop for this renewed intensity is the Northern Ireland Protocol; an important component of the Withdrawal Agreement negotiated between the UK and the EU. According to the Preamble, the Protocol’s aim is to guarantee the avoidance of “a hard border, including any physical infrastructure or related checks and controls” at the frontier between the Republic of Ireland and Northern Ireland.
The Protocol also states that it “protects the 1998 Agreement in all its dimensions”. Yet only last week the Protocol was described as a “brutal deviation” from the Good Friday Agreement by the Republic of Ireland’s former Permanent Representative to the European Union.
In order to avoid a hard border on the island of Ireland, the UK agreed that Northern Ireland would remain largely within the orbit of the EU. This has angered unionists because Northern Ireland is now treated differently from the rest of the UK in terms of trade.
In effect the Protocol keeps Northern Ireland in the EU’s single market for goods and in the customs union, meaning that Northern Ireland still has to follow many EU rules that the rest of the UK does not. Goods coming into Northern Ireland from elsewhere in the UK are now treated as coming from a foreign country and the consequent red tape has led many British companies to stop selling to Northern Ireland. Rather than a border being erected on the island of Ireland, there is now a border down the Irish Sea.
Opinion in Northern Ireland is divided. Supporters of the Protocol say that this is the only alternative to erecting a border on the island and that it will give Northern Irish firms unique access to both British and European markets, attracting inward investment into a region whose economy has long suffered from underinvestment. Whereas many unionists see the Protocol as an obstruction to the territorial integrity of the UK and an affront to their British identity.
There is also the view that the Protocol rips up the Good Friday Agreement by removing the principle of cross-community consent. The Good Friday Agreement was sensitive to the need for intra-community cooperation and contained special voting mechanisms to ensure equal representation for both unionist and nationalist communities.
Under the terms of the Withdrawal Agreement, Northern Ireland will be periodically asked to consent to the trading arrangements in the Protocol for as long as they are in place. It would grant Northern Ireland an opportunity to vote on whether to remain in the arrangements or choose to exit from them. The first consent vote is due to take place in December 2024.
The controversy lies in the fact that consent can be given by a simple majority of the Northern Ireland Members of the Legislative Assembly, which will have the effect of extending the Protocol by four years. In the scenario that nationalist parties hold a majority in the Northern Ireland Assembly, they would be able to extend the Protocol without any unionist support.
Loyalist anxieties are being stoked further by demographic reality. This year’s Census is likely to reveal that, for the first time since partition between the North and rest of Ireland in 1921, Catholics now outnumber Protestants.
The Good Friday Agreement states that the Secretary of State for Northern Ireland shall call a border poll “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”.
Though the Good Friday Agreement clearly allows for the border poll mechanism, much remains unclear. There is no guidance on how the Secretary of State would assess public opinion, how a referendum in the Republic of Ireland would work, or how a united Ireland would be negotiated. These points have never been tested by the courts and remain unresolved.
However a recent by poll found 47% of respondents in Northern Ireland wanted the region to remain in the UK, with 42% favouring it becoming part of a united Ireland. This suggests that the criteria for a referendum may not yet be met. There is also evidence of the growth of “non-aligned” voters — Protestants and Catholics who do not think of themselves as either unionists or nationalists.
But for now the politics of Northern Ireland are increasingly sensitive. The constitutional future of the province was central to the Brexit negotiations and has been used as a political football by both the UK and EU over the past five years. We are now beginning to witness the fallout. Unionist insecurities are growing and what happens next is far from certain.
