Mark Francois is Chairman of the European Research Group, a former Armed Forces Minister and is MP for Rayleigh and Wickford.
The key point about the Northern Ireland Protocol is that no enduring deal, which includes the restoration of power-sharing and the re-establishment of the Northern Ireland Executive, will succeed unless and until it wins the backing of the Democratic Unionist Party (DUP), including that of its skilful leader, Jeffrey Donaldson.
Importantly in this context, the Northern Ireland Protocol (the Protocol) was never meant to be a threat to the 1998 Belfast or Good Friday Agreement ( GFA). Indeed, Article 1 of the Protocol specifically states:
“This Protocol is without prejudice to the provisions of the 1998 Agreement in respect of the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of the majority of its people.”
Nevertheless, the heavy-handed and highly bureaucratic way in which the Protocol has subsequently been implemented by the EU has led to a collapse in support for it among the Unionist population. Given that the principle of cross-community consent is fundamental to the operation of the GFA, Unionist disillusionment over the Protocol now threatens to undermine support for the GFA itself.
For Unionists, this issue goes way beyond economics. Having been told that the Protocol even overrides the 1801 Act of Union, this is now a fundamental, constitutional issue. For them, it’s now about their very identity and the integrity of the entire United Kingdom, not just about inward investment or red and green lanes and phytosanitary checks.
No elected Unionist politician now supports the Protocol. Indeed, since Donaldson took over the leadership of the DUP, which was then scoring barely 20 per cent in the polls, his principled and articulate opposition to the Protocol has grown into the high 20s. That’s why sabre-rattling from the Northern Ireland Office about having to call elections in Northern Ireland if no deal can be reached doesn’t faze the DUP at all: they would probably win them anyway.
Moreover, with the Uber-hawks of the Traditional Unionist Voice (TUV), led by Jim McCallister sitting out to their right, ready to pounce on any sign of perceived weakness, the DUP are highly unlikely to give in to bullying from London, Brussels or indeed anywhere else.
When he addressed a recent plenary meeting of the ERG, one of the most powerful things Donaldson said, was: “Like many of my countrymen, I am sick and tired of being treated like a second-class citizen, in my own country.”
For the DUP, while continuity of trade and potential economic investment is clearly important, no deal which leaves EU Law in place in Northern Ireland afterwards is acceptable. If there is no EU Law in place, there is nothing for the (to them) despised European Court of Justice (ECJ) to adjudicate upon.
So, given all of this, is any enduring deal actually possible? Speaking personally, I believe that it is, for several key reasons. The first of these is that, unlike the GFA, from the outset, the Protocol was only intended to be a temporary solution, inserted into the original Withdrawal Agreement to replace the dreaded “backstop” and subject to further negotiations thereafter.
While Article 16 (which it should be remembered the EU once actually triggered) is most often referred to, the key articles in the Protocol are actually Article 1 (see above) and Article 13 (8) which states that the Protocol can be superseded, in part or in whole, if a “subsequent agreement” can be negotiated between the UK and the EU. In other words, the Protocol itself always envisaged that it might be replaced.
Second, there is now undoubtedly “Protocol fatigue” across much of the EU, most of whose member states would now just like to see the whole irksome matter finally concluded. Given the UK’s strong leadership over Ukraine, both by Boris Johnson and latterly Rishi Sunak, the EU’s threat of a “trade war” is a completely idle one, as it requires unanimity, which would now be very unlikely, particularly from the Eastern European states.
Third, President Biden’s strong Irish heritage, combined with pressing domestic political considerations, including within the Democratic Party itself, means the US are currently extremely keen to see an enduring deal. Any attempt to agree to a minor, technical, agreement but which seeks to somehow “park” the key political and constitutional issues, is likely to be widely perceived as a sham, in which case the President might just as well save himself the plane ticket.
Fourth, even the Taoiseach, Leo Varadkar, is now dialing down his rhetoric . Given that both he and the Northern Ireland Minister, Steve Baker, have recently conceded that the original Protocol negotiations could perhaps have been better handled, this has, arguably, created some breathing space on the island of Ireland to facilitate a lasting deal.
Fifth, Rishi Sunak is too intelligent to fall into Sir Keir Starmer’s opportunist trap, of offering to drive a deal through the Commons with Labour votes, before he even knows what’s in it. No Prime Minister wants to allow the Leader of the Opposition to crow from the Despatch Box that he is really running the country.
Moreover, by reintroducing the Northern Ireland Protocol Bill, which flew through the Commons, into the House of Lords (at Report Stage) and making plain his intent to invoke the Parliament Act, as he has previously promised, should the Lords attempt to gut the Bill, the Prime Minister could demonstrate very clearly to the EU that he will not allow this issue to drag on forever.
This is also important to forestall any attempt by men of violence, be they so-called “Republican” or “Loyalist”, to exploit further delay, to claim that politics has failed and as an excuse to return to armed conflict, a situation which absolutely nobody else wishes to see.
Given what my ERG colleague, Craig Mackinlay, calls this “temporarily favourable alignment of the planets” there really is a chance of a permanent solution, if all sides now take it.
The ERG’s preferred solution has consistently been a system of “mutual enforcement”, by which both the UK and EU mutually agree to ensure that no goods which fail to meet the other’s standards are permitted for export. This can be achieved via a combination of so-called “trusted-trader” schemes and intelligence-based checks on goods, thus obviating the need for any kind of hard border. Via this method, the EU’s single market can be protected, without the need for the ECJ to play any part in the Governance of Northern Ireland. Utilising
Article 13(8) of the Protocol, it could then be replaced by a “subsequent agreement”‘ to this effect.
In summary, all prior experience shows that “breakthroughs” in negotiations with the EU are usually only achieved at the eleventh hour. The 10th April 2023, the 25th anniversary of the Good Friday Agreement now potentially provides the “compression” which might be necessary to achieve a lasting deal. However, trying to separate out the vital constitutional issue simply will not work. Only a comprehensive settlement, one which is acceptable to both Nationalists and Unionists, is likely to be sufficiently credible and enduring enough to protect the vital Good Friday Agreement, in which case, as Michel Barnier once memorably said: “the clock is ticking.”
Mark Francois is Chairman of the European Research Group, a former Armed Forces Minister and is MP for Rayleigh and Wickford.
The key point about the Northern Ireland Protocol is that no enduring deal, which includes the restoration of power-sharing and the re-establishment of the Northern Ireland Executive, will succeed unless and until it wins the backing of the Democratic Unionist Party (DUP), including that of its skilful leader, Jeffrey Donaldson.
Importantly in this context, the Northern Ireland Protocol (the Protocol) was never meant to be a threat to the 1998 Belfast or Good Friday Agreement ( GFA). Indeed, Article 1 of the Protocol specifically states:
Nevertheless, the heavy-handed and highly bureaucratic way in which the Protocol has subsequently been implemented by the EU has led to a collapse in support for it among the Unionist population. Given that the principle of cross-community consent is fundamental to the operation of the GFA, Unionist disillusionment over the Protocol now threatens to undermine support for the GFA itself.
For Unionists, this issue goes way beyond economics. Having been told that the Protocol even overrides the 1801 Act of Union, this is now a fundamental, constitutional issue. For them, it’s now about their very identity and the integrity of the entire United Kingdom, not just about inward investment or red and green lanes and phytosanitary checks.
No elected Unionist politician now supports the Protocol. Indeed, since Donaldson took over the leadership of the DUP, which was then scoring barely 20 per cent in the polls, his principled and articulate opposition to the Protocol has grown into the high 20s. That’s why sabre-rattling from the Northern Ireland Office about having to call elections in Northern Ireland if no deal can be reached doesn’t faze the DUP at all: they would probably win them anyway.
Moreover, with the Uber-hawks of the Traditional Unionist Voice (TUV), led by Jim McCallister sitting out to their right, ready to pounce on any sign of perceived weakness, the DUP are highly unlikely to give in to bullying from London, Brussels or indeed anywhere else.
When he addressed a recent plenary meeting of the ERG, one of the most powerful things Donaldson said, was: “Like many of my countrymen, I am sick and tired of being treated like a second-class citizen, in my own country.”
For the DUP, while continuity of trade and potential economic investment is clearly important, no deal which leaves EU Law in place in Northern Ireland afterwards is acceptable. If there is no EU Law in place, there is nothing for the (to them) despised European Court of Justice (ECJ) to adjudicate upon.
So, given all of this, is any enduring deal actually possible? Speaking personally, I believe that it is, for several key reasons. The first of these is that, unlike the GFA, from the outset, the Protocol was only intended to be a temporary solution, inserted into the original Withdrawal Agreement to replace the dreaded “backstop” and subject to further negotiations thereafter.
While Article 16 (which it should be remembered the EU once actually triggered) is most often referred to, the key articles in the Protocol are actually Article 1 (see above) and Article 13 (8) which states that the Protocol can be superseded, in part or in whole, if a “subsequent agreement” can be negotiated between the UK and the EU. In other words, the Protocol itself always envisaged that it might be replaced.
Second, there is now undoubtedly “Protocol fatigue” across much of the EU, most of whose member states would now just like to see the whole irksome matter finally concluded. Given the UK’s strong leadership over Ukraine, both by Boris Johnson and latterly Rishi Sunak, the EU’s threat of a “trade war” is a completely idle one, as it requires unanimity, which would now be very unlikely, particularly from the Eastern European states.
Third, President Biden’s strong Irish heritage, combined with pressing domestic political considerations, including within the Democratic Party itself, means the US are currently extremely keen to see an enduring deal. Any attempt to agree to a minor, technical, agreement but which seeks to somehow “park” the key political and constitutional issues, is likely to be widely perceived as a sham, in which case the President might just as well save himself the plane ticket.
Fourth, even the Taoiseach, Leo Varadkar, is now dialing down his rhetoric . Given that both he and the Northern Ireland Minister, Steve Baker, have recently conceded that the original Protocol negotiations could perhaps have been better handled, this has, arguably, created some breathing space on the island of Ireland to facilitate a lasting deal.
Fifth, Rishi Sunak is too intelligent to fall into Sir Keir Starmer’s opportunist trap, of offering to drive a deal through the Commons with Labour votes, before he even knows what’s in it. No Prime Minister wants to allow the Leader of the Opposition to crow from the Despatch Box that he is really running the country.
Moreover, by reintroducing the Northern Ireland Protocol Bill, which flew through the Commons, into the House of Lords (at Report Stage) and making plain his intent to invoke the Parliament Act, as he has previously promised, should the Lords attempt to gut the Bill, the Prime Minister could demonstrate very clearly to the EU that he will not allow this issue to drag on forever.
This is also important to forestall any attempt by men of violence, be they so-called “Republican” or “Loyalist”, to exploit further delay, to claim that politics has failed and as an excuse to return to armed conflict, a situation which absolutely nobody else wishes to see.
Given what my ERG colleague, Craig Mackinlay, calls this “temporarily favourable alignment of the planets” there really is a chance of a permanent solution, if all sides now take it.
The ERG’s preferred solution has consistently been a system of “mutual enforcement”, by which both the UK and EU mutually agree to ensure that no goods which fail to meet the other’s standards are permitted for export. This can be achieved via a combination of so-called “trusted-trader” schemes and intelligence-based checks on goods, thus obviating the need for any kind of hard border. Via this method, the EU’s single market can be protected, without the need for the ECJ to play any part in the Governance of Northern Ireland. Utilising
Article 13(8) of the Protocol, it could then be replaced by a “subsequent agreement”‘ to this effect.
In summary, all prior experience shows that “breakthroughs” in negotiations with the EU are usually only achieved at the eleventh hour. The 10th April 2023, the 25th anniversary of the Good Friday Agreement now potentially provides the “compression” which might be necessary to achieve a lasting deal. However, trying to separate out the vital constitutional issue simply will not work. Only a comprehensive settlement, one which is acceptable to both Nationalists and Unionists, is likely to be sufficiently credible and enduring enough to protect the vital Good Friday Agreement, in which case, as Michel Barnier once memorably said: “the clock is ticking.”