Northern Ireland Protocol
The Protocol on Ireland/Northern Ireland, commonly abbreviated to the Northern Ireland Protocol, is a protocol to the Brexit withdrawal agreement that sets out Northern Ireland’s post-Brexit relationship with both the EU and Great Britain. The Withdrawal Agreement, including the Protocol, came into effect on 1 January 2021. Citing the island of Ireland's "unique circumstances", the Protocol governs unique arrangements on the island between the United Kingdom and the European Union; it regulates some aspects of trade in goods between Northern Ireland and the rest of the United Kingdom.
The Protocol's arrangements, under which Northern Ireland but not the rest of the UK remains in the EU single market for goods, allow the maintenance of the open border between Northern Ireland and the Republic of Ireland. The establishment of the open border was a key aspect of the Northern Ireland Peace Process and Good Friday Agreement which ended the Northern Ireland Conflict. The Protocol instead creates a de facto customs border in the Irish Sea between Northern Ireland and Great Britain.
Principally to address concerns of Ulster Unionists about the Protocol, in 2022-23 the EU and UK agreed revised arrangements for its operation the Windsor Framework which took effect on 24 March 2023. The Democratic Unionist Party declined to accept the Framework as meeting their concerns until further adjustments to its operation were agreed on 31 January 2024 and the formation of a new Northern Ireland Executive began.
Summary of key aspects and provisions
The Republic of Ireland–United Kingdom border has had a special status as an international border since the Good Friday Agreement of 1998 ended The Troubles, the thirty-year internecine conflict in Northern Ireland. As part of the Northern Ireland Peace Process, the border has been largely invisible, without any physical barrier or custom checks on its 270 crossing points; this arrangement was made possible by both countries' common membership of both the EU's Single Market and Customs Union and of their Common Travel Area.On the UK's withdrawal from the European Union, the border in Ireland became the only land border between the UK and EU. EU single market and UK internal market provisions require certain customs checks and trade controls at their external borders. The Northern Ireland Protocol is intended to protect the EU single market, while avoiding imposition of a 'hard border' that might incite a recurrence of conflict and destabilise the relative peace that has held since the end of the Troubles.
Under the Protocol as originally agreed, Northern Ireland is formally outside the EU single market, but EU free movement of goods rules and EU Customs Union rules still apply; this ensures there are no customs checks or controls between Northern Ireland and the rest of the island. Goods from Northern Ireland may be moved without restriction to Great Britain but not conversely. Thus, in place of a Republic of Ireland/Northern Ireland land border, the protocol has created a de facto customs border in the Irish Sea, separating Northern Ireland from Great Britain, to the disquiet of prominent Unionists.
Under the terms of Article 18, the Northern Ireland Assembly has the power to decide whether to terminate or continue the protocol arrangements. "The Withdrawal Agreement doesn't state how Northern Ireland should give consent – it is for the UK to determine how that decision is made" but the UK Government has already declared that the decision will be made by a simple majority of Assembly members. In the event that consent is not given, the arrangements would cease to apply two years thereafter. The Joint Committee would make alternative proposals to the UK and EU to avoid a hard border on the island of Ireland. If consent is given, then the question may be put again after a further four years. At the 2022 Northern Ireland Assembly election, parties favouring continuance of the protocol won 53 of the 90 seats. Nevertheless, Northern Ireland's Unionist parties objected strongly to the protocol: protesting against it, the Democratic Unionist Party obstructed its operation and, until early February 2024, prevented the Northern Ireland Assembly from assembling.
The Protocol's terms were negotiated shortly before the 2019 general election and concluded immediately after it, in December of that year. The withdrawal agreement as a whole, including the protocol, was ratified in January 2020. In February 2023, the European Commission and the Government of the United Kingdom announced agreement in principle to modifications of aspects of the operation of the protocol.
Historical context
In 1921, the western and southern four-fifths of the island of Ireland seceded from the United Kingdom of Great Britain and Ireland as the Irish Free State. The north-eastern fifth, renamed Northern Ireland, remained part of the United Kingdom, which became the United Kingdom of Great Britain and Northern Ireland. The "province" had suffered sectarian tensions and at times outbreaks of serious violence between Unionists, who wish to remain part of the UK and trace their origin to the Plantation of Ulster, and Nationalists, who seek a united Ireland. The most recent of these, known as 'the Troubles', occurred during the period from the late 1960s to the late 1990s. One of its features was that the Republic of Ireland–United Kingdom border was heavily fortified and militarised. In 1998, the Belfast Agreement/ Good Friday Agreement brought the conflict to an end and the border was demilitarised. Since both states were members of the European Union at the time and have been operating a Common Travel Area since 1921, there was no other border infrastructure.In the Brexit referendum of 2016, nearly 56% of Northern Irish voters opted to remain in the EU, though the overall UK-wide vote was 52% to leave. A subsequent study suggests that leave was supported by a majority of unionists, while remain was supported by a majority of nationalists and by those who did not identify as unionist or nationalist.
Following the Brexit referendum, the first May government decided that not only should the United Kingdom leave the European Union but also that it should leave the European Union Customs Union and the European Single Market. This meant that a customs and regulatory border would arise between the UK and the EU. Whilst the sea border between Great Britain and continental Europe was expected to present manageable challenges, the UK/EU border in Ireland was recognised as having rather more intractable issues. These were summarised in what became known as the Brexit Trilemma, because of three competing objectives: no hard border on the island; no customs border in the Irish Sea; and no British participation in the European Single Market and the European Union Customs Union. It is not possible to have all three.
Negotiation
Irish backstop
The Protocol replaced the Irish backstop, the rejected first attempt to resolve the trilemma. The "backstop" was an appendix to a draft Brexit withdrawal agreement developed by the May government and the European Commission in December 2017 and finalised in November 2018. This proposal provided for the UK as a whole to have a common customs territory with the EU until a solution was delivered that would avoid the need for evident customs controls at the UK/EU border in Ireland and also avoid any customs controls within the UK. The "backstop" element was that the arrangement would have continued to apply potentially indefinitely unless the UK and the EU were jointly to agree on a different arrangement for the border in Ireland.The backstop would have required keeping Northern Ireland in some aspects of the European Single Market.
The Irish government, Sinn Féin, the SDLP and the cross-community Alliance Party and Green Party supported the backstop proposal, whereas the DUP, UUP and TUV were opposed. By early 2019, the Westminster Parliament had voted three times against ratifying this version of Withdrawal Agreement and thus also rejected the backstop.
Attempted changes to the backstop concept
After becoming Prime Minister on 24 July 2019, Boris Johnson sought to remove the backstop; this was refused by the EU, who wanted a legally operational solution. On 2 October, Johnson presented a potential replacement for the 2018 Irish backstop, proposing that Northern Ireland stay aligned with the EU on product standards but remain in the UK customs territory. This would necessitate product checks between Great Britain and Northern Ireland, but no customs checks for goods expected to stay within the UK. For the border between Northern Ireland and the Republic, his proposal would entail customs checks between Northern Ireland and the Republic, which would be potentially assisted by unspecified technology implemented distantly from the border, but no product and safety standard checks within the island of Ireland. This was rejected by the EU.Protocol principle agreed
On 10 October 2019, Johnson and the Irish Taoiseach Leo Varadkar held "very positive and very promising" talks that led to a resumption in negotiations, and a week later, on 17 October, Johnson and Jean-Claude Juncker announced that they had reached agreement on a new Withdrawal Agreement which replaced the backstop with a new protocol on Ireland/Northern Ireland.In the formally negotiated Withdrawal Agreement, the 'Irish backstop' was removed, and replaced by this new protocol. The whole of the UK would leave the EU Customs Union as a single customs territory with Northern Ireland included in any future British trade agreements, but that Northern Ireland would adopt EU Single Market regulations on goods and thus remain an entry point into the EU Customs Union. Doing so would prevent a "hard border" on the island of Ireland. The Protocol includes some protections for human rights and equality measures in its Article 2 and specific EU anti-discrimination measures are listed in Annex 1.
This new protocol has been dubbed by some as "Chequers for Northern Ireland", due to its similarity with the UK-wide Chequers future relationship plan proposed by Theresa May, which had previously been rejected by the EU and denounced by Johnson.
During the 2019 election campaign, a leaked HM Treasury analysis explained some of the implications of the protocol. The undated paper said Northern Ireland would be cut off from whole swathes of the UK Internal Market, would face shortages and prices rises in shops and would effectively be severed from the UK's economic union. Asked about the report at press conference, Prime Minister Johnson said "there will be no checks on goods going from GB to NI, and from NI to GB".