There are two realities that we should face. The first is that the Good Friday Agreement (GFA) was a matter of identity. The second is that there is no clean and perfect way to solve problems. If there were, it would have already been found during these years of painstaking negotiations. Something must be given if any kind of peace and stability is to be preserved in Northern Ireland.
It goes without saying that there are two communities in Northern Ireland: a Unionist and a Republican. The GFA allowed each community to feel that its own identity was being preserved. Seamless trade (and movement of people) with both Great Britain and the Republic of Ireland was combined with the sharing of power so that each community felt that its identity had been preserved. The Republican community could feel Irish, the Unionist community could feel British. The consent of both communities for any changes was an essential part of the GFA.
Brexit has shattered that agreement. So why did both the UK and the EU sign the Northern Ireland protocol when it was obvious that as written it violates the identity of the Unionist community and could never count on bipartisan support?
One explanation is that the UK government cynically signed the protocol. He knew perfectly well that it would never be maintained and that it would have to be revised or abandoned altogether. But, given his personality, Boris Johnson might have considered that a problem for another day.
And the EU? Or the EU negotiators did not understand Northern Ireland politics and culture. Or they also knew that it would never hold and, just as cynically, believed that it could later be used to return the whole of the UK to the regulatory orbit of the EU and to the jurisdiction of the European Court of Justice, a belief in which they could have been encouraged by Theresa May’s negotiating stance.
But now we know that this dynamic alignment is not going to happen. And there is no need to argue again about whether Brexit was a good idea or a bad idea. What done is done. I say this as a voter against Brexit.
The reality is that peace in Northern Ireland can only be preserved if both communities once again feel that their identity is respected and preserved. This cannot happen if there are regulatory borders, either with the Republic or with the rest of the UK. Or if the EU has jurisdiction over the province without democratic consent.
It also doesn’t matter if the borders are digitized, seamless and, for all intents and purposes, practically invisible. In terms of identity, these borders will continue to hold an important place in the hearts and souls of Northern Ireland communities.
The UK government was wrong – and may well have known it – when it signed the original agreement by claiming that brilliant and currently non-existent technology could provide an answer. Technology can never solve political problems. Like the Northern Irish business community, it is wrong today to say that these are purely technical issues and that politics should be kept out of the way. A strange position.
None of us, including President Biden, should have any doubts. The Northern Ireland protocol, as it currently stands, violates the GFA. Anyone who claims otherwise, and there are many who do, are either misinformed or disingenuous, if not downright dishonest.
So where do we go from here?
The British government would be within its right to invoke article 16 and suspend the protocol. Just as Mrs. Von der Leyen was willing to invoke article 16 and unilaterally suspend the protocol on covid-19 vaccines. But this would not be a solution. It would simply remove the old protocol from the table and establish a new baseline for what ultimately has to happen: a political settlement that is acceptable to all parties.
As for trade in goods, the compromise approach is, as always, imperfect. Remove barriers to goods flowing from Great Britain to Northern Ireland only if they are intended for consumption within Northern Ireland, but not for re-export across the Irish border.
The EU appears to be moving towards this type of agreement. It is true that leaks are likely. The magnitude of these leakages is unknown, but a reasonable starting hypothesis is that they are not large enough to undermine the entire integrity of the single market. After all, leakage of non-conforming goods into the EU single market from other parts of the world already occurs through many of the main European ports, where, despite the thin layer of protection enshrined by By law, it is simply impractical to check and re-check all items that arrive from around the world.
If it were, there would be, for example, large amounts of cocaine flowing into the EU from producing countries. However, despite these leaks (probably quite large), the single market has not collapsed as a result. The idea that some leaks across the Irish border would do just that is laughable.
The compromise solution is a political bungling that is bureaucratically and technically flawed. But it is the only way forward. And the EU is an expert and well used to technically flawed political bungling in managing its own affairs (just look at the structure of the single currency). The question is not, therefore, technical, but one of political will.
The other sticking point revolves around the jurisdiction of the European Court of Justice. The reality is that the original idea that Northern Ireland could continue to be part of the single market has not worked. If you want to preserve identities, you have to think differently. From a political point of view, it will be necessary to consider that the province has a special status as it is inside and outside the single market at the same time. Another essential political stunt bureaucrats won’t like.
In such a situation, having the ECJ as the sole arbiter of disputes simply does not work. The UK government has suggested an independent arbitration body, as is normal for all such agreements. Maybe someone can come up with a better idea, but we haven’t seen one yet.
The available options are clear. Make an imperfect political compromise now and move on. Wait until 2024, when the protocol will surely be rejected by the unionist community when it is submitted to the political consent of Northern Ireland. Or invoke Article 16 and start from scratch.
Joe Zammit-Lucia, founder of the RADIX network of think tanks on public policy (www.radixthinktank.org) and collaborator of Public Agenda
Disclaimer: This article is generated from the feed and not edited by our team.