After a very bumpy few months when it seemed, at times, that the UK government was about to junk the Northern Ireland protocol, 2022 has started with an improved atmosphere between the British government and the European Union.
The UK’s repeated threats in October to use article 16 of the protocol to walk away from the obligations it had signed up to gave rise to threats from the EU to retaliate by cancelling the entire EU-UK trade and co-operation agreement (TCA) which grants tariff- and quota-free access to EU markets to UK businesses.
This firm response seems to have brought about a remarkable change in tone in London, where officials have been stressing the need to find workable solutions rather than focusing on issues such as the role of the European Court of Justice, where compromise would have been unattainable.
The departure of the combative Lord Frost may also help. Not being an MP, there were limits to where else his career could go once Brexit issues had been solved. His successor, Liz Truss, is an ambitious MP and minister with other responsibilities and big ambitions and so may have less of an investment in reopening the fundamentals of the Brexit deal.
The UK government may still invoke article 16 if talks do not go well. But in some ways this would not be the worst outcome for the Irish Government. If the UK uses article 16 to suspend key elements of the protocol, a firm response from the EU is likely. Under article 779 the union is entitled, if it wishes, to terminate the entire TCA with 12 months’ notice or to terminate its trade provisions only with nine months’ notice.
This would place unbearable pressure on the UK, which would face a ticking clock counting down to the enormous economic disruption involved in losing quota- and tariff-free access to the EU.
Indeed, it was the unwillingness of the Johnson government to endure such disruption that led it to agree to the Northern Ireland protocol in 2019, so there is a high likelihood of a UK climbdown in these circumstances.
Compliance
Much more challenging for the Government would be a scenario where the UK government does not trigger article 16 but instead consistently partially fails to fulfil its obligations under the protocol, most notably its duty to check goods coming into Northern Ireland from Britain for the compliance with EU law.
In the absence of dramatic moves by the UK, it would be hard to rally the rest of the EU behind a dramatic response that would risk a full-scale trade war. But, over time, with the UK failing to uphold its obligations, the open Border between the Republic and Northern Ireland would become a hole in the border of the EU single market through which goods that do not meet the standards of EU law flow into the EU market.
In the longer term, the union could not put up with a gap in the border of the single market and the Government would eventually come under pressure to do something to plug that gap or to face a question mark over Ireland’s continued membership of the single market.
The Government has been vague about what it would do in such a scenario. This is understandable. If Dublin admitted that it would erect Border infrastructure to save Ireland’s status as a full EU member, this would allow the UK government to claim that such a course of action was possible all along.
But allowing Ireland’s membership of the single market to be called into question would have grave consequences. It would place a question mark over Ireland’s economic future, particularly its status as a desirable location for foreign investment. More fundamentally, it would compromise Ireland’s EU membership, thus destroying the central feature of the last half a century of Irish foreign policy and, a century on from the Anglo-Irish Treaty, would undermine the notion that Ireland was meaningfully separate from the UK.
Policy shift
This would also represent a fundamental shift in the policy pursued by Irish governments for the past 100 years. The treaty represented a choice to prioritise the achievement of independence for most of the country over the interests of northern nationalists.
This approach has understandably been resented by many in the North but it is one that has been consistently followed. Faced with the collapse of the Boundary Commission in 1925, inducements to abandon neutrality during the second World War and the outbreak of violence in the North in the late 1960s, the policy of the Dublin government has always been to prioritise the independence and stability of the southern state over moves that might have undermined partition.
If 2022 sees an Irish government reluctantly erecting Border infrastructure to save Irish EU membership, the sense of betrayal among northern nationalists may well be so acute that the risk of paramilitary violence against customs infrastructure may be high. But to sacrifice Ireland’s single market membership to prevent the return of the customs infrastructure that existed between the North and the Republic up until 1993 would represent a dramatic change in policy, a change that could have enormous economic consequences and would leave Ireland’s claim to genuine independence looking threadbare.
While the Government has very good reasons not to make any public pronouncements on its plans, in private Ministers will inevitably be giving careful consideration to the question of whether the pledge not to erect Border infrastructure would be maintained in all eventualities.
Ronan McCrea is professor of constitutional and European law at University College London