Northern Ireland Protocol
(Protocol on Ireland/Northern Ireland) The UK’s decision to leave not just the European Union but its Single Market and Customs Union too created a unique problem on the island of Ireland. Unless a special arrangement were found, the border between Northern Ireland (UK) and the Republic of Ireland (EU) would become a customs and regulatory border involving the standard checks the EU has at its border with any “third country”. Apart from the obvious practical and political difficulties, the creation of a “hard border” would, it was suggested, violate the terms of the Good Friday Agreement that had brought a precarious peace to the province in 1998.

The first attempt to solve this problem was the so-called Irish Backstop, a “safety net” measure set out in an annex to the draft Withdrawal Agreement negotiated by Prime Minister Theresa May in 2017. Under the Agreement, “Exit Day” would be followed by a transitional period of around two years during which the UK would remain in the Single Market while the government negotiated the country’s future relationship with the EU, including trade rules. If, at the end of this period, the UK and EU had failed to negotiate a deal that kept the Irish border open, the “Backstop” would come into force. In essence, the whole of the UK would enter a “single customs territory” with the EU, while Northern Ireland would remain aligned to some extra EU rules to ensure there was no customs border with the Republic. The separate regulations for Northern Ireland would necessitate some checks on goods entering the province from the rest of the UK.

This idea provoked great opposition amongst Conservative MPs, many of whom felt it could mean a Brexit in name only. Following Boris Johnson becoming Prime Minister in July 2019, a new arrangement was sought that would obviate the need for a UK-wide backstop. Effectively, it was agreed that a new permanent relationship should be developed between Northern Ireland and the EU, even if this meant that the province was to be treated differently from the rest of the UK. Following negotiations, the two sides agreed to such a scheme by means of the Protocol on Ireland/Northern Ireland, which was appended to a revised Withdrawal Agreement. Under the Protocol, Northern Ireland remains de facto in the EU Single Market, which means that the customs and regulatory border between the EU and the UK is not between Northern Ireland and the Irish Republic but between Northern Ireland and Great Britain. A line, as it were, has been drawn in the Irish Sea.

With the passing of the Withdrawal Agreement into law and the end of the implementation period on 31 December 2020, the provisions of the Protocol automatically entered into force. The Agreement states that after four years the UK must provide Northern Ireland with the opportunity to decide whether or not its provisions remain in place by means of an unspecified consent mechanism. The UK government has since set out its proposals for such a mechanism in a unilateral declaration, which it will legislate for before the first consent decision is required. Under the current timeline, that would be at the end of 2024. See also Internal Market Act 2020.

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