Originally published in The Geopolitics
Upholding and respecting the rule of law is the cornerstone of a free and democratic society. Since the passing of the Withdrawal Agreement, an international treaty with the EU, senior government officials have hinted that overriding aspects of the Northern Ireland Protocol (which the UK government brokered) could break international law in a ‘specific and limited way’ – as quoted by the Northern Ireland Secretary, Brandon Lewis.
This month, the government has introduced its politically divisive Northern Ireland Protocol Bill that seeks to unilaterally disapply aspects of the Protocol. It is also accompanied by a legal statement, which aims to provide a mandate for the government’s new tact in fixing the Stormont stalemate in Northern Ireland and resolving headaches that the Protocol raises within unionist corners of this kingdom.
As a reminder, the Protocol was pursued by the UK government as one of the ways in which to seal a deal with the EU back in the gloomy winter of 2020 – essentially placing an internal border in the Irish Sea and separating Northern Ireland from the rest of the UK economically.
Northern Ireland has done well, economically, with this arrangement so far. Benefitting from access to the EU Single Market, it has become an investor and trading hotspot in Western Europe. British mainland businesses, US corporates, and European companies all see the devolved nation as being at the nexus of markets. The National Institute of Economic and Social Research, a London think tank, evaluated that Northern Ireland’s economic output and growth is slightly higher than the rest of the UK according to the latest figures available.
Former British Prime Minister, Theresa May, must be wincing at these developments. The current Protocol arrangement – that she fought so vehemently to avoid through her backstop deal – has thrown up the exact scenario that we see ourselves in now that she hoped to avoid: dissatisfied unionists that believe Northern Ireland is vulnerable to nationalists engineering a plan for a united Ireland.
The Northern Ireland Protocol Bill is an attempt to preserve East-West trade links and Northern Ireland’s place in the UK, while maintaining the open border between Northern Ireland and the Republic (a fundamental element of the Good Friday Agreement, which ended thirty years of civil conflict).
Described as being a breach of international law by legal experts and politicians at home and across the globe, the legislation has only come into existence as a result of the recent Northern Irish Assembly elections in early May (the significance of which I covered in an earlier piece).
The UK’s sporadic and desperate attempts to restore governance in Northern Ireland has been dictated by the Democratic Unionist Party’s (DUP) refusal to nominate a Speaker or Deputy First Minister over the current Protocol arrangements. The largest unionist party – which, up until the election, haf held a majority in the Assembly – has a stanglehold on the UK over the issue. They and other unionist political parties, such as the Ulster Unionists and hardline Traditional Unionist Voice, believe that it breaches many of the central tenets of the Act of Union.
Despite a majority of the current Members of the Legislative Assembly (MLAs) in Northern Ireland actually supporting the Protocol, they feel helpless that the DUP is, once again, speaking on behalf of Northern Ireland as a whole and deciding on when it can resume governing.
It is worth reminding ourselves that if the Assembly and a ruling Executive are not restored in less than five months time from now, a new election may have to take place. This potentially risks the successes of parties like Sinn Féin and the Alliance Party. Otherwise, Brandon Lewis will have to use his powers as Secretary of State to come to an alternative.
Given that the Northern Ireland Protocol Bill is believed to take considerable time to pass through Parliament due to opposition on both sides of the House of Commons and Lords, the election’s expiry could potentially be viewed as being in the DUP’s favour (having been beaten to the position of largest party in the Assembly by nationalist opponents, Sinn Féin, for the very first time).
The current impasse and political dilemmas that the Bill brings will likely not fade for quite some time. Until the DUP’s seven tests and assurances are met and guaranteed (i.e. when the proposed Bill becomes law in its current form), the prospect of government retuning to Northern Ireland is not looking very bright. Whether the Bill does pass, on grounds of legality or hardcore opposition, is yet to be seen. The EU’s legal case against the UK government may also scupper what is intended to be a prompt process and provide even more headache for concerns within Whitehall around the UK’s international standing, as well as the integrity of the Union.