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Roderick Crawford edited Parliamentary Brief 1992-2012 and currently works in conflict resolution. He is director of If You Are Safe I Am Safe.

This year marks the centenary of the foundation of Northern Ireland. Its genesis arose out of the Irish problem and its solution; controversial then and now. For its first 50 years, it was the UK’s first devolved parliament; whilst discriminating against Catholics, it had higher living standards than the Republic, helped by the UK’s welfare state.

Civil rights protests, the Troubles and the failure of the Sunningdale power sharing talks in 1972-73 brought over a quarter of a century of Direct Rule; This, by fits and starts, de-sectarianised the Northern Irish state; this process was completed by the reforms of the 1998 Belfast Agreement, which ended the Troubles and has sustained social stability ever since.

The constitutional foundation of this settlement is the continued place of Northern Ireland in the Union of Great Britain and Northern Ireland, based on the consent of the people of Northern Ireland. The United Kingdom (the Union) provides a wide tent for ethnic, religious, political, cultural, legal, and constitutional norms; for financial redistribution and economic support. Whilst not a perfect fit for Northern Ireland, the Union is the best fit there is for now and the near future, beyond which we cannot look. The majority of recent polls show a good majority for remaining in the Union; more detailed face-to-face polling shows still higher majorities.

Changes to the demographic balance between communities don’t translate proportionally in to changes in support for remaining in the Union or for unification with the Republic. The Union — or simply ‘Northern Ireland’ — offers the least threat to any community in Northern Ireland and by far the most stable framework for all. London has no selfish interest in Northern Ireland – only its obligations to ensure peace, good governance, and access to justice. The role of the Union in Northern Ireland is one of fulfilling its duties rather than exercising its rights; this is key to maintaining the support of the majority of the people of Northern Ireland, and the acquiescence of the rest for Northern Ireland’s continued place in the Union.

As in Scotland, there is a difference between where the aspirations of identity and where those of self-interest lead. Northern Ireland still provides its people with a better standard of living than the Republic does — including higher quality public services, more generous welfare provision and higher levels of public sector employment; this appeals to both communities. Unification would reduce these benefits and living standards would fall. The value of the Union has been highlighted again by the furlough schemes and the better vaccine roll out compared to the Republic.

The Belfast Agreement has been in place for almost a quarter of a century — it will likely be in place for another quarter of a century yet. Whilst it has proved controversial for many in the Unionist community, it is now accepted even by the DUP who campaigned against it in 1998. It has bedded down, and is accepted, gladly or grudgingly, as framing the way things are.

It is hoped by many that the same will be said of the Northern Ireland Protocol, once it has bedded down. However, there are key differences. The Belfast Agreement was designed around the specific circumstances of the people of Northern Ireland — largely by local political negotiators — and aimed to serve their interests above those of any external party. It has been amended as needs have arisen and the application of parts of it have been suspended as circumstances have required.

It was originally hoped that the application of EU regulations under the Protocol would not be prioritised over the commitment to protect the Belfast Agreement in all its parts. Further, the inclusion of the consent clause that Boris Johnson negotiated into the amended Protocol of October 2019 was meant to subject the Protocol to democratic accountability, and thus to give the EU real incentives to make the Protocol work in the interests of all the people of Northern Ireland. Early signs are that this is not working out — though this may not be a lost cause.

The problem with the working of the Protocol is that it discriminates against the East-West dimension to a degree that fundamentally conflicts with the balance of the Belfast Agreement, with its emphasis on maintaining Northern Ireland’s place in the Union, as well as Strand Three of the Agreement ,concerned with the totality of relationships on these islands.

Significant barriers and costs on goods trade from Great Britain to Northern Ireland, restricting access to goods and raising costs, makes this problem only too real to the man and woman in the street, unsettling significant elements of the Unionist community; this may well cause serious political and social destabilisation in the immediate future. Whilst much can be done to calm the atmosphere, ignoring the imbalance in the Protocol is not one of them: this must be addressed properly.

In 2017, the UK and EU mapped the regulatory framework required to support North-South co-operation post-Brexit; this resulted in the continued application of a wide number of EU regulations in Northern Ireland. No equivalent exercise was conducted for East-West co-operation. Such an exercise should now be conducted to inform UK proposals for changes to the operation of the Protocol and to give those proposals credibility with the EU and in Northern Ireland. A parallel real-time measure of trade and economic impacts of the Protocol would help create an atmosphere where facts not fear inform conversations about the Protocol in Northern Ireland and give the UK timely information to share with the EU.

Key problems in the current operation of the Protocol are found in Articles 5 and 6. Article 5 deals with exemptions for duties on goods ‘not at risk’ of entering the European Union but does not authorise wider exemptions to non-tariff barriers. Article 6 seeks to protect Northern Ireland’s position in the UK internal market but fails to address East-West trade, focusing on West-East (NI-GB). Of Northern Ireland’s external goods sales (to GB and the world), just over twice as much goes to the UK as to the Republic (though for services it is four times as much); for imports into Northern Ireland, four times as many goods come from Great Britain compared to the Republic. East-West trade also impacts Northern Irish society more than West-East and is therefore far more politically sensitive.

The UK has a commitment to fight Northern Ireland’s corner. This is recognised in the Protocol which reprints paragraph 48 of the 2017 Joint Report. This states that the UK remains ‘committed to protecting and supporting continued North-South and East-West co-operation across the full range of political, economic, security, societal and agricultural contexts and frameworks for co-operation, including the North-South implementation bodies’.

Fulfilling this commitment requires the UK to negotiate concessions that will make the Protocol work better for Northern Ireland. The case for formal amendment is strong but politically difficult for the EU — though it may yet come to that; it is far easier to allow permanent exemptions to the strict rules governing the operation of the Protocol and to run it on a light touch basis. At the end of the day, if negotiations fail despite the evidence of serious economic and societal difficulties and trade divergence resulting from the operation of the Protocol, then it is the UK’s responsibility to act unilaterally to support Northern Ireland. This would be a correct use by the UK of Article 16 and would be a fulfilment of its obligations under the Belfast Agreement.