Published:

“You break it, you own it.”  Who has broken the Northern Ireland Protocol?  Who owns it?  And how much of a contributor is it to the recent rioting in Northern Ireland, which thankfully seems to have stopped (optimistic view) or paused (pessimistic one)?

The second question is the easiest to answer, so let’s deal with it at the very start.  The Government and the EU co-own the Protocol.  This is not a matter of dispute; it is one of fact.

The Protocol is set out in 19 clauses and seven annexes near the end of the Withdrawal Agreement.  You may believe that the Irish Government was wrong to press for a regulatory border on trade in the Irish Sea (though it is an unusual one, since its restrictions are one-way); or you may think that Boris Johnson was wrong to have signed up to it.

Who has broken it?  Answers will vary, but ours is: the EU, briefly, when it invoked Article 16 of the Protocol in January to prevent vaccines made in the Union to be exported from Northern Ireland to Great Britain (a position from which it swiftly resiled).

The EU claims and the Government denies that the latter’s unilateral extension of grace periods last month is a breach of international law.  In other respects, it is fair to say that the Protocol is not so much broken as bending, with the two parties’ disagreements over its implementation still unresolved.

How much of a contributor is it to the rioting?  There is no way of determining how prominent the Protocol, and the Withdrawal Agreement that underpins it, is in the mix.  There are two other main factors: first, loyalist anger that no action will be taken against Sinn Fein politicians for attending a republican funeral.

The funeral was that of Bobby Storey, a former IRA terrorist.  The politicians who attended it included Michelle O’Neill, Northern Ireland’s Deputy First Minister.  It was clearly in breach of the Coronavirus regulations.  The second factor is police action against loyalist drug gangs, especially in South-East Antrim.

Clearly, the Protocol is an important factor, but it doesn’t follow that the current problems in Northern Ireland are integral to Brexit.  They are related to this particular form of it – and wouldn’t exist had the whole of the UK remained in the Single Market and the Customs Union.

For clarity: we didn’t and don’t support such a policy, but the point holds: it is simply wrong to claim that trouble in Northern Ireland automatically follows from leaving the EU.  So can those current difficulties be resolved?  That question takes us to the Belfast Agreement.  The Protocol sits uncomfortably with it at the very least.

Legalities first.  Part 1 (iii) of the section of the Agreement on constitutional issues says that “it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.  Putting it under a different customs code, VAT laws and regulatory arrangements to Great Britain is arguably such a change.

Next, politics. The Agreement’s legal terms are underpinned by a politial deal: in broad terms, it set out a settlement which has commanded enough consent from unionists and nationalists alike in Northern Ireland to keep the peace there.

If one or other of those communities takes exception to the Protocol, and withdraws support from the Agreement, then the latter can’t do its work.  The Combined Loyalist Military Command claims that the Protocol undermines the basis on which it agreed their 1994 ceasefire and subsequent support for the Belfast Agreement”.

You may say that loyalist paramilitaries don’t represent mainstream Unionist opinion in the province.  That is correct, but the DUP is also opposed to the Protocol, and its leadership is itself under pressure from the party’s grassroots, and from Traditional Unionist Voice.

You will add that the Government shouldn’t be pushed around by a bunch of paramilitary thugs.  We’re sorry to report that this pass was sold long ago.  Like the IRA, the CLMC was a participant in the contacts, talks and negotiations that brought about the Agreement – sometimes directly, sometimes indirectly.

“Loyalist alienation” in the aftermath of the Anglo-Irish Agreement helped to drive the paramilitary recruitment which resulted in heightened loyalist terror, the murder of more innocent Catholics – and, in part, the IRA/Sinn Fein’s push for a ceasefire and an agreement.  Will this history revive in a new form?

That may depend on how seriously the co-owners of the Protocol take its Article 1 (3), which “sets out arrangements necessary to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions.”

If there can be no hard border in the Irish Sea, no harder one on the island of Ireland itself instead, the Protocol is here to stay as an obligation on all parties, and the Belfast Agreement is to be honoured, there seems to us to be only one way of squaring the circle.

Namely, for the Protocol to be policed in the lightest manner possible.  And since it is not the only cause of the current unrest in the province, what is to be done about the others?  Some of those involved in the activity that led to the Belfast Agreement want similar activity now – such as a joint summit between the Prime Minister and the Taoiseach.

But this is to look at 2021 through the lens of 1997: it is hard to see how a big event in Northern Ireland with Micheál Martin would resassure jumpy unionists and loyalists.  There is also a limit to what Brandon Lewis can do, though he certainly needs to be on the front foot.

When it comes to policing, power lies, for better or worse, with the Policing Board and Northern Ireland’s own political institutions.  That the Assembly didn’t sit for three years after 2017, in the aftermath of the Renewable Heat Initiative scandal, has scarcely helped.

Iain Paisley and Martin McGuinness’ successors are not as strong, a new generation is growing up that doesn’t remember the drawing-up of the Agreement, and proposals agreed by all parties before 2017 haven’t been followed through effectively.

In 2015, the Executive agreed “fresh obligations on Northern Ireland’s elected representatives to work together on their shared objective of ridding society of all forms of paramilitary activity and groups”.

Two years before, it signed up to eliminating all of the socalled ‘peace walls’ by 2023; 10,000 United Youth Programme crosscommunity placements for young people; ten shared educational campuses in five years, and ten shared neighbourhood developments.

If Protocol is a matter for the UK and the EU – especially in the latter case for the Irish Government; and with the Biden administration ever-watchful in the wings – the Agreement and peace are also ones for Northern Ireland’s politicians.  Neither Johnson, Martin, nor anyone else can sustain it without them.