The Northern Ireland Protocol saga nears completion – but unionists won’t like the ending.
The best way to think about the Northern Ireland Protocol is to imagine an author going back to change the ending to their story – long after the book went to print.
Not only that, but they aren’t sure what they want the finale to be. They mess everyone around with endless redrafts, as their patient publisher slowly grinds their teeth to fine dust.
Back in 2020, Boris Johnson agreed to the protocol as a post-Brexit mechanism that avoided a hard border across the island of Ireland, by imposing checks at Northern Ireland’s ports on goods coming from Great Britain.
Given Northern Ireland shares a land border with an EU member state – and the Europeans like their grub so take food security seriously - there needs to be inspections in case dodgy produce finds its way into the single market.
The problem is that the Europeans don’t trust the British government. Not after it unilaterally reneged on commitments to manage the protocol, under pressure from hardline unionists and Tory backbenchers who both hate the idea of Northern Ireland being treated separately to the rest of the UK.
The European Commission’s vice-president, Maroš Šefčovič, a saintly Slovak diplomat, has since displayed the patience of Job in dealing with three prevaricating British Premiers in Johnson, Truss and now Sunak, who are looking to change the agreement they freely signed up to as the UK left the EU.
All of which is to say that some important developments took place last week.
First, there are signals that a deal between the British government and EU is steadily emerging, according to RTÉ’s Europe editor, Tony Connolly. EU negotiators are prepared to accept a red and green lane system – allowing goods destined for Northern Ireland to have unimpeded access, with checks focused on cargo that is set to cross the border.
It’s talked-up as a breakthrough moment and a big concession by the EU. But the Commission proposed the same thing back in October 2021 as part of a package of measures to bridge the impasse.
British ministers know this, but they also recognise there is limited scope to extract anything much better at this stage. This is all now a matter of presenting modest gains as a historic victory.
So ministers have quietly passed secondary legislation in Parliament allowing for the construction of infrastructure at Northern Ireland’s ports. It will expect the Executive to manage this process but will be legally bound to do it if there is no restoration of power-sharing.
The government is also accused by unionists of soft-pedalling over its protocol bill. The proposed legislation – which is designed to unilaterally rip-up parts of the deal - is currently beached in the House of Lords, pending the outcome of the current negotiations.
Dreamt up by Boris Johnson and Liz Truss as a show of defiance, the bill is now an embarrassment to Sunak. More practical and reasonable than his predecessors, he knows he dare not risk proceeding with it and sending out mixed messages to the EU while big stakes negotiations with Šefčovič reach a critical phase.
Finally, a group of prominent unionists including Arlene Foster, Kate Hoey and TUV leader, Jim Allister, were heavily defeated in the British Supreme Court last week after challenging the protocol’s legality. It was an indulgent move, having already foundered in the High Court. Inadvertently, they have confirmed that the protocol is entirely legal and proper.
It all means two things. First, the government is going to do a deal with the EU in the next few weeks come what may, but this will see the protocol revised, not scrapped.
The second, is that a lot of unionist hardliners won’t like this outcome. All political disagreements eventually lead to a negotiated deal, but the ‘No Surrender’ anti-protocolistas hold enormous sway over the DUP.
The question is whether Jeffrey Donaldson can – or will – jettison them and lead his party back into government ahead of the symbolic 25th anniversary of the Good Friday Agreement in April.
The pressure on him to do so will become intense – with most of it coming from Downing Street.
Expect to hear talk of changing the rules at Stormont to support the other parties that are willing to get things back up and running. Or even mention of a greater role for the Irish government in the affairs of Northern Ireland as a threat to get the DUP to play ball.
This will be a bumpy few weeks but eventually a deal on the Northern Ireland Protocol will be done.
Kevin Meagher is author of A United Ireland: Why Unification is Inevitable and How it will Come About and What A Bloody Awful Country: Northern Ireland’s Century of Division