The Northern Ireland Protocol: a short history of a diplomatic mess made in Number 10

The Protocol was negotiated in late 2019 to replace the so-called “Backstop” agreed by Theresa May which, in order to avoid a border on the island of Ireland, would have kept the whole of the UK in the EU Customs Union. On the UK side, with Boris Johnson newly installed in Downing Street, the protocol, we are now told, was accepted in the knowledge that it was unworkable but that it would “get Brexit done”. 

Believing it to be no more than a temporary inconvenience that they could subsequently discard, Johnson agreed to the protocol as an integral part of the UK’s international trade and cooperation treaty with the EU, hailing it, together with the leaders of the Democratic Unionist Party, as the answer to a previously intractable problem. Johnson’s negotiator David Frost did warn it was a problem, privately. Johnson made the decision.

Once the deal was delivered, the UK demanded that, in effect, the Protocol should forthwith be dismantled, regardless of the fact that this would mean the restoration of a trade border between North and South in Ireland – the very thing the Protocol was designed to prevent.

Frost, now elevated to the House of Lords, said the real stumbling block was the role of the unelected European Court of Justice, an impediment that Johnson, nor the DUP, had previously raised as a consequential issue, still less a deal-breaker. 

In the meantime, NI exporters said that the Protocol was working just fine, giving them, uniquely, free access to both the UK and EU markets. Exports from NI to the Republic and the rest of the EU boomed. 

Citing the difficulties of exporting goods to Northern Ireland, some 200 GB-based companies either ceased trading with NI or else reduced what was available to a minimum.

When, in response, the EU proposed significant concessions on checks and paperwork – and sausages – the UK said much more remained to be done. Restrictions on medicines were now the issue. These had to go or the deal was off.

The EU next proposed a derogation from its standard medicines policy that would allow NI to import UK medicines without restriction. Frost was not impressed. He repeated his claim that the real issue was the role of the European Court of Justice. If this didn’t go, Article 16 (total breakdown) was the only way forward.

Brussels warned that the role of the ECJ was not up for discussion and that if the UK persisted with its demand, the whole deal would collapse, with serious implications for trade between Britain and Europe.

Boris Johnson thought about this and let it be known via officials (though he did not actually say so) that the ECJ could in fact have a final say on matters concerning the Single Market, of which, under the terms of the Protocol, NI remains a part.

Frost resigned, complaining of the government’s overall direction of travel, leaving it to the foreign secretary, Liz Truss, to rescue the package in Britain’s favour.

Looking ahead, in January, what’s likely? , Will Liz Truss, dressed as Margaret Thatcher, declare “No! No! No!”? Or in a few months will she sign the amended Protocol on behalf of the British government?

In June, following the Stormont elections, expect the Northern Ireland Assembly, in which avowedly Unionist members are in a minority, to vote to endorse the Protocol. The DUP’s leader, Jeffrey Donaldson, will walk out and then in again.

In London, where Boris Johnson continues in full crisis mode, the protocol is never mentioned again.