The Troubles, which began in 1968 and lasted until the Good Friday Agreement (GFA) in 1998, left more than 3,500 people dead. The GFA brought in a new power-sharing structure for government of N Ireland, required the decommissioning of paramilitary weapons and established a number of joint committees between the UK, N and S Ireland to ensure that any tensions or frictions between the N and S Ireland as well as between communities in the North could be quickly addressed. The GFA created the ‘all-Ireland economy’ and protected the Common Travel Area, but perhaps the most totemic and visible sign of the GFA’s success was the removal of the physical border infrastructure between N and S Ireland.

When the UK left the EU, so too did N Ireland. Once the UK was no longer in the EU, an international border between the UK and the EU on the only shared land border was inevitable. That border was the N/S Ireland frontier.

It might seem that, in order to preserve the UK’s territorial integrity, the logical location for that border would have been on the island of Ireland. Whilst that outcome might have been welcomed by Loyalists (those in N Ireland who feel they are part of the UK), it would have been rejected by the EU, Ireland, the UK and the Nationalists as it would have breached the GFA. Re-creating such a border would have risked undoing all that had been achieved in the 22 years since the Good Friday Agreement was signed.  On the other hand, locating the Border between GB and N Ireland would undermine the UK’s overall territorial integrity – something vehemently resisted by the right-wing of the Conservative Party and N Ireland’s DUP. How to square this circle was a question which bedeviled the Brexit negotiations.

In the end, the solution was a classic fudge: The N Ireland Protocol (NIP), a complex 63 page document which sets out the administrative arrangements for dealing with N Ireland after Brexit. The NIP allows N Ireland to be treated as if it had remained in the EU Single Market for trading purposes, in order to preserve the GFA (including in particular, North-South cooperation and avoiding a N/S Ireland border), the CTA and the whole of Ireland economy. But it remains in the UK for customs, legal and administrative purposes and can therefore benefit from any new trade deals the UK might sign. There will be no ‘hard’ or physical border on the land between N and S Ireland, with the border instead effectively placed ‘in’ the Irish Sea. The NIP has a four-year review clause and is governed by the EU-UK Joint Committee overseeing the overall Brexit withdrawal agreement.

The NIP agreement means that UK authorities apply EU customs rules to goods entering Northern Ireland, which entails new administrative process for traders, notably new electronic import declaration requirements, and safety and security information, for goods entering Northern Ireland from the rest of the UK. Those checks are carried out by N Irish officials at N Ireland ports of entry. Importantly, no customs duties are payable on goods moved from GB to N Ireland, unless it is judged there is a risk that those goods may subsequently find their way into the EU through S Ireland. Unfortunately, time did not permit the negotiating parties to define accurately what ‘at risk’ means, which has created problems for importers.

In an acknowledgement of the complexity of this agreement and the sensitivities of the politics that surrounded it, the NIP includes a safety-net clause – the now infamous Article 16, which effectively allows either side to impose a hard border between N and S Ireland in the event of ‘serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade’,  It was this Article that the EU invoked at the end of last week to prevent the export of vaccines from the EU, through N Ireland into the UK (see separate blog on this topic: https://www.insideeulifesciences.com/2021/01/30/eu-adopts-export-authorization-scheme-for-covid-19-vaccines-and-their-active-substances/ )

It is something of a nuclear option, which is only supposed to be used in extremis. The EU’s decision to trigger it was disproportionate and the fall-out may reverberate for many weeks to come. Already, on a political level, we have seen the DUP (who voted against the GFA and the NIP but were paradoxically in favour of Brexit) call for PM Johnson to retaliate by triggering Article 16 from the UK side as a solution to N Ireland supply issues. They have also called on PM Johnson to abandon the whole NIP.

The community-level tensions around the imposition of any sort of border in Ireland or in the Irish Sea could already be seen even before the EU’s decision last Friday. Officials working at Larne and Belfast ports were withdrawn from their duties yesterday after graffiti appeared which threatened them, calling them ‘targets’ and individuals were seen noting down their car registration details. The threat to the port officials comes from Loyalist militia groups who view the NIP as destructive to the UK’s territorial integrity and view the port officials as carrying out the duty of the EU, rather than the UK. The news that the movement of pets, soil products and the British Army are subject to additional paperwork before being able to move from GB to N Ireland has only exacerbated that perception.

From the Nationalist side, although there is no suggestion that the EU’s use of Article 16 is linked to any paramilitary threats, there is a risk that any re-imposition of a ‘hard’ border between N and S Ireland (no matter how brief) could trigger retaliatory threats from the Nationalist militia who view the border as a physical obstacle to their dream of a United Ireland.

Against this volatile political and community backdrop, companies are trying to work out how to export their goods across the N Ireland border in both directions (from GB and from the EU). The complexity of arrangements has already led to empty shelves in N Ireland supermarkets as well as a drastic reduction in number of lorries using the Ireland – UK land route to the EU market. And with the expiry of the grace period at the beginning of April, additional checks on meat and dairy products moving from GB to Northern Ireland will further complicate this trade.

In a recognition that the current state of affairs cannot continue, the EU, UK and Irish Governments are meeting today to try and find a way to make the NIP function more smoothly. It may be that a longer grace period will result which will allow time for ‘at risk’ goods to be defined and for customs and paperwork controls to bed down more effectively. However, the NIP itself will not be renegotiated. As the only way to square the circle of where to put the UK/EU land border, without re-creating a hard border between N and S Ireland, the NIP is an enduring reality of Brexit that companies will need to learn to work with.

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Photo of Thomas Reilly Thomas Reilly

Ambassador Thomas Reilly, Covington’s Head of UK Public Policy and a key member of the firm’s Global Problem Solving Group and Brexit Task Force, draws on over 20 years of diplomatic and commercial roles to advise clients on their strategic business objectives.

Ambassador…

Ambassador Thomas Reilly, Covington’s Head of UK Public Policy and a key member of the firm’s Global Problem Solving Group and Brexit Task Force, draws on over 20 years of diplomatic and commercial roles to advise clients on their strategic business objectives.

Ambassador Reilly was most recently British Ambassador to Morocco between 2017 and 2020, and prior to this, the Senior Advisor on International Government Relations & Regulatory Affairs and Head of Government Relations at Royal Dutch Shell between 2012 and 2017. His former roles with the Foreign and Commonwealth Office included British Ambassador Morocco & Mauritania (2017-2018), Deputy Head of Mission at the British Embassy in Egypt (2010-2012), Deputy Head of the Climate Change & Energy Department (2007-2009), and Deputy Head of the Counter Terrorism Department (2005-2007). He has lived or worked in a number of countries including Jordan, Kuwait, Yemen, Libya, Iraq, Saudi Arabia, Bahrain, and Argentina.

At Covington, Ambassador Reilly works closely with our global team of lawyers and investigators as well as over 100 former diplomats and senior government officials, with significant depth of experience in dealing with the types of complex problems that involve both legal and governmental institutions.

Ambassador Reilly started his career as a solicitor specialising in EU and commercial law but no longer practices as a solicitor.