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Northern Ireland: A pawn in the new waiting game

Published: 17 June 2022

Lisa Claire Whitten, Research Fellow at Queen's University Belfast and the Post-Brexit Governance NI project, reacts to the latest developments around the Northern Ireland Protocol, writing that Northern Ireland finds itself at the centre of a new UK-EU waiting game.

Author: Lisa Claire Whitten

Another chapter in the ongoing saga of Brexit, Northern Ireland, and the Protocol, has begun.

On Monday, the UK government introduced controversial new legislation that, if enacted, would see key elements of the Protocol on Ireland / Northern Ireland – that bespoke set of arrangements agreed to by the UK and the EU as a means of addressing the “unique circumstances on the island of Ireland” in the context of Brexit – disapplied in domestic law.

As drafted, the Northern Ireland Protocol Bill (NIP Bill) removes the legal effect of Articles in the Protocol that deal with trade in goods, and which were designed to enable frictionless trade to continue ‘North-South’ on the island of Ireland but come with a ‘catch-22’ requirement for increased checks and controls on goods moving ‘East-West’ from Great Britain to Northern Ireland (GB-NI). Additionally, the NIP Bill ‘turns off’ in UK law provisions in the Protocol for the continued jurisdiction of the CJEU in respect of Northern Ireland, and grants extremely wide-ranging discretionary powers to UK central government Ministers to make law in areas currently covered by the Protocol or related to it.

After passing its first reading in Westminster this week, the NIP Bill is now set to make its (anticipated slow) passage through parliament; it is very unlikely to emerge unchanged. Expect strong opposition and much debate in both the Lords and the Commons about the Bill’s unconventional (and highly questionable) approach to the upholding of international law obligations and the possible implications of the precedent it proposes to set. The parliamentary process for the NIP Bill could last up to 18 months.

New legal action from the EU

In response to the UK government’s introduction of its new legislation, the EU has launched and relaunched infringement proceedings against its would-be partners in implementing the Protocol. There are now three EU legal cases against the UK concerning, respectively, the unilateral extension of a ‘grace period’ for certification requirements on agri-food goods moving from GB-NI in March 2021, failure to carry out necessary sanitary and phytosanitary (SPS) controls on goods entering Northern Ireland, and failure to provide the EU with adequate trade statistics data.

The resolution of EU infringement proceedings such as these can take years.

On the ground Northern Ireland

Leaving aside, for now, the legitimacy or otherwise (definitely otherwise) of the UK Government’s approach to managing its disagreement with the EU over the operation of the Protocol, the implications of developments this week for people on the ground in Northern Ireland are not good.

At present, Northern Ireland does not have a fully functioning government. Following recent elections, the Democratic Unionist Party (DUP) have blocked attempts to reform the devolved Assembly and Executive in protest over the Protocol. Although the UK Government purport to want to see the devolved institutions back up and running, it also cites the fact that “the Protocol currently stands as a barrier to forming a new Executive in Northern Ireland” as part of its legal justification for introducing the NIP Bill. Arguably, this language supports the DUP position, at least implicitly.

The impact of 'political stalemate'

This, in turn, begs the question – what does this latest UK Government move, and EU response actually do to address the (apparent) “state of necessity” in Northern Ireland? The answer: it hinders rather than helps.

Northern Ireland today is facing major public policy challenges. The health service is in serious need of reform with waiting lists so long they are immoral and emergency response times that are putting lives at risk. At the same time, the cost-of-living crisis is hitting hard and only set to get worse. Although ‘care-taker’ Departmental Ministers remain in place, their ability to take decisive action is limited and measures to support vulnerable people are difficult to enact because of the political stalemate.

The processes begun this week – parliamentary on the part of the UK and judicial on the part of the EU – will take time, but this is time that Northern Ireland cannot afford. It needs a government and politicians willing to form one, instead, it finds itself at the centre of a new UK-EU waiting game; it is a game that Northern Ireland is losing.

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Lisa Claire Whitten is Research Fellow at Queen's University Belfast's School of History, Anthropology, Philosophy and Politics, on the Post-Brexit Governance NI project. She tweets at @LisaClaireWhit1.

Image by maddock1238 from Pixabay 

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