Government must remember protocol is only a means to an end not an end in itself says Professor Ronan McCrea (UCL Laws).
In 2007, when Nancy Pelosi was in her first stint as House Speaker, I worked on a campaign an NGO was running in relation to a Bill then before Congress.
The NGO had numerous concerns about the legislation and, through a mix of networking and luck, a senior figure in the organisation managed to wangle a 10-minute meeting with the Speaker.
This caused an anguished debate among staff. Some experienced negotiators pushed to ask for one and only one thing but in the end couldn’t agree which objectives to let fall by the wayside.
At the meeting, I was later told, Pelosi’s eyes glazed over when she was presented with a laundry list of desires and she ultimately offered no support.
The Irish Government was too canny to make a similar mistake in relation to Brexit. Instead of presenting a generalised list of the many threats such a fundamental constitutional change posed to the peace process, the Government went to its EU partners with a concrete political ask.
That ask was that Brexit would not involve the emergence of physical infrastructure on the Border between North and South. This was to be achieved by keeping Northern Ireland in the EU Single Market for the purposes of goods and customs.
With a clear objective to rally behind, EU member states backed Ireland and ensured that the final Brexit deal included the Northern Ireland Protocol which avoided customs checks or checks on goods on the island of Ireland.
However, there were risks for the Government in focusing so heavily on the issue of Border infrastructure. At the time, some worried that by having an absolutist approach we risked weakening moderate figures in the UK government and could end up with a harder Brexit involving other forms of distancing between the Republic and the North that could ultimately be more disruptive.
The risk of this outcome coming to pass has risen significantly this week. The UK government’s Nationality and Borders Bill which is on its way through parliament will require non-UK and non-Irish nationals to obtain online authorisation before travelling from the Republic into the North.
While northern secretary Brandon Lewis has said there will be no controls on the Border, if there is a legal requirement on individuals to apply for permission to enter the North some checks that that requirement is being fulfilled are inevitable.
The Government and others complain that these proposals are unnecessary and go against the spirit of the UK-EU deal. However, legally, the protocol prevents only checks on goods - it does not affect the power of the UK to control movement of people across its borders.
By exercising this power in relation to the Irish Border, the UK government may be attempting to place pressure on the EU to make concessions in relation to the operation of the protocol.
So what should Dublin do if the UK plays hardball and uses its powers to create a border between North and South in relation to free movement of people that is as - or more - disruptive than the border for customs and goods prevented by the protocol?
The Government has, for understandable reasons, stressed the difficulties that customs posts on the Border would bring, not least that they would attract paramilitary activity. At the same time, one must always be alert to the danger of being convinced by your own rhetoric. The protocol is not an end in itself but a means to an end of stabilising the peace process by mitigating the impact of Brexit on nationalists in the North.
Government statements to the effect that it would never put up infrastructure on the Border even if this cost Ireland its membership of the single market are understandable as a negotiating tactic but would represent a loss of perspective if followed through.
Avoidance of customs posts on the Border was the form of Brexit mitigation chosen by the Government but it was not the only possible form. It was discrimination not customs posts that caused the Troubles to erupt in the 1960s. If the current settlement proves unworkable and other forms of mitigation were offered then they should not be rejected out of hand.
That said, it is hard to see any practical or principled reasons for the British government’s approach. Even if its hardball tactics got the EU to drop the protocol, then what?
The need to mitigate the impact of Brexit on northern nationalists would remain. Tortuous, destabilising negotiations that would involve the same trade-offs we saw in 2019 between a hard Brexit, the need to mitigate the distancing from the Republic that such a Brexit involves and the desire of unionists to avoid different treatment of Northern Ireland and Great Britain would be unavoidable.
Moreover, the UK government has spent a year arguing that, under the protocol, there should be no checks on goods entering Northern Ireland from Great Britain unless there was a very significant risk that those goods would continue on into the EU single market. It takes some chutzpah to now argue that prior authorisation should be needed for Polish residents of Dundalk wanting to go to the supermarket in Newry when the chances that they would continue on to Great Britain are minimal.
The best option is clearly for both sides to operate the agreement they reached in 2019 in good faith. However, if the UK government refuses to do so, the Irish Government must keep some perspective and remember that the protocol is a means to an end, not an end in itself.
This article first appeared in The Irish Times on 24th march 2022.