Katy Hayward and David Phinnemore set out what will be necessary if any UK-EU agreement on the Northern Ireland Protocol is to have lasting legitimacy in Northern Ireland.
However difficult it will be for the UK and EU negotiators to find agreement over the Protocol on Ireland/Northern Ireland, the hardest part comes afterwards. The European Commission has 27 member-states and the European Parliament to keep on board. The UK government has its hardline ERG backbenchers to assuage. It would be easy for both to lose sight of their toughest and most important audience: Northern Ireland. To do so would be to repeat a mistake made too often already.
In December 2017, Prime Minister May was infamously halted on the brink of agreeing the UK-EU ‘Joint Report’ by a phone call with Arlene Foster. In November 2018, the Protocol was announced as part of the Withdrawal Agreement subsequently rejected by the House of Commons. In October 2019, the revised Protocol negotiated by Prime Minister Johnson was approved overwhelmingly by his party despite the objections of all parties in the Northern Ireland Assembly. And, in December 2020, arrangements for implementing the Protocol (including grace periods) were decided despite their inadequacy compared to the stated needs of business.
There is a pattern here.
A tempest brews as the UK and EU find themselves at loggerheads over what should happen over the Protocol. They agree to talk. They eventually go into a tunnel and (to mutual relief) arrive at a deal. But coming to an agreement is one thing; making it last is quite another.
Although there can be no guarantees here, we can at least identify what doesn’t work. And the UK-EU routine hasn’t got a great track record in terms of the outcome’s durability on the ground in Northern Ireland.
What could make the difference? The most recent joint statement from the UK and the EU said that their scoping for potential solutions should continue ‘taking careful account of each other’s legitimate interests’. The two sides need to somehow translate their legitimate interests into legitimate solutions for Northern Ireland.
Without legitimacy, the post-Brexit arrangements will be a hard sell to the population of Northern Ireland and their MLAs (who, lest we forget, will be asked to give their ‘democratic consent’ to key parts of the Protocol in an Assembly vote in late 2024).
Legitimacy is distinct from the principles of consent and democracy. It entails acceptance of legal authority and a willingness to follow its precepts. It follows that, without a sense of legitimacy from communities in Northern Ireland, any UK-EU agreement on the Protocol is unlikely to bring the post-Brexit stability and certainty that is long overdue.
Legitimacy can take at least three forms. ‘Input’ legitimacy comes from participation in decision-making, i.e. who is involved. ‘Throughput’ legitimacy is about the process of decision-making, i.e. how problems are solved. Finally, ‘output’ legitimacy is judged by performance, i.e. what the outcomes are.
Input, throughput and output legitimacy are all important for the Protocol because a UK-EU deal is just the beginning. The effects of the Protocol will change as the UK and EU evolve, and Northern Ireland has to navigate the consequences. The hoped-for UK-EU deal on the Protocol is intended to help it do so. But to have any chance of stability and certainty into the medium term, steps need to be taken now to secure its legitimacy.
The first step is with UK and EU agreement on: (i) the distinctive position of Northern Ireland, in and between both internal markets; (ii) the relative priority of key issues to be addressed in the Protocol; and (iii) mutually-recognised principles and elements for joint solutions. UK and EU officials are ‘scoping’ the last of these now. If found, they need to be stated jointly, publicly and unambiguously. Such solid, shared ground is essential for increasing legitimacy for what comes next.
The second step needs to come in the structured involvement of Northern Ireland stakeholders in UK-EU talks. Any ‘take it or leave it’ deal is unlikely to secure legitimacy. We are not asking for veto, but a clear process for input from key business, civic, and political stakeholders, even merely to test the ‘viability’ of possible outcomes.
At present, having made their needs known, stakeholders in Northern Ireland are in the dark about how the UK and the EU see these needs being addressed. But it is these stakeholders who will be expected to implement and manage the consequences of a deal.
The third step is the most important. It is future-oriented. It requires the UK and EU to establish clear structures and processes for Northern Ireland stakeholders to engage meaningfully in ongoing problem-solving in the implementation of agreed arrangements. The business community ask for this in their request for ‘representation’. The DUP, as well as the other Northern Ireland parties, seek it in their demand ‘to give the people of NI a say’.
Home-grown proposals as to how this might happen have been developed. The European Commission has outlined means to enhance direct dialogue with stakeholders in Northern Ireland. And the European Economic and Social Committee has pointed to the benefits of such engagement. Structures and processes also need to be developed to allow representative and expert views across Northern Ireland to meaningfully inform the UK government’s position in its dealings with the EU. Such arrangements should be a critical component of any UK-EU reset over the Protocol.
If these three steps are taken, an opportunity exists to move the Protocol on from being a set of UK-EU arrangements decided for Northern Ireland to being a process of UK and EU working with it. Only thus could Northern Ireland become a partner in solving problems rather than continuing to be a seemingly never-ending source of them.
This piece was originally published on the Queen’s University Belfast Policy Engagement website, and can be accessed here.