Discussion around the Protocol has tended to focus on the desired outcomes, but rather less attention has been paid to the process to get to outcomes.
In political talks in Northern Ireland leading up to the Good Friday Agreement, and subsequent agreements, the advice to ministers used to be that the process was as important, if not more so, than the outcome. A process which engages the key stakeholders enables them to take ownership of the outcome, rather than feel it is imposed from outside. And where – as in Northern Ireland – there are fundamental clashes of political view and ambition, it enables the protagonists to discuss and confront these issues directly, and possibly find ways of reaching compromise, away from publicity.
The process around the Protocol has been fundamentally flawed because the key players who need to accept and work with the outcome – the parties in Northern Ireland – have never properly been involved. The UK government has involved them in cursory consultation at best, and usually as parties to be brought on board – if at all – after the event. The Democratic Unionist Party (DUP) has appeared to have privileged access at times – under the confidence and supply agreement with Theresa May, for example, or in the development of the current Northern Ireland Protocol Bill. But even the DUP have appeared to be blindsided at times – not least by Boris Johnson in agreeing the Northern Ireland Protocol.
The collapse of the Northern Ireland Executive from 2017-2020 scarcely helped. But the experience of the Scottish and Welsh governments, both keen to be involved, was that the UK government was not interested in genuine engagement – not least because it had serious problems resolving its own position internally. Even a functioning Northern Ireland Executive would have fared little better.
The process of Brexit negotiations treated the issue of Northern Ireland as largely an intergovernmental issue, and fundamentally about technocratic issues over borders, markets and customs. The parties were largely external players to be quoted in support of arguments advanced by the UK or the EU. So they inevitably have no sense of ownership of the outcome. And the failure adequately to recognise the political issues and principles the various parties in Northern Ireland bring to the table, and which need to be taken into account, further undermines support for the outcome.
We end up with a contested outcome – the Northern Ireland Protocol – which may or may not work well in a practical and technocratic sense, but is being cited as the reason for the current collapse of the power sharing institutions in Northern Ireland. This inevitably follows from the flawed process.
So the path to a solution needs to start with a better process. That is one which directly involves the key players most directly affected – the parties in Northern Ireland – as well as the UK government and EU, whose assent is also essential. In this respect it has significant similarities with the process leading up to the Good Friday Agreement, in which international chairs also had an important part to play.
That process itself required careful construction, to recognise the different participants’ different roles and views. There were three strands – dealing respectively with relationships within Northern Ireland, between North and South, and covering the totality of relationships across the islands. Each strand had different participants, but nothing was agreed in one strand until everything was agreed across all strands. International chairs had a role.
A better process needs to recognise that, at its core, Brexit and the Protocol engage the fundamental political issues at the heart of the conflicting visions of unionism and nationalism in Northern Ireland. One which prioritises the relationship with the rest of the United Kingdom, and one which prioritises the relationship with the rest of the island of Ireland and thus the EU.
The Good Friday Agreement was not just about creating efficient government – many will argue it created inefficient government – but about creating a system of government which balanced, reflected and respected the differing political visions and aspirations of unionism and nationalism – a system of government which secured broad assent, and thus legitimacy, across the community.
So too any process seeking to amend or replace the Protocol, and to secure effective implementation, needs to find a way of balancing these differing political visions, even at the cost of some technocratic flaws, if it is to secure wider support than the current Protocol.
The Good Friday Agreement involved innovative solutions that challenged constitutional and legislative rigidities in both Ireland and the UK. In the same way, any solution to the Protocol is likely to require flexibility from both the EU and the UK to find and implement a solution that is unique to Northern Ireland and does not necessarily draw on any precedent or process elsewhere.
A better process should involve the Northern Ireland parties as core participants alongside the UK government and the EU. Exclusively bilateral negotiations which keep out the representatives of the people of Northern Ireland will not deliver an outcome which is owned within Northern Ireland.
However sensible, any outcome from such a narrow process risks being seen as an external solution imposed on Northern Ireland. There is even less prospect of lasting stability and success with any solution imposed unilaterally by the UK government. The UK government and the EU remain central players but they need to recognise they cannot secure the wider consent needed without the full involvement of the Northern Ireland parties.
The obvious objection to this is that it is a counsel of perfection. If the UK and the EU cannot agree, what prospect is there of the many and disparate parties of Northern Ireland helping? But that was said before the Good Friday Agreement. When negotiations reach stalemate – as they have now between the UK and the EU – often progress can be found by widening the process.
And the alternative – a solution which is not owned by the parties in Northern Ireland – is inevitably unstable, as the Northern Ireland Protocol has proved. It may take time but in the end there is no alternative to finding a solution which commands broad acceptance across Northern Ireland.
By Sir Jonathan Stephens, former Permanent Secretary at the Northern Ireland Office from 2014-2020.
Sir Jonathan was closely involved as an official in the Northern Ireland peace process in the run-up to the Good Friday Agreement.