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Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: Follow-up report Contents

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Chapter 4: The political impact of the Protocol

Political perspectives on the Protocol

218.In our July 2021 introductory report, we concluded that “there is no doubt that Brexit and the Protocol have had a destabilising effect on the political situation in Northern Ireland and on community relations.”202 We took evidence from a range of witnesses to understand how the political situation has subsequently evolved over the past year. This chapter outlines the evidence put to us. This outline is without prejudice to the views of individual members on the Protocol, and to our task as a Committee not to argue for or against the Protocol itself, but rather to scrutinise its operation and impact in an objective and evidence-based manner. We therefore do not seek to draw conclusions on the strength or validity of the arguments put to us.

219.Subsequent to the May 2022 Northern Ireland Assembly elections, we took evidence from each of the five largest political parties in the Assembly. This confirmed the sharp divisions in view on the Protocol between Sinn Féin, the Alliance Party and the SDLP, on the one hand, and the Democratic Unionist Party and the Ulster Unionist Party on the other.

220.Declan Kearney MLA, representing Sinn Féin, told us:

“Our position fundamentally stems from our opposition to Brexit. We believe that, were there in fact no Brexit, there would be no need for the Protocol. The democratic majority in the north of Ireland in 2016 voted to remain within the EU. Our own party campaigned against that position being adopted. We forecast at the time that Brexit would be a catastrophe not only for the people in the north of Ireland but for the island economy overall. … I would much rather that there was no Brexit. As a consequence, I would much rather that there was no need for a Protocol, but it is our party’s very firm view that the Protocol is not only an integral part of an international agreement that has now been struck and, therefore, must be accepted and complied with, but the only and the best way to mitigate the worst effects of Brexit for people living in the north of Ireland and across the island in its entirety.”203

221.Matthew O’Toole MLA, representing the SDLP, said that “the framing of the debate on the Protocol” had been “constructed around the notion that the Protocol itself is sui generis, as if it was dropped from the sky on the UK out of nowhere.” He argued, on the contrary:

“The Protocol is not just a product of Brexit … it is inextricably linked to Brexit. To the extent that the Protocol is a problem, the problem is Brexit, specifically hard Brexit; that is, the decision by the UK to leave both the Single Market and the customs union. … We need the Protocol not just because it offers protections from the creation of a hard border in goods … but because it offers the unique economic advantage of dual market access, from which we are already benefiting as data shows, but for which the constant threats and destabilisation are damaging that potential investment.”204

222.Sorcha Eastwood MLA, representing the Alliance Party, argued that:

“What we are seeing reflected in our politics across and between these islands is the fallout of Brexit. … It is clear that the Protocol exists as a means to manage the outworkings of a hard Brexit and what that entails in practical terms. We would not have one without the other, and that is a point that bears repeating. However, since January 2021, Alliance has been proactive in seeking to put forward solutions. You could perhaps best characterise our approach as that of Protocol pragmatists or Protocol realists.”205

223.These views were echoed by HE Adrian O’Neill, Ambassador of Ireland to the United Kingdom, who set out the Irish Government’s view:

“It is Brexit, and specifically the type of Brexit chosen by the British Government, which creates many of the challenges being faced in Northern Ireland today. The Protocol sought to accommodate those choices and respond to the challenges arising. It is still the only agreed EU-UK solution that protects the Good Friday Agreement and mitigates the consequences of a hard Brexit for Northern Ireland and the whole island of Ireland.”206

224.Doug Beattie MLA, Leader of the Ulster Unionist Party, said that his party had opposed Brexit because they thought it would be destabilising for Northern Ireland and for the Belfast/Good Friday Agreement: “If we did not support Brexit, we certainly did not support the Protocol. The Protocol is not working. … It is a bad deal, and it is simply not going to work.” This was because, in his view, it had unbalanced the Belfast/Good Friday Agreement by imposing a “border down the Irish Sea”. However, he acknowledged that there needed to be some form of treaty between the UK and the EU governing the issues around Northern Ireland and the frontier between the UK and the EU.207

225.Sir Jeffrey Donaldson MP, Leader of the Democratic Unionist Party, said:

“We have consistently opposed the Protocol from the moment it was agreed between the UK Government and the European Union. We believe that the Protocol threatens our place in the United Kingdom. It endangers jobs for our people, drives up costs for consumers and reduces choice on our supermarket shelves. It is costing hundreds of millions of pounds to the Northern Ireland economy every year. … The Irish Sea border has eroded the unified internal market of the United Kingdom and, indeed, has undermined the union itself. The union is not just a political union; it is an economic union. Article 6 of the Acts of Union states very clearly that there should be no barriers to trade between the constituent parts of the United Kingdom. … It has harmed the very delicate constitutional balances at the heart of the Belfast Agreement. It undermines the cross-community consensus that is essential for the Agreement and political institutions to operate.”208

226.These divergent perspectives on the Protocol also characterise attitudes towards its political impact, as we explore below.

Public attitudes towards the Protocol

227.Witnesses stressing the necessity of the Protocol argued that a growing number (or even a majority) of people in Northern Ireland either supported the Protocol, or at least were willing to accept it as a necessity in the light of Brexit. Ambassador O’Neill cited the Northern Ireland Life and Times Survey and Queen’s University Belfast’s Testing the Temperature surveys as suggesting that the numbers who regarded the Protocol as on balance “a good thing” for Northern Ireland were increasing.209

228.Matthew O’Toole likewise pointed to these surveys as indicating a “small but appreciable majority in favour of the Protocol being implemented, yes, in a way that works and is as practicable as possible, but that there is still an anti-Brexit majority in Northern Ireland.”210 Professor Monica McWilliams, Co-founder of the Northern Ireland Women’s Coalition and former Chief Commissioner of the Northern Ireland Human Rights Commission, and Emma DeSouza, human rights campaigner and writer, Coordinator at the National Women’s Council of Ireland and Chairperson of the All-island Women’s Forum211, also drew attention to the same polling, which they said suggested that 63% of respondents agreed that the Protocol provides Northern Ireland with “a unique set of post-Brexit opportunities compared to the rest of the UK which if exploited could benefit Northern Ireland.”212

229.Ambassador O’Neill argued that the Assembly election results, which saw a majority of MLAs (53 out of 90) elected who were in favour of the Protocol, were proof of this.213 Declan Kearney likewise said that:

“The majority of MLAs who have been returned as a result of the recent Assembly election are politicians who have a very pragmatic or, indeed, supportive view of the Protocol itself. Therefore, the people have spoken once again in the north of Ireland. We registered a majority opposing the imposition of Brexit. Successive debates within the Assembly have demonstrated a majority view there that we need to ensure a smooth implementation of the Protocol and remove this issue as a source of contention within our political process. Now, in quite a resounding way, as a result of the Assembly election, we see the majority of parties represented in the Assembly and the greater number of MLAs adopting a pragmatic Protocol position or a pro-Protocol position.”214

230.Mr Kearney, Mr O’Toole and Sorcha Eastwood, as well as Professor Monica McWilliams and Emma DeSouza, all asserted that the Protocol was not a dominant issue on the doorstep during the election campaign, compared to wider issues with the economy and healthcare. Ms Eastwood argued that “the vast majority of people in Northern Ireland want stability and a level of certainty in which to operate.”215

231.On the other hand, those expressing deepest concerns about the Protocol underlined its politically divisive impact, and the lack of cross-community consensus for its operation. Doug Beattie said:

“Societal division is getting worse … We have come an awful long way since the Belfast Agreement and communities have been coming together, but they are slowly being driven apart. There is a small wedge being pushed between them, which is expanding each time because of the Protocol.”216

232.Sir Jeffrey Donaldson said:

“Not a single unionist MLA elected to the Northern Ireland Assembly in May this year supports the Protocol—not one. Over 40% of the seats in the Northern Ireland Assembly are held by unionists opposing the Protocol. … An opinion poll published earlier this week indicates very clearly that over 75% of unionists believe that the unionist parties should not re-enter a power-sharing Executive until the Protocol is being dealt with decisively. The Protocol has polarised opinion in Northern Ireland, and that is unhelpful when you have to operate political institutions on the basis of consensus. The more the community is polarised, the more difficult it is to achieve that consensus.”217

233.Victoria Hewson, Head of Regulatory Affairs, Institute of Regulatory Affairs, stressed that “any negotiated solution that does not respect Northern Ireland’s place in the UK’s legal order and internal market will continue to be unstable and undermine the Belfast Agreement.”218

234.The then Minister for Europe and North America, Rt Hon James Cleverly MP, characterised the situation as follows:

“Communities in Northern Ireland can see that the relationship as structured through the Protocol, the relationship between Northern Ireland and Ireland, particularly when it comes to business and the flow of goods, is working well. In contrast, the practical relationship, the business relationship, the flow of goods between Northern Ireland and GB, between two parts of the UK, is not working as well as between Northern Ireland and Ireland. That is visible and that is causing tensions. … While there is such a visible differential between north-south and east-west, there are tensions that need to be resolved.”219

Attitudes towards community concerns

235.There were divergent views among our witnesses regarding the scale and validity of unionist concerns over the Protocol. Matthew O’Toole said that he acknowledged the sincere objections of many unionists to the Protocol, but argued that the severity of the discontent was “significantly smaller” than had been portrayed: “I do not see mass disruption on the streets of Northern Ireland, to be honest. There have clearly been demonstrations of a scale.”220 He also argued that “there is, within moderate unionism, a degree of pragmatism and subtlety that comes out from the research that has been done.” He “absolutely” wished that more unionists were comfortable with the Protocol, but was concerned about “the idea that we can solve everything by upending the Protocol because of one group”.221

236.Sorcha Eastwood said that “Brexit has profoundly created shockwaves across and between these islands and is making people question their own identity. … We are now seeing the outworkings of that, and it is extremely complex.” She acknowledged the legitimate concerns of those in the unionist community who viewed the Protocol as a threat to their identity, and “are feeling a deep hurt and a deep frustration”.222 However, she also argued that there were unionists who “feel that some of the rhetoric coming from elected unionism is not chiming with what their view would be.”223

237.Declan Kearney accused the Government and the DUP of conflating:

“the issue of the Protocol with constitutional and political issues that do not in fact apply and have no relevance to the current situation. They have quite consciously created a distraction by raising those issues. In the process, they have, within some sections of society here in the north, weaponised the Protocol … [and are] actively trying to manufacture a crisis that should not exist in the first place.”224

238.Professor Monica McWilliams and Emma DeSouza acknowledged that:

“There are valid concerns being expressed from within the unionist community, that do not diverge greatly with the concerns voiced by the nationalist community, who largely voted against any form of Brexit. Both communities have been impacted negatively by the UK’s decision to leave the European Union with concerns over a democratic deficit in Northern Ireland growing.”225

239.The Human Rights Consortium argued that:

“It is perhaps understandable that sections of our community who value Northern Ireland’s place within the United Kingdom are upset at the placement of regulatory checks for goods moving from GB to NI. However, concerns about these provisions affecting Northern Ireland’s place within the union are more perceptual, rather than practical. There was already a level of checks on certain goods moving between GB and NI before the UK’s exit from the EU.”226

240.However, the leaders of the main unionist parties underscored the deep impact of the Protocol on the unionist community. Doug Beattie said:

“The Protocol is deeply disheartening for the unionist communities—not all of course; there are unionists who will support the Protocol. I do not pretend to speak for all, but there are large swathes of unionism for which the Protocol is deeply damaging. They feel that their identity is under threat. … The nationalist community—but not all nationalists, of course—is saying, “Let’s just get on and make Northern Ireland work”. That is driving the two communities apart, so we are having genuine problems in regard to this. … My big fear is that … if people are not moving and trying to fix the problems we have in Northern Ireland, those frustrations could come to the boil. I have said this to everybody who is willing to listen to me: it does not take much to go from a brick to a stone to a petrol bomb to a bullet to a coffin. It does not take long in Northern Ireland; those who know Northern Ireland will know it does not take long.”227

241.Sir Jeffrey Donaldson said:

“Both the EU and Irish Government are blind to this particular issue that, for unionists, … it is also about our sense of citizenship and belonging to the country of which we are citizens. It undermines our rights under the economic and political union we are part of. The EU’s proposals do not even scratch the surface of those problems. … the Irish Government are tone deaf to the concerns of unionists on this—absolutely, utterly tone deaf. They do not get it, and, if they do, they ignore it.”228

242.On the other hand, Ambassador O’Neill stressed that “the Government of Ireland acknowledges that there are genuine concerns regarding the Protocol in Northern Ireland, particularly among unionists.”229

243.In terms of respecting the concerns of other communities around North-South relations, the Government has stated that its commitment remains to “ensure that there is no hard border on the island of Ireland”.230 Sir Jeffrey Donaldson stressed that “none of us is arguing for a hard border on the island of Ireland.”231 Doug Beattie likewise said:

“If somebody said to me they were going to put a hardened border on the island of Ireland north and south, I would be really upset, for two reasons. First, I have manned that border before and I do not want to do it again. Secondly, I know it would upset my nationalist friends and neighbours, and I would not want to do that. In the same instance, I would like to think that they are looking at me as a unionist who says the Irish Sea border is upsetting me and that they would want to do all they can to get rid of that.”232

The impact on the power-sharing institutions

244.There were also divergent views on the impact of the Protocol upon the functioning of the power-sharing institutions, and specifically on the DUP’s decision after the Assembly elections not to nominate a deputy First Minister or to agree to the nomination of a Speaker of the Assembly.

245.Sir Jeffrey Donaldson justified the DUP’s position as follows:

“I gave months and months and months to the UK Government and the EU to find solutions. The talks went on and on and on, and no solution was forthcoming. I felt I had to act to send a very clear message to both London and Brussels, and indeed to Dublin as well, that we cannot go on like this. The Assembly and Executive can function only on the basis of cross-community consent. … We need to get back to that consensus, which means we need to address the problems created by this Protocol, find a solution that people can live with and move on so that we can restore the fully functioning political institutions, which is what I want to see happening.”233

246.Doug Beattie said:

“We are getting deeper and deeper into a mess that is going to be harder to get out of. We have no Assembly; no Executive; a cost of living crisis, which is not a strapline but a lived experience for many people in Northern Ireland; absolutely horrific hospital waiting lists; and everything else that is going wrong in Northern Ireland at this time. We need a functioning Assembly and Executive, but we do not have them. That is the outcome of the election on 5 May and is, in part, because of the Protocol.”234

247.Declan Kearney stressed the need for the restoration of the power-sharing Executive, which he argued was not functioning due to “an entirely spurious position that has been fictionalised by the Democratic Unionist Party in particular”.235

248.Matthew O’Toole said that:

“The deceptively obvious answer being promulgated by UK Ministers at the minute is that, because there is no Assembly and Executive, the Protocol is to blame and, therefore, we should get rid of the Protocol. This is, I am afraid, a preposterous and utterly disingenuous way of looking at it. … Frankly, I do not think that the DUP’s position is in any way acceptable. It is not acceptable to say that, because you do not like this one consequence of Brexit, which, of course, you championed and helped steward through, you should not allow devolved institutions to function. That is not good, but that is part of a broader consequence of Brexit.”236

249.Sorcha Eastwood argued:

“The most important thing would be to have a functioning Assembly and Executive in Northern Ireland immediately. The importance of that cannot, in any shape or form, be discounted. The vast majority of people in Northern Ireland, regardless of who they voted for in the Assembly election just under a month ago, regardless of their view on the Protocol, are not happy with this being used as leverage and an impediment to having an Assembly and an Executive”.237

Consent and the Belfast/Good Friday Agreement

250.We also heard contradictory evidence about the Protocol’s impact on and interaction with the Belfast/Good Friday Agreement.

251.In her speech opening the Second Reading debate on the Northern Ireland Protocol Bill in the House of Commons, the Foreign Secretary set out the Government’s position as follows:

“We are taking this action to uphold the Belfast/Good Friday Agreement, which has brought peace and political stability to Northern Ireland. The Northern Ireland Protocol is undermining the function of the Agreement and of power sharing. It has created fractures between east and west, diverted trade and meant that people in Northern Ireland are treated differently from people in Great Britain. It has weakened their economic rights. That has created a sense that parity of esteem between different parts of the community, an essential part of the agreement, has been damaged.”238

252.James Cleverly told us:

“Ultimately, the philosophy that underpins the Good Friday Agreement is the consent of both communities. At the moment, we do not have that, so for me we need to take actions to resolve that. … The Good Friday Agreement was never about the minority being silenced by the majority. … at its heart it is about making sure that the minority view and the majority view have a voice. … Addressing the concerns of minority voices in Northern Ireland goes to the heart of the Good Friday Agreement. … we listen to all communities in Northern Ireland, and it would be deeply dangerous if we were to send the message that we pick and choose which communities in Northern Ireland we listen to.”239

253.However, Ambassador O’Neill asserted that “nothing in the Protocol contradicts the Good Friday Agreement”:

“The Protocol was drafted and designed specifically to protect the Good Friday Agreement in all its dimensions, taking account of the form of Brexit pursued by the British Government. It fully recognises the constitutional position of Northern Ireland and protects the principle of consent enshrined in that Agreement. The Protocol preserves the hard-won gains of the peace process by establishing the framework that prevents a hard border on the island, maintaining the necessary conditions for North-South cooperation, and protecting the all-island economy. At the same time, it ensures that there will be no ‘diminution of rights, safeguards, or equality of opportunity’ as promised by the terms of the Good Friday Agreement.”240

254.The Ambassador argued that the Protocol did not breach the principle of consent in the Belfast/Good Friday Agreement:

“On the contrary, Article 1 of the Protocol itself specifically acknowledges that the constitutional status of Northern Ireland can only be changed with the consent of the majority of its people. A variation of this false assertion is that the Protocol can only be sustained if it enjoys cross-community support in Northern Ireland. While the Good Friday Agreement provides for cross-community support on certain key decisions within the devolved competence of the Assembly or Executive, the Protocol—as an excepted matter—is outside that scope and therefore no such requirement arises.”241

255.The Ambassador asserted on the contrary that “threats by the UK Government to take unilateral action have placed the Good Friday Agreement under strain by damaging the foundations of trust and partnership between both Governments, upon which the Agreement is based.”242

256.Matthew O’Toole argued that:

“Virtually all non-unionists, whether nationalists or constitutionally unaligned, strongly oppose and opposed Brexit itself. … The question of unionist consent is used as an argument against the Protocol’s existence, but many of the people making those arguments never breathed a word about the consent of nationalists or non-unionists generally for either Brexit or the type of Brexit that has been visited upon all of the UK but specifically Northern Ireland. … The same people who dismissed any and all concerns about the impact of Brexit on Northern Ireland are now citing the need for the delicate balance of the Northern Ireland settlement to be respected.”243

257.The Centre for Cross Border Studies noted that a core reason put forward by the UK Government for bringing forward domestic legislation “is the need to protect the 1998 Agreement, of which it is a co-guarantor. And yet, what it appears to be considering would not only ignore the views of the other co-guarantor, it would also ignore the results of the recent Northern Ireland Assembly elections.”244

258.The Committee on the Administration of Justice argued that it was not credible for the Government to have “devised and agreed the Protocol as the mechanism to protect the Good Friday Agreement in all its dimensions”, only to entertain “a counter argument that the Protocol itself conflicts with the Agreement”. They argued that, as the Protocol was a treaty agreed by the UK and the EU, it is a matter of reserved competence (and therefore outside those areas of devolved competency requiring cross-community consent). They added that the principle of consent in the Belfast/Good Friday Agreement refers specifically to the provisions determining whether by a simple majority Northern Ireland continues in the Union with Great Britain or joins a sovereign united Ireland. Otherwise, “Brexit would also have required such consent from the people of Northern Ireland, who instead voted to remain in the EU … there was no cross-community nor simple majority consent for any form of Brexit”. They argued that the Government was proposing a “selective” precedent “based apparently on political expediency” whereby unionist (or in theory nationalist) parties could exercise a veto over UK international obligations.245

259.Professor Monica McWilliams and Emma DeSouza likewise stated that “there has been a concerted effort to misapply the cross-community vote … as being applicable to the Northern Ireland Protocol.” They also argued that it was “difficult to square this argument with the lack of nationalist consent for Brexit itself.”246 Dr Sylvia de Mars, Dr Colin Murray and Dr Clare Rice made similar arguments.247

260.On the other hand, Sir Jeffrey Donaldson argued that the Protocol “fundamentally … undermines the Good Friday Agreement”:

“The Good Friday Agreement, in Article 1, states that there shall be no change to the constitutional status of Northern Ireland without the consent of its people. Some hold that to mean simply that that question can only apply when we have a referendum or a border poll. I disagree with that. Lord Trimble has stated publicly that he regards Article 1 of the Good Friday Agreement as meaning that any change to constitutional status … relates to our constitutional relationship with the rest of the United Kingdom. That has been fractured by the Protocol. It has harmed the very delicate constitutional balances at the heart of the Belfast Agreement.”248

261.As we have seen, Victoria Hewson stated that:

“Any negotiated solution that does not respect Northern Ireland’s place in the UK’s legal order and internal market will continue to be unstable and undermine the Belfast Agreement. … Both sides’ stated priorities, reflected in the wording of the Protocol itself, include protection of the Belfast Agreement. The obvious ground for compromise is that the Protocol as currently formulated does not achieve this objective, indeed has had the opposite effect.”249

262.Dr Austen Morgan, barrister practising from 33 Bedford Row Chambers250, argued that the Belfast/Good Friday Agreement had been weaponised by the EU in the Brexit negotiations, in spite of its marginal relevance in the context of UK membership of the EU. He also criticised the Irish Government for abandoning the bilateralism with the UK “arguably required by the Belfast Agreement” in favour of “full EU multilateralism”.251

263.Co-operation Ireland noted these divergent views on whether and to what extent the Protocol formally infringes elements of the Belfast/Good Friday Agreement:

“What has to be acknowledged, however, it that there are genuine fears within the unionist community that its place in the Union is under threat and, as Britain continues to diverge from the EU over time, that Northern Ireland will increasingly become separated from the rest of the UK. These fears must be understood in the context of concessions already made, including provisions for a Border Poll, within the [Belfast/Good Friday Agreement]. At the same time for the estimated 85% of Catholics who voted to remain Brexit has brought to the fore dis-satisfaction with Northern Ireland’s continuing place in the UK, increasing calls for a Border Poll.”252

264.We also note that some witnesses pointed to the democratic deficit as a fundamental democratic objection to the Protocol.253 For instance, Sir Jeffrey Donaldson said that the Protocol created a “deep flaw” in that it breached the principle of ‘no taxation without representation’, since “elected representatives in Northern Ireland have no say in how major issues and decisions on taxation are made that impact on our economy and our people”.254 The Government’s explainer document published alongside the Northern Ireland Protocol Bill referred to “a democratic deficit as rules are made and imposed on Northern Ireland without ongoing democratic consent”, adding that “there are no structures for UK or NI representatives to have a say in EU rules”.255 Doug Beattie agreed that the lack of oversight in Northern Ireland of EU rules that apply there constituted a democratic deficit. He said that one option would be to establish a statutory committee in the Northern Ireland Assembly to scrutinise EU laws that apply to Northern Ireland.256

265.Others stressed the need for enhanced engagement with Northern Ireland stakeholders. For instance, Matthew O’Toole called for “agreed and approved processes for … signposting when changes to EU legislation are going to affect Northern Ireland”, “better and more visible engagement from Northern Ireland politicians, business stakeholders and affected groups”, and observer status for MLAs in the EU Committee of the Regions.257 Sorcha Eastwood said that “it can only be beneficial if the voice of Northern Ireland is being heard” within the EU, including through the Withdrawal Agreement Joint Committee.258 Declan Kearney said that Executive Ministers had been given a minimal role in relation to the deliberations of the Joint Committee, and called for them to be given “the opportunity and space to represent the needs, concerns and priorities of our business and agri-food sectors” in relation to the operation of the Protocol.259

Attitudes regarding the Northern Ireland Protocol Bill and the UK and EU’s responsibilities

266.Shortly before its publication, James Cleverly outlined the rationale behind the Northern Ireland Protocol Bill:

“The Government’s position remains that our preference is to resolve this through a negotiation and an amendment to the Protocol. … If we are able to get a negotiated settlement through the Protocol that addresses these concerns we would be more than happy to rely exclusively on that. … We are taking these actions through domestic law, while still saying that we want to have a negotiated outcome, as a safety net. … Our rationale for starting to build that safety net legislation is because we had been negotiating for quite a protracted period with the EU. The last couple of rounds of negotiation were not shifting things as quickly as they needed to, and we have now seen, subsequent to the elections in Northern Ireland, that the Executive has not been re-formed. We cannot wish those things away and we cannot let those things endure indefinitely.”260

267.Sir Jeffrey Donaldson said that he “would very much welcome legislation that would address the problems and difficulties created by the Protocol.”261 He stressed that the legislation was justified because of the EU’s failure to adapt its own approach:

“The mandate given to Maroš Šefčovič is … limited to how the Protocol is implemented. It does not deal with the fundamental flaws in the Protocol or the impact the Protocol has on political stability in Northern Ireland, on our relationship with the rest of the United Kingdom, and on inter-community and cross-community relationships in Northern Ireland. It does not do any of those things. Therefore, as the Foreign Secretary has said, unless the EU changes the mandate for negotiation, those negotiations are going nowhere.”262

268.Doug Beattie described the Bill as “agitator legislation”, in that it would have a short-term detrimental impact on UK-EU relations, “but it will bring people back to the table after the summer … things are likely to get worse before they get better, but we believe they will get better if we keep engaging.” Mr Beattie said that the UK and EU had engaged in a blame game over the breakdown in dialogue, which meant it was difficult to understand who was most at fault. He stressed that negotiations are “always going to be the best solution, and that is what we will always advocate for.”263

269.Ambassador O’Neill asserted that:

“The UK Government’s stated intention to table legislation to unilaterally dis-apply elements of the Protocol is deeply disappointing and clearly contrary to international law. The Government of Ireland believes that such unilateral action is unhelpful and unnecessary and, if the UK engages constructively in the period ahead, that a sustainable outcome can be agreed to address legitimate concerns with the practical operation of the Protocol. … It also undermines trust between the UK and the EU, and makes it significantly more challenging to find agreed and sustainable solutions.”264

270.Those political parties who emphasised the necessity of the Protocol were also critical of the UK Government’s approach and action. Matthew O’Toole accused the UK Government of being “an agent of chaos”:

“In terms of some of the societal impacts, there has been a campaign of distortion and exaggeration, bluntly, about the Protocol. … with some of what the UK Government have done recently around talking up instability and the threat to the peace process, we are getting close to a self-fulfilling prophecy at times. … If I am a unionist in Northern Ireland, in a sense, the UK Government are telling me that I am being ripped off here. At the minute, the UK Government are telling me in every utterance, ‘God—Brussels, the Dublin Government and a load of ill-begotten nationalists and liberals are taking away your Britishness because they want Northern Ireland to be subject to the EU customs code and in an SPS area’. At a certain point, the UK Government will have to say, ‘No, that is not what this is. We need to have particular arrangements for Northern Ireland because it is on a different land mass and has a unique context’.”265

271.Sorcha Eastwood said that “walking away from engagement will not work. It simply entrenches positions, and unilateral action is deeply unhelpful. … Now is the time for clarity, honesty and a collegiate approach, not simply speaking to a base in isolation.”266

272.In the view of Declan Kearney, the Government was attempting to:

“ride two horses … They will on the one hand sabre rattle, and on the other hand speak the language of compromise and talk about the potential for issues being resolved and solved through the appropriate level of engagement. What we need to hear conclusively … [is] that they are going to set aside threats of unilateral action; that they are going to accept that this is now an international treaty for which they are co-guarantor and co-signatory; that they are going to seek out the appropriate level of engagement with the European Commission to conclude on the remaining issues; and that they are going to show good faith and commit absolutely to building the kind of trust that I believe they have diminished and broken with the European Commission in recent times.”267

273.A number of other witnesses, including civic society representatives, offered their reflections on the UK and the EU’s responsibilities.

274.Dr Sylvia de Mars, Dr Colin Murray and Dr Clare Rice argued that:

“The introduction of domestic legislation to override aspects of the Protocol is not conducive to creating stability in post-Brexit Northern Ireland. Such approaches generate uncertainty in the short term and provide no solid solution for the long term. Anything short of a negotiated outcome will fall short of providing the most stable foundation possible.”268

275.The Centre for Cross Border Studies stated that “unilateral action, from either party responsible for the implementation and operation of the Protocol, will only further undermine trust and make the search for joint solutions … all the more difficult.”269

276.However, Victoria Hewson stressed that there was a particular onus on the EU to resolve the impasse:

“The EU has little to lose from a restructuring of the Protocol, other than its leverage against the UK. A collaborative, negotiated solution would surely be more reflective of the EU’s preference for rules-based order than the alternative, which seems at present to be unilateral action by the UK, which may in turn lead to protracted legal actions. At a time when the EU and its member states face economic and security challenges on a number of fronts, this is surely a ground for it to seek compromise.”270

277.Sir Jeffrey Donaldson stated that “there needs to be the will” to overcome the challenges the Protocol presents:

“I have to be honest. I do not see that from the European Union. There is too much ideology in this debate and not enough pragmatism. This is too much about, on the one side, punishing the UK for daring to leave the European Union and, on the other side, whatever Brexit means to some people.”271

278.On the other hand, while acknowledging that it needed to do more, in particular in relation to SPS and customs checks, Declan Kearney argued that EU leaders were speaking “in good faith when they say that no issue is beyond resolution”, and that the Commission “will do whatever it takes to ensure that smooth and effective resolutions are found.”272

279.James Cleverly acknowledged the EU’s concerns that any arrangements under the Protocol could create a precedent. He also acknowledged that Vice-President Šefčovič and Commission officials:

“have looked at various angles to see whether they can make it work, and we believe that he is doing that in good faith, yet we have reached an impasse. Those things being true, something has to give. … If he has been as flexible as he can be within the current constraints that he has, our view is that his constraints need to be amended a bit, hence our call to have his mandate amended so that we can get this agreement done and dusted. That is in all our interests.”273

280.Given that we concluded taking evidence for this inquiry before the publication of the Northern Ireland Protocol Bill and the Government’s legal position, questions concerning the Bill’s compatibility with international law are beyond the scope of this report. We will explore this issue in the context of our scrutiny of the Bill in the autumn.

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