John Bruton writes: The time has come for realism about the dilemmas inherent in Brexit. All trade needs enforceable rules.
We must find a way to involve democratic politicians, including in Northern Ireland (NI), in understanding and shaping the rules that are an essential part of all international trade.
It is important to recall that the UK had already agreed the terms of the Protocol when they started work on finalizing the 2020 EU/UK Trade Agreement. The Protocol was an intrinsic part of the Withdrawal Treaty of 2019.
UK withdrawal from the EU was intended by its promoters to be a permanent, not a provisional, arrangement. Likewise the Protocol was negotiated by both sides as a permanent, not as a provisional arrangement.
The Protocol is a very precise and readable document, and it had already been freely endorsed by the UK Parliament, before the EU/UK trade negotiations even started.
As the UK negotiators examined various options for the Trade agreement, such as being in the Single Market, in the Customs Union, or in a Veterinary Agreement, they were easily able to read across, from the Protocol, how each of these choices might affect trade between Britain and Northern Ireland.
There was nothing hidden. It was all there in black and white in the Protocol. The items of EU law, that apply to Northern Ireland under the Protocol, are listed in an Annex that is part of the Withdrawal Treaty.
With that knowledge, the UK negotiators then chose a form of Trade Agreement that maximized the difficulties that would flow from the application of the Protocol.
Only a No Deal Brexit would have involved more checks, under the Protocol, of goods going from Britain to Northern Ireland, than the option the UK chose.
UK negotiators opted for a form of Brexit that maximized the intrusive consequences flowing from the Protocol.
This creates two types of problem for a substantial, mainly unionist, section of the population in Northern Ireland.
+ practical inconvenience/ trade diversion problems and
+ a constitutional/democratic legitimacy problem.
Some practical inconvenience/trade diversion problems will remain, no matter how flexibly the Protocol is interpreted. These problems are inherent in Brexit.
They can be mitigated to the greatest extent, if there is an atmosphere of maximum trust between the UK and the EU, and between the people of Northern Ireland and the EU.
On the other hand, supporters of the Protocol here should recognize that the constitutional/ democratic legitimacy problem, arising from the outworking of the Protocol, is also a source of the mistrust. I do not feel this issue is getting enough airing in this jurisdiction.
This democratic legitimacy problem arises from the fact that, in future, EU laws will be made that will apply to NI, without democratic representatives of NI having had any say in these laws.
Democracy is part of the unionist cultural and religious tradition. It has deep roots, going back to arguments about whether there should be democratic rather than monarchical governance of the church in sixteenth century Scotland. This is the intellectual tradition from which many of today’s unionists descend. It should be respected and taken seriously.
While NI did have a democratic say, through the UK government and its MEPs, in all past EU laws that apply in NI through the Protocol, it will have no say in FUTURE EU laws.
All it is offered, under Article 18 of the Protocol, is a choice, every few years, by the NI Assembly, to reject the Protocol in its entirety and take a leap into the dark.
Such a rejection would have unforeseeably damaging effects for NI businesses. It would disrupt exports from NI to Europe, and even the threat of it would deter investment in NI in many forms of goods production. It would also be a black and white choice. It might be “democratic” in a literal sense, but it would also be crude and polarizing.
Are there other, more constructive, ways by which the “democratic deficit” for NI in the Protocol might be filled?
Obviously the Irish government, as an EU member, could take up NI concerns, but unionists would not be happy with that. They would want Northern Ireland to be able to speak for itself, as of right, and not by leave of Dublin, or through Dublin.
NI needs to have its own distinct voice on all EU rules governing goods that come within the scope of the Protocol.
So there needs to be some method by which the NI Executive and Assembly would have a permanent ongoing input, as of right, and independently of either the Irish or UK governments, to EU law making that would apply to NI under the terms of the Protocol.
One way to do this might be through associating Northern Ireland with the European Economic Area (EEA).
The present EEA members, Norway, Iceland and Liechstenstein have a Treaty based role in shaping EU laws that will apply to them. They are actively represented in Brussels. There is a readymade institutional structure. EEA working groups are consulted on both the drafting and the implementation of EU laws that apply in the EEA.
Ways in which this might be done were explored in a paper published in April 2017 by the European Policy Centre.
We should explore whether and how NI could, without prejudice to its constitutional position as part of the UK or otherwise, become an associate member of the EEA as well.
Obviously, the UK and the existing EEA members would have to consent to it. So would the EU. Some Treaty changes might be needed. The electorate of NI might need to be consulted too.
Timing is important in politics.
The present, increasingly damaging, confrontation between the UK and the EU will have to play itself out before an idea of this nature could be considered on its merits.
But not the least merit of associating NI with the EEA is that would move the focus of politics in NI away from a confrontation over impossible dilemmas, towards a constructive democratic engagement with the very real problems of global regulation of commerce.
It would bring a welcome international dimension to the politics of NI, without altering its constitutional status.
First published (in amended form) in the Irish Independent (€)