London and Brussels could announce a deal to resolve a bitter dispute over post-Brexit trade in Northern Ireland as early as this week. But with final negotiations underway, one sticking point remains: the region’s biggest pro-British party is demanding not to be subject to EU law.
The Democratic Unionist Party has paralyzed Northern Ireland’s political institutions since May to push for changes to the so-called Northern Ireland Protocol, which sets the rules for trade after Brexit. It demands that the region be allowed to have a say in the laws that govern it.
When Brexit came into force in 2020, Northern Ireland stayed inside the EU’s single market for goods and a trade border was placed in the Irish Sea to avoid a politically sensitive land border with EU neighbor Ireland. But hard-line unionists and the UK government say the protocol creates a “democratic deficit” that leaves Northern Ireland subject to EU rules.
What is the “democratic deficit”?
Under the protocol, the region must follow EU rules on trade. The European Court of Justice, the bloc’s highest court, has the final say in any dispute.
However, this means that when the regulations change, Belfast must follow suit. This could mean changing up to 300 regulations that were still in place when the UK left the EU in 2020 and which still apply in Northern Ireland.
Whether new regulations for trade in goods in the single market apply to Northern Ireland may be discussed by a joint EU-UK committee overseeing the operation of the Brexit trade deal, chaired by the UK foreign secretary and the EU Brexit commissioner .
If the UK objects but the EU believes they are necessary, Brussels could take unspecified “remedial measures” to force London to comply.
DUP leader Sir Jeffrey Donaldson told UTV last month that if EU rules changed significantly from current UK law, “it would seriously affect our ability to trade within the UK because our standards would diverge from UK standards’.
A UK bill giving ministers powers to scrap large parts of the protocol, currently on ice in the House of Lords, would allow traders to follow UK or EU regulations in Northern Ireland – a route which favors the DUP.
EU diplomats say the legislation is a red line for Brussels and looks like a loaded gun on the negotiating table. But hard-line unionists say they oppose the EU’s highest court having the final say on the implementation of the protocol.
What are the obstacles to fixing it?
The EU has ruled out any renegotiation of the protocol. Under Article 18 of the protocol, Northern Ireland lawmakers have the right to vote at the end of next year on whether or not to keep some of the rules. Such a vote could potentially be held every four years, but would not allow politicians to scrap the protocol entirely.
Complex power-sharing arrangements in the region mean that agreement between traditional nationalist and unionist communities — needed for sensitive decisions — is difficult. Despite opposition from the DUP, the majority of lawmakers support the protocol as it stands.
Jon Tonge, professor of politics at the University of Liverpool, said that given the “dysfunctional nature” of the Stormont executive and the veto powers held by both sides, it “would be downright dangerous” to give lawmakers too much say.
Georg Riqueles, who helped negotiate the protocol for the EU and now works for the European Policy Center think-tank, said Article 18 gave the region sufficient democratic accountability.
He warned that a “pick and choose” mechanism was not sustainable. “It would be the cause of endless debate and ultimately the dismantling of the framework.” he said.
Can the problems be overcome?
One proposal from the European Commission is to give Northern Ireland businesses and politicians an advisory role. There is already such an example for non-EU Norway, Iceland and Liechtenstein, which are aligned with the single market and participate in consultative groups with member states before legislation is introduced.
They can also veto the implementation of new laws in their countries, but in practice this has never happened.
“One could envisage a process involving consultation with the Northern Ireland assembly,” said Mujtaba Rahman, managing director for Europe at consultancy Eurasia Group.
“There is an awareness of the specific situation with Northern Ireland and where things have a significant impact. The regulations that follow will be discussed and the joint committee will be the vehicle to do that.”
Brussels points out that the implementation of the protocol can be adjusted. Last year, for example, the Commission unilaterally changed its regulations to prevent drug shortages in Northern Ireland.
“It shows that the protocol has the flexibility to work on the ground,” Brexit Commissioner Maros Sefcovic said at the time.
Others have suggested that the ECJ’s role as the final arbiter of the protocol could be softened by a commitment by Brussels to take legal action against alleged violations of trade arrangements only in very limited cases.
Michael Dougan, professor of European law at the University of Liverpool, said this could “reassure” London. “Easy to deliver, no protocol modification,” he said he tweeted.