Following the EU’s decision to open new court proceedings against the UK, this article has been updated to reflect the latest developments surrounding the Northern Ireland Protocol.
The answer begins in 1921 when 26 of Ireland’s 32 counties gained independence from the UK.
Since then, the United Kingdom and the Republic of Ireland have sought a degree of regulatory alignment to facilitate reasonably easy movement and trade between the Republic and the six counties that make up Northern Ireland. Although political pressure has often meant that this simple move was more theoretical than actual, there has always been a degree of regulatory alignment across the island of Ireland and between Ireland and the UK as a result.
In the 1950s, after the UK changed its immigration laws to limit the rights of Commonwealth citizens to come to the UK, the Irish government followed suit to expand the Common Travel Area (the Free Movement of Persons Agreement which the UK, Republic of Ireland and the island comprised) to be retained by Man and the Channel Islands, in which the citizens of all four localities are free to move and reside in all four territories without restriction). The UK’s unwillingness to join the Schengen area, which allows passport-free travel within 26 European countries, means the Republic of Ireland remains outside of it too. For this reason too, both countries joined the European Economic Community (EEC) at the same time.
So it’s about the EU?
The common regulatory framework of EEC membership, particularly following the creation of the Single Market, Customs Union and modern European Union in the late 1980s and early 1990s, meant that these arrangements largely ceased to be a bilateral matter between Ireland and the UK be. and became a pan-European: integration between member states facilitated the already existing alignment and integration between the island of Ireland and Great Britain. (The so-called east-west border.)
This regulatory alignment helped facilitate the political agreements reached in 1998 (the Good Friday Agreement) and for the remainder of the decade, largely ending a period of sustained and widespread political violence in Northern Ireland and across the UK.
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How has Brexit changed things?
After the UK voted to leave the EU in 2016, the future of this regulatory convergence was up in the air. Ireland remains in the EU and most likely will for the foreseeable future, but the UK is out of the EU and is equally unlikely to be able to rejoin for the foreseeable future.
Both EU and UK law are ever-changing, which meant the Brexit talks needed to enshrine some sort of legal framework to align Ireland’s and Northern Ireland’s regulatory frameworks.
What was Theresa May’s “backstop” solution?
Theresa May’s preferred approach was an “all-UK” approach – the so-called backstop – which would have meant that the whole of the UK would continue to have the same regulatory framework as the EU when it comes to goods (that is, tangible items sold to people ). , like cars, computers, and contraceptives) and phytosanitary standards (that’s the kind of regulation that governs how plants, animals, and people are transported and treated—essentially: food, live animals, and medicines).
The problem with May’s backstop, however, was that the EU didn’t like it because it took away a large part of the single market, and Conservative backbenchers didn’t like it because it involved a high level of post-Brexit rulemaking for the UK. It was rejected by the UK Parliament and there is no prospect of it being reintroduced: Conservative MPs will not ask for it and the EU will not offer it again.
What was Boris Johnson’s ‘Northern Ireland Protocol’ solution?
Boris Johnson chose a different route: the Northern Ireland Protocol, which aligns just Northern Ireland on commodities, plant health standards and a handful of other areas.
why did he do that? Well, there is a political argument that there is already a regulatory ‘east/west’ border between Northern Ireland and the UK as far as agriculture and energy are concerned, so a small thickening is not a significant change. But there was also a political imperative. Not wanting to come into the country as a no-deal Brexit candidate at the 2019 election, Johnson seized on the only other alternative: that Northern Ireland remain in the EU’s regulatory circle and the UK leave.
What’s happening now?
Today, unionist parties such as the Democratic Unionist Party (DUP) continue to oppose the Northern Ireland Protocol, largely because it draws an effective border across the Irish Sea. This undermines Northern Ireland as the region is treated differently to the rest of the UK. Meanwhile, critics of the protocol in both Britain and Northern Ireland claim trade disruptions between the two regions mean changes are urgently needed.
Disagreements over the protocol have also created an obstacle to finalizing a power-sharing agreement in the Northern Ireland government. Earlier this year, the executive branch collapsed after First Minister Paul Givan of the DUP resigned in protest at protocol. The party is now refusing to accept a power-sharing agreement with Sinn Féin until changes are made to the protocol.
The UK government has now tabled a motion to have parts of the protocol overruled, saying the disagreements at Stormont need to be resolved. In response to the new draft law, the EU has again stated that it will not renegotiate the Withdrawal Agreement. On July 22, the EU launched a new court case against the UK for failing to implement the protocol.
Can this be resolved?
Whatever changes are made, the problem remains: the relationship between Ireland and Northern Ireland has included a high degree of regulatory convergence since 1921. During the UK’s period of membership of the EU, this was facilitated by a common set of European standards. Before the two countries joined the European Union, the United Kingdom – the larger country – essentially set the terms of the alignment.
Brexit means Ireland is now part of the larger bloc and British politics has yet to adjust to this changed relationship.
[See also: Liz Truss’s free-market experiment is a threat to economic stability]