Jonathan Buckley: It is not Brexit, but the protocol, that threatens the political institutions

There are many misconceptions about the Good Friday Agreement, not least in relation to Brexit which are often repeated. For this the Irish Government must share some of the blame. As Roderick Crawford, in his analysis, “The Origins of the Current Crisis” points out, the EU - at the behest of the Irish Government - adopted an entirely one sided ‘understanding’ of the Good Friday Agreement by elevating the north south relationship and ignoring the status of Northern Ireland as part of the UK. The acceptance by the EU of this foundation error is the basis for many of the problems we face today.

Such hostility to the unionist position was not a one-off aberration. In 2018 the then Taoiseach Leo Varadkar used the IRA bombing of a customs post (and presumably the future threat of such a reoccurrence) to further an argument against a hard border on the island of Ireland. It has also been reported that Irish officials said in 2017 that they could not believe that the UK had accepted the text (of the Joint Report) and they knew it would not be acceptable to unionists.

Of course, it is not the Irish Government’s responsibility to look after the interests of unionists in Northern Ireland, but by adopting the position that it has, it has given up any moral authority to be claiming to defend the Good Friday Agreement in all of its parts.

It is even sometimes incorrectly asserted that Brexit constitutes a breach of the Good Friday Agreement, though no specific provision which allegedly has been breached can be pointed to.

Lord Justice McCloskey in a judgment of the Hight Court in Belfast in 2019 held, “Neither the Belfast Agreement [nor this suite of provisions] was predicated on the basis that UK membership of the EU would continue forever.” He went on, “Neither of them can be construed as requiring a Customs Union or continued regulatory alignment.”

To say that we all want to avoid a harder border on the island of Ireland is a political fact, however it is not one which is based on a provision of the Belfast Agreement.

The suggestion that Brexit itself is the threat to the Good Friday Agreement also fails to reflect reality on the ground. It is a matter of historical record that it was not Brexit but the implementation of the Northern Ireland protocol that made power sharing impossible.

A subsidiary argument that is often deployed is to conflate the Northern Ireland Protocol with Brexit as though one inevitably followed the other. While sequentially the Northern Ireland Protocol came after Brexit, that tells us nothing about causation. Indeed, the protracted period between Brexit and the Withdrawal Agreement and the range of potential alternative approaches that could have been taken breaks any credible argument about causation.

By analogy, it would be absurd if it were argued that the Russian invasion of Ukraine was brought about because of the collapse of the USSR. Perhaps more realistically it could be argued that the EU Single Market and Customs Union – or how they are being operated are a threat to the Good Friday Agreement!

The Northern Ireland Protocol was not an inevitable consequence of Brexit - there were any number of alternatives that could have been - and still could be taken.

Given the fact that the key institutions of the Belfast Agreement - the Executive, the Assembly and NSMC are not presently functioning it cannot seriously be argued that the Northern Ireland Protocol is not a threat to the Good Friday Agreement.

And this is not simply the view or position of one political party in Northern Ireland but as evidenced in recent polls is supported by the overwhelming majority of unionists. Professor Alan Boyle, Emeritus Professor of Public International Law at the University of Edinburgh, recently has argued that the absence of power sharing more than justifies the use of Article 16 and the Northern Ireland Protocol Bill.

Of course, one hardly needs to quote a distinguished academic to make the point that the preconditions for triggering Article 16 have long since been met.

If a negotiated settlement cannot be reached with the EU, the Northern Ireland Protocol Bill may be the only way to save the institutions first created by the Belfast Agreement.