The issues of the Ireland/Northern Ireland Protocol are more fundamental than the political antics of David Frost and Boris Johnson

9th March 2021

Those who follow Brexit are likely to have strong opinions on the merits of Brexit, and those strong opinions will in turn to influence how each development is approached.

Supporters of Brexit will clap and cheer at certain things, and opponents of Brexit (or of this government’s approach to Brexit) will rage and jeer.

One side will tend to see the government as doing nothing wrong, and the other side will see the government as doing everything wrong.

And such partisanship means any problem is seen either as not existing or as entirely the fault of the government of the United Kingdom.

But not everything is the fault of a bunch of politicians in one place and at one time.


In a recent post at the London School of Economics blog, Professor Katy Hayward of Queen’s University Belfast has done a short explainer on the Ireland/Northern Ireland Protocol – and it is perhaps one of the best short explainers on Brexit generally.

But the one phrase in that post which stood out for me was this:

‘It is true that – with the best will in the world (which is evident among most businesses in NI) – the new border regime is still far from ready for full implementation.’

So used are many of us at seeing as every failing of Brexit as being directly attributable to the expedient follies of the United Kingdom government that it can sometimes be forgotten that even if we were suddenly to have a sensible and practical government many Brexit problems would still be there.

For this is the very nature of fundamental problems: mere superficialities cannot and do not make any difference.

That is why the problems are, well, fundamental.


Hayward’s post reminds us of how the Ireland/Northern Ireland protocol is exceptional: it affects an internal boundary of one of the parties; it applies different rules to goods moving in one direction than the other; the applicable rules in one direction are that of the European Union and not the United Kingdom; and that in respect of those applicable rules, it will be the United Kingdom that will be applying them, not the European Union.

As Hayward wisely observes: ‘This entails a great deal of trust on the EU side and a great deal of responsibility on the UK side.’

And these are just the structural problems.

There are then many practical problems, as with any trade agreement – which were, of course, exacerbated by the reckless, last-minute approach to the negotiation and implementation of the protocol.


And to demonstrate the adage that there is nothing in political affairs that the current government of the United Kingdom cannot make worse, there are the clumsy and confrontational antics of the relevant minister David Frost.

In the words of Hayward: 

‘The EU is frustrated at the lack of readiness, compliance and, now, the trustworthiness of the UK.’


But the value of Hayward’s post is not just in that pay-off line, but in it showing us that even if Frost was not playing to the gallery, the structural and practical problems would still be there – and just as pressing and urgent.

This means that the European Union – and the rest of us – should not get preoccupied with the current political problems – as distinct from the structural and practical problems.

Just as the claps and cheers of the political and media supporters of the government are not enough to get Brexit ‘done’ – a similar but opposite superficial response to such political idiocy is not sufficient as a remedy to the current problems.

Put bluntly: if prime minister Boris Johnson and various of his ministers all resigned this evening, the structural and practical problems identified by Hayward would still be there in the morning.

And so Hayward is right to aver that the European Union should seek to avoid getting too caught-up in our current government’s short-term silliness – the ‘moral hazard’ of which I set out in a recent post.

The problems addressed by – and caused by – the Ireland/Northern Ireland Protocol will be there as long as the United Kingdom is out of the European Union and Northern Ireland is part of the United Kingdom.


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20 thoughts on “The issues of the Ireland/Northern Ireland Protocol are more fundamental than the political antics of David Frost and Boris Johnson”

  1. All of which is why Brexit (or rather the UK leaving the customs union, which is the Brexit that the UK has chosen) makes Northern Ireland’s position in the UK so difficult.

    There is a fundamental problem with having no border in Ireland when it is the frontier between the EU and the UK and a fundamental problem with having an internal border in the UK. There would also be a fundamental problem with having a border between Northern Ireland and the Republic of Ireland.

    Either we are going to have to live with this fundamentally difficult situation, which I would aver would be most likely to be feasible if Frost and Co behaved as if they recognised that shouting won’t make the problem go away, or one of the two possible other options would have to be taken, which are to rejoin the customs union with the EU or for Northern Ireland to cease to be part of the United Kingdom.

    The only other option, which I wouldn’t put it past Frost and co to think is realistic, is for the Republic of Ireland to leave the EU Customs Union. Perhaps Frost thinks if he shouts enough it will happen. Or Priti Patel could refloat her deeply sensitive idea of starving Ireland into submission.

    As the problem is fundamental, a good idea would either be to sort it or to live with it. Shouting at it is mad.

    Remarkably it is the Democratic Unionists and the Conservative &Unionist Party that has managed to get us to this point.

    1. Very good points. Many now believe that Frost’s objective is to provoke the collapse of the NIP to oblige the EU to move the customs to Ireland’s ports.
      To make Ireland pay for Brexit and cut it off from the EU has long been a cherished dream of the DUP and the Brexiters.

      I doubt it will happen. But these are attacks on Ireland as much as on the EU.

      1. They are indeed attacks on Ireland. We in Ireland can see that. Rather shockingly, the Perfidious Albion of old – in recent history widely thought a nationalist myth – is awake and roaming the land again.

        “To make Ireland pay for Brexit and cut it off from the EU has long been a cherished dream of the DUP and the Brexiters…. I doubt it will happen”

        In that statement you are both right and wrong. Ireland is already paying for Brexit, but Ireland will not be cut off from the EU. Legally we are part of the EU and the EU must therefore accommodate us. The EU’s only course is to grind through whatever it takes to ensure UK compliance. Right now, I think that might involve declining to ratify the TCA until the WA is honoured in full. The only possible way in which Ireland could be cut off would be an Irexit via Article 50. There has never been any significant support for that in Ireland and any support there might be would only dwindle further as people realise that Irexit would pull Ireland back into the ogre UK’s orbit.

        1. I’d imagined far more aggressive options that the EU could pursue if the UK just walked away & opened a back door into the single market, perhaps involving building a pop-up razer wire border with concrete blocks on roads and pedestrian turnstiles through the wire on cross-border footpaths, with portacabin border posts on selected routes, but all flying the EU flag not the Irish one, & staffed not by Irish customs officers but by the customs officials recruited to support Brexit redeployed on secondment from the channel ports, Rotterdam etc. One key problem is the integrity of agriculture in Ireland if EU food & animal health rules are not being followed in the north; the EU can’t just politically decide to let e.g. foot & mouth run rampant across the EU so as not to force a confrontation with the UK, it has to either throw Ireland under a bus & destroy itself, or do something drastic involving a leak proof border.

          Obviously the effect of that would be that those borders would have to be closed to all incoming freight from the UK, & all freight from the UK to the EU would have to travel across to NI, queue up to cross the new land border in Ireland, with all the right paperwork, then get on a ferry to Europe. Trucks crossing to the UK via Dover would have to either return via Ireland or turn round and go home empty.

          It seems to me that this would be so obviously unsustainable for the UK that it wouldn’t necessarily trigger a resumption of the troubles, but might force a resolution of the issue, either by the UK or by NI taking matters into its own hands via a referendum.

          1. That mechanism would be enormously damaging to the Republic of Ireland and its citizens. Most Irish trade with the rest of the EU is shipped through the UK, at the moment, and many RoI citizens live in Northern Ireland, so I don’t think that a ratcheting up of tension by the EU is likely.

  2. Spot on. Like most things in life trust is key. If the EU believes that the British government is willing to pull a fast one, how much more willing are British businesses to take a chance and abuse an open frontier into the EU.

  3. “The problems addressed by – and caused by – the Ireland/Northern Ireland Protocol will be there as long as… Northern Ireland is part of the United Kingdom.”

    There lies the ultimate solution, doesn’t it?

  4. “But not everything is the fault of a bunch of politicians in one place and at one time.”

    The bunch of politicians led by PM Boris Johnson have been in power since 2010. The idiot Cameron thought he could ignore the GFA because the referendum would confirm membership of the EU.

    Teresa May, still nominally in ‘the bunch’, had the ability to side-step Cameron’s personal pledge to implement the result and insist that the ‘advisory referendum result’ be discussed by a committee tasked with determining whether Brexit could be implemented in any way. The limits dictated by the GFA would need to be taken into account. The result should have been to determine that politically the UK could leave the EU but was required to remain in the Single Market and Customs Union for the time being at least.

    The option to leave the SM and CU in future would depend on the resolution of the political future of Northern Ireland; something that may never be settled in out lifetime. Boris Johnson backed Leave as the best opportunity to become PM and was well aware that the Brexit proposed by his financial backers was politically impossible and would cause serious economic issues for the UK and raise the spectre of paramilitary revival.

    THIS bunch of politicians at THIS time are totally at fault.

    1. I absolutely agree. When Teresa May foolishly committeed us to leaving the customs union, my late wife (who was a very astute lawyer) immediately predicted that ‘The NI issue is the rock on which the Brexit ship will founder’.
      It has been clear ever since that time that this is an insoluble problem, but Johnson has tried to brush it aside with his characteristic tactics of denial and bluster. There is now a real danger that this could rekindle sectarian conflict in Ireland, which would be absolutely tragic.

  5. The position of Northern Ireland is a fundamental problem. There needs to be a border between the UK and the EU somewhere. So, where? Is there a creative or technical solution that does not involve a barrier between GB and NI, or NI and RoI, or RoI and rEU?

    This kind of structural non tariff barrier – and practical impediment to free movement of goods, services, capital and people – is the very essence of the “they need us more than we need them”, “taking back control”, “Brexit means Brexit” route the UK has chosen.

    I expect any sensible business in Northern Ireland, like any sensible business in the EU, will be looking at its supply chains and customer lists, and when it can sourcing from and selling to the EU rather than the UK. Only those with sufficient resources and no other choice (or a masochistic love of paperwork) will be jumping through the hoops we have erected.

    And the EU have not ratified the trade and co-operation arrangement yet. How much worse might things get if ratification fails.

    But perhaps we will look back in ten years time, and realise how wonderful it all is, as a new spirit of buccaneering enterprise has been unleashed from the shackles of the EU. Perhaps.

  6. I used to see the fundamental conflict between Brexit and the Good Friday Agreement as a Bug, but in reality it is a Feature of Brexit

    Brexit has been a total success, the aims of those promoting and financing Brexit have been fully realised, but to distract from this it is necessary to create as much noise as possible

    Clearly lessons have been learnt from Vladislav Surkov’s propaganda machine, the more that issues are raised by this implementation of Brexit, the less the concept of Brexit itself will be held responsible

    To distract from the underlying aims of Brexit, it is necessary that the media focuses on all the inconveniences and insurmountable problems created, the more complex the better

  7. Professor Hayward is quite right. NI was always going to be the Achilles heel of Brexit. However, the unreadiness and compliance of the UK government should be put into context. Johnson agreed (after a walk up the garden path) with Varadkar, then Taoiseach, to what May had stated no British PM would contemplate, to put a border down the Irish sea. This was an act of political expediency, agreed to in order to “get Brexit done” where his predecessor had failed. The UK government instead of preparing for this, obfuscated, denied and outright lied in whatever way to assuage whoever the the immediate audience might be. And this after various fairytale technology solutions were mooted and as quickly forgotten. London had already run roughshod over the voters of Scotland and NI (and except for English settlers Wales too) who had voted overwhelmingly to remain in the EU. So this is a problem and potential political crisis of the GFA, UK and EU relations, entirely of London’s making. The unnecessary antagonism of the EU – failing to recognise its Ambassador, making unilateral actions in defiance of an international agreement, bad-mouthing the EU in the UK Brexiter press (as if the EU cannot read English), or worse, deliberately provocative, will not be forgotten by the EU, but I suspect the EU will adhere to the old adage that revenge is a dish best served cold.

  8. The problems on the Irish borders could also be resolved by the UK rejoining the EU customs union and single market while remaining outside the Union itself. Though that’s not an option that the current government would find particularly appealing.

    1. this is the elephant in the room

      most issues go way – apart from the fact we would be a supplicant

  9. “Put bluntly: if prime minister Boris Johnson and various of his ministers all resigned this evening, the structural and practical problems identified by Hayward would still be there in the morning.”

    This is true. But the NIP is predicated on good faith and collaborative relationship between the parties. With a different government re-establishing a relationship of trust would be possible. Giving access to the EU real time customs data as agreed in December 20 between Gove and Sefcovic would increase trust and transparency and therefore lead to a reduction in controls (assuming that the transparency does not show that the UK system is a complete mess, perhaps the reason why the UK is not providing access). Some of the most pressing problems could be ironed out through for instance a balanced SPS agreement.

    So despite the fundamental issues, a different government which would not have an antagonistic approach and would give more weight to opinions from parties other than the DUP would improve the situation.

  10. As with all issues surrounding Northern Ireland, I write from a position of deep ignorance but I do have some small expertise in EU Law and its implementation, structures, etc.

    From that perspective, the EU’s response has, for me, been disappointing. If you accept DAG’s post of 24th Feb and the Rafael Behr article linked within it (which I do, wholeheartedly), then you must also suspect some deliberation behind Frost’s “clumsy and confrontational” antics. I think that the confrontation is calculated, along with his follow up declaration that his threat to breach international law again “isn’t illegal”. This is a message aimed squarely at his chosen gallery and the follow-up messages blaming all the issues on the EU’s inflexibility are both inevitable and, almost certainly, pre-planned.

    The EU, then, is unwise to feed into that narrative with an immediate threat of legal action. That’s an entirely correct administrative response but it’s a poor political gambit.

    In my humble life of small-scale contractual disputes, I’ve learned to defuse posturing and bluster from the other side with an offer of ADR (Alternative Dispute Resolution for non-lawyers – in my case almost invariably mediation – see, if you’re interested). Faced with the prospect of coming to the table with a neutral facilitator managing both sides of the dispute, untenable positions are invariably retracted and replaced with sensible negotiations.

    How does this help the current situation? I would suggest the same way that it worked for the GFA – however much Messrs. Major and Blair claim the credit for the GFA, it was delivered by Senator Mitchell with the initial drive coming from President Clinton.

    There may be numerous reasons why it couldn’t work now (see my opening caveat) but I think that the EU should offer mediation with a suitably respected facilitator nominated by President Biden.

    Any agreement that came from this would be much harder for the Johnson govt. to ignore. The narrative of the “special relationship” may be as much bluster as the narratives of Brexit but it remains Johnson’s bluster and he wouldn’t want to undermine it.

    Whether or not anything came of this, it seems to be preferable to the EU jumping on cue every time our govt. pulls their chain.

  11. The dilemma of the Irish and the EU in dealing with the Johnson-Frost government will be familiar to anyone who has been in an abusive relationship with a sociopath. If I respond to provocation, I risk being ‘owned’ by my abuser, who thrives on chaos and conflict and can profit from their escalation. If I refuse to be provoked, I risk sending the signal that I am weak and that my abuser can continue to harm me (in this case by destabilising the peace process and by degrading the integrity of the the single market and of Ireland’s place in it).

    In the circumstances, the EU’s quiet but firm response in initiating legal action seems sensible to me.

    As a British ‘subject’ (after nearly five years of populist misrule I don’t feel like a ‘citizen’ any more) I am sorry to have to say this about ‘my’ government, but there you are.

  12. Johnson’s major problem with Brexit is that sooner or later, it will be recognised that it does not afford any “marvellous opportunities”. It is already noted that it is generating a lot more red tape than it is destroying (hardly a surprise there) and, post Covid, the travelling public is about to find that holidays in Europe are more expensive and difficult than any of them have ever known. A serious violent consequence in NI is always possible, sadly.
    Only 37% of the electorate ever backed the idea in the first place and even they will come to see that they were sold a pup – the real reason for yet another of odious Nigel’s retirements from political life, perhaps?

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