Brexit’s Northern Ireland Protocol Faces Challenge

Campaign poster of DUP leader Arlene Foster (Geograph Ireland)

Northern Ireland’s right-wing Democratic Unionist Party (DUP) plans to pose a legal challenge to the Brexit withdrawal agreement’s Northern Ireland Protocol, which governs post-Brexit relations between the Republic of Ireland and Northern Ireland. The challenge, announced by party leader Arlene Foster on February 21, follows significant unionist criticism alleging that the protocol places trade barriers between Northern Ireland and Great Britain, violating British law.

The Democratic Unionist Party, currently the largest party in the Northern Ireland Assembly, has long been the most powerful right-wing force in Northern Ireland, as well as one of the staunchest opponents of Irish nationalism. The party is also deeply Eurosceptic and supported Brexit in 2016.

The Northern Ireland issue was one of the most vexing dilemmas that arose during the Brexit negotiations between the U.K. and the EU. The U.K. had three objectives: no hard border between Northern Ireland and the Republic of Ireland, no customs border between Northern Ireland and Great Britain, and full British withdrawal from the European Single Market and the EU Customs Union. Fulfilling all three of these objectives simultaneously, however, has proven impossible. Withdrawing from the single market and customs union necessitates either a hard Irish border or a border between Northern Ireland and Great Britain in the Irish Sea. After protracted negotiations led to a temporary backstop, the resulting protocol established a customs border on the island of Ireland while simultaneously establishing a de facto customs border in the Irish Sea, effective January 1, 2021.

Unionists have criticized the Northern Ireland Protocol as an inadequate solution. Because of the Irish Sea border, customs must now be imposed during the exchange of goods between Northern Ireland and Great Britain, effectively leaving Northern Ireland outside of the U.K.’s legal sphere and within the European Single Market and customs union. The DUP launched a concerted five-point campaign to oppose the protocol on February 2.

Some unionists have argued that these barriers violate the Act of Union 1800, the Northern Ireland Act 1998, and the Belfast Agreement (also known as the Good Friday Agreement.) As such, DUP leadership announced judicial review proceedings aiming at challenging the new protocol, contending that “fundamental to the Act of Union is unfettered trade throughout the U.K. At the core of the Belfast agreement was the principle of consent, yet the Northern Ireland protocol has driven a coach and horses through both the Act of Union and the Belfast agreement.”

Supporters of the protocol argue that the DUP’s challenge is misguided, with Colum Eastwood, leader of the nationalist Social Democratic and Labour Party, arguing that the effort “is ill judged and will only further entrench the febrile political environment [while] creating further uncertainty for people and businesses.” Sinn Féin MP Chris Hazzard went even further, describing the challenge as “prolong[ing] uncertainty and instability” and attempting “to claw back unionist grassroots support.” 

Eastwood appears confident that the judicial review will lead nowhere, claiming “there will be few with sympathy for the argument that the protocol, which prevents a hard border in Ireland and guarantees dual market access for local businesses, breaches the Good Friday agreement.” Foster, for her part, believes that the challenge has a “good chance of success.”

Following a successful petition that had been promoted by the DUP, a parliamentary debate on the matter will occur on February 22.