Scarcely a week passes now without the publication of another excitable news report, claiming that the UK and the EU have achieved a “breakthrough” in the Northern Ireland Protocol negotiations. 

This frenzy of briefing and counter-briefing may mean that a deal really is coming. If the rumours are reliable, then it is unlikely to repair the damage that the Irish Sea border did to the Union or restore the power-sharing government at Stormont. 

The problems created by the protocol are profoundly constitutional, as the Supreme Court confirmed this week in its judgment on the issue, and no amount of practical tinkering can redeem an agreement that fails to address matters of status and sovereignty.

Last Wednesday, nevertheless, The Times reported that the two sides had brokered agreements on customs arrangements and the jurisdiction of the European Court of Justice (ECJ). On a similar theme, on Monday, RTE claimed that the EU had agreed to green and red “lanes” for goods arriving in Northern Ireland from Great Britain.

To support this story, the Irish broadcaster quoted an unnamed “senior official” who said, “We have acknowledged the unintended consequences of the Protocol and we know the most important thing is that we have a solution that works for Northern Ireland.” Its Europe editor tweeted, “NEW: The EU will accept the principle that GB goods shipped to NI and staying there should be treated differently to goods moving south into the single market,” describing this development as a “key breakthrough”.

The problem with that statement, apart from the fact that The Times had splashed an almost identical revelation days before, was that, far from being “new”, Brussels conceded the principle of treating goods for Northern Ireland differently well over a year ago. The EU published a paper in Autumn 2021 advocating an “express lane” that it said would cut checks dramatically at Northern Irish ports. 

The Irish Sea border undermined Northern Ireland’s place in the Union

Unfortunately, the government’s analysis found that those figures were based on an assumption that the protocol was already fully implemented. That has never actually happened, due to the chaos it would cause, and next to no one is now calling for “rigorous implementation” of the sea border. The UK indefinitely extended “grace periods” to keep groceries and parcels moving into Northern Ireland from the mainland and make life there liveable. The EU’s plan would actually have meant far more checks and paperwork than are imposed under the current arrangement.

None of this is to suggest that an agreement of sorts isn’t imminent. It is likely, though, that it will consist more of semantic trickery than a genuine attempt to solve the constitutional issues with the protocol that destabilised politics in Northern Ireland. 

The DUP didn’t refuse to participate in Ulster’s power-sharing government for the past year because it felt that the number of physical checks at ports was too high. The province’s largest unionist party collapsed the executive because the Irish Sea border undermined Northern Ireland’s place in the Union, cut it off from the rest of the UK internal market and handed authority over large swathes of life to unaccountable EU decision-makers.

The idea that the protocol could be managed through green and red lanes was originally a British suggestion. You could see its early traces in the “max fac” technical solutions advocated by Tory Brexiteers. It was there, in nascent form, in the government’s command paper, written by Lord Frost in July 2021, and those ideas eventually morphed into the Northern Ireland Protocol bill, which is currently stalled in the House of Lords, supposedly to give “space” for negotiations.

The UK’s proposals were backed by complementary powers, however, like dual regulation and the removal of customs formalities, which could have meant genuinely removing the most significant trade barriers between the province and Great Britain. The bill also proposed to remove the ECJ’s jurisdiction completely, whereas the current rumoured deal would leave Northern Ireland subject to both new and existing EU law. 

It’s possible, of course, that the media reports are not accurate. If they are, an agreement may involve the EU adopting some of the UK government’s language in order to secure the arrangements that it wanted anyway. 

The deal would do nothing to dilute the EU’s power-grab over part of the UK

If a green lane resembled Brussels’ proposals, then British companies doing business in Ulster would still face customs paperwork and single market regulation. The deal would do nothing to dilute the EU’s power-grab over part of the UK.

It could be that the government is being subjected to scurrilous briefing, either by civil servants who are keen to reach an agreement, or EU negotiators who wish to steer the talks in their direction. The protocol created practical issues for businesses in Ulster and Brussels, and some would like to pretend that these are its only implications. Its biggest, most intractable problems were always constitutional, however. 

These problems included the EU’s continuing authority over huge aspects of life in Northern Ireland, single market rules, the jurisdiction of the ECJ, the province’s estrangement from UK tax and state aid rules, and the attempt to railroad it into economic alignment with the Republic of Ireland rather than Great Britain. The Supreme Court confirmed this week that the protocol conflicted with parts of the Act of Union that put Northern Ireland on “the same footing” as Great Britain for trade. When it implemented the Irish Sea border, the court held, the government set aside the need for cross community support that was at the heart of the Belfast Agreement.

Throughout the Brexit negotiations, Brussels used Northern Ireland ruthlessly, to try to force the entire UK to remain tied closely to its single market and customs union. It didn’t care about political stability in the province and understood little about the “peace process” that it said it wanted to protect. 

The Conservative and Unionist government, to its shame, did nothing to prevent this and often seemed more preoccupied with the sensibilities of Irish separatists than protecting Northern Ireland’s place in the UK. It eventually sacrificed the province and the Union quite cynically to push through Brexit. 

The only redeeming aspect of its behaviour was that it regretted the protocol in retrospect and seemed to be making a genuine effort to rectify the damage it caused. If Rishi Sunak agrees to a deal that does not address the constitutional problems with the Irish Sea border, the negotiations and the NI Protocol Bill will have been a colossal waste of time and effort. 

In those circumstances, an agreement with the EU will do nothing to disguise or mitigate the actions of a government that was supposed to cherish the Union, but ended up butchering it.