In July Her Majesty’s Government published its command paper on how to resolve ongoing issues with the operation of the Northern Ireland Protocol. The EU responded promptly rejecting any renegotiation of the Protocol and, as it prepares to publish its own ‘solutions’ in the winter, continues to do so.

Since its introduction in January 2021, the Protocol, which creates a trade border for goods between Northern Ireland and Great Britain, has presented significant challenges to the Province’s people and businesses. One doesn’t need to look hard for problems. The Northern Ireland Executive has estimated that 20 per cent of total EU checks are occurring on the sea border despite representing only 0.5 per cent of its population. The respected economist Esmond Birnie has calculated that the sea border is costing Northern Ireland £850m a year.

The chair of Marks & Spencer revealed that the business has decided to pull many of its Christmas products

Recently the province’s Jewish community complained they were having difficulty obtaining kosher food, and the large supermarkets have again warned of shortages or withdrawals of certain products and an increase in prices. On the same day as the Government published its paper Archie Norman, the chair of Marks & Spencer, revealed that the business has decided to pull many of its Christmas products from its food stores in Ulster and warned of worse to come.

There have also been reports that up to two thousand medicines will be withdrawn from the National Health Service when the ‘grace period’ ends. Food and medicine may have become the most prominent problems, but there are many others and they are likely to increase.

The Protocol in its current form arose from the febrile events at Westminster in September and October 2019. Up against the Benn Act, Boris Johnson, who previously declared that he would never agree to a sea border, lamentably did just that.

But it did not come from nowhere. It was the result of attempts in the previous two years to secure a high-alignment agreement between the UK and EU. Its predecessor was the ‘backstop’ which, like the current protocol, required Northern Ireland to essentially remain part of the EU single market and customs union regardless of what the rest of the United Kingdom did.

This extraordinary idea was made possible by many local politicians and business lobbyists, who loudly supported it in the context of the UK’s exit from the EU. Another vital element, however, was the intellectual support it received from some academics.

One such was Katy Hayward, now Professor of Political Sociology at Queen’s University Belfast. During the negotiations she emerged as one of the chief explainers of ‘the consequences’ of Brexit for Northern Ireland. A complex issue to be sure — but one that favoured high-alignment or a border in the Irish Sea.

In her new book What Do We Know and What Should We Do About the Irish Border?, Hayward returns to the subject, this time setting the border in the wider context of its history and its potential future.

The book repeats many of the claims that justified the Protocol and does nothing to advance a solution

Yet for this, the book is an opportunity to repeat many of the claims that justified the Protocol and does nothing to advance a solution to the problem except implementing it.

It is indisputable that the existence of the border is contested. But under the Belfast Agreement it was agreed that Northern Ireland would remain in political union with Great Britain so long as its people desire it.

Yet in the post-referendum period an Irish nationalist understanding of the border gained ascendency over its unionist counterparts. It was made to seem more reasonable to prioritise north-south trade over the much more significant east-west.

Hayward’s contextualisation only serves to reinforce this understanding of the border. When she says, “it is not possible to understand the Irish border without understanding unionism”, it is unionism that is being asked to explain why the island is not a single political entity.

At one point she rightly claims that there are no natural borders and, therefore, no natural states. But when she speaks of the endurance of the border marking a century of partition one gets the sense that there may be an exception. Her lapsing into the use of ‘arbitrary’ to describe Northern Ireland’s border would certainly seem more at home in Irish nationalist polemics than in a sober academic assessment of it.

Similarly, the rehearsal of the historiographical landscape is also largely negative for unionism, with significant writers friendlier to unionist claims absent. A consequence of this is that unionism appears to lack justification. The best unionists can hope for, it seems, per Diarmaid Ferriter and others, is a psychological partition based on an Ulster distinctiveness that holds the nation apart.

When we get to the issue of Brexit and the European Union, it is in a chapter entitled ‘What do we know?’

What the Belfast Agreement said became a central point of issue during the negotiations. Many have insisted, and still insist, that what we know about Brexit is that leaving the EU breaches the Agreement. Hayward stops short of this but argues that the EU helped to create the conditions for it.

In either case this supposed necessity became the basis on which the backstop — and hence the Irish Sea border — was justified. The Agreement guaranteed an open border and Brexit threatened to put checks on it.

Infamously and disgracefully, this was supported by the use of the threat of violence from republican terrorists

Infamously and disgracefully, this was supported by the use of the threat of violence from republican terrorists on border infrastructure (that everyone said they would not build in the event of no deal).

Rather than say this directly, Hayward does so obliquely in the section on ‘The Troubles’. It is the attempts of the army to secure the border from terrorists moving in and out of the Irish republic that leads to the increase in border incidents.

Any account of what led to the Agreement will be complex, and so too any account of its causes and conditions, but there are at least two reasons why one can think the role of the EU is massively overstated.

First, principal negotiators of the Agreement, like Lord Trimble, deny it. Second, the text itself does not reflect it. There are areas of north-south cooperation in Strand 2, but these do not require EU membership or anything like it.

The EU, for its part, was only too glad to talk up its role in the Agreement and made (and makes) many professions of being committed to protecting it. Hayward seems to take this at face value but we really should doubt their sincerity.

Earlier this year, for example, the EU Commission was in the process of triggering article 16 of the Protocol to prevent Northern Ireland being a backdoor to their vaccine export ban to the UK. This was against all their prior heart-warming claims on the border. Cue howls. It later (that evening) turned out to have been “accidentally” included in the text. Sincere indeed.

In more recent months the Commission has blithely dismissed unionist opposition to the Protocol and its consequences for the Agreement. Sir Jeffrey Donaldson’s claim he will collapse the political institutions the Agreement created if the Protocol is not resolved has been met with the same robotic response – “the Protocol is the only way to protect the Agreement.”

They ignored unionists during the negotiations and they continue to do. So yes, we should doubt their sincerity

They ignored unionists during the negotiations and they continue to do. So yes, we should doubt their sincerity.

If the Belfast Agreement depending on the EU was one confection, the other is protecting the integrity of the EU single market. The EU insists that checks at the border are required to do this. Hayward agrees. There is no alternative, checks are the consequence of Brexit, and alternative arrangements should sink in the sea.

From a pure risk perspective, the emphasis on this issue is absurd. The trade between Northern Ireland and the Irish republic is a total irrelevance in Single Market terms, certainly in comparison to the far greater trade through the Union’s main ports.

Moreover, as Pieter Cleppe recently argued for The Critic, these are leaking like a sieve due to the tiny number of checks — yet the EU does not appear to be as hysterical about the integrity of its market there as it is about the movement of sausages within the British Isles.

The other issue is rules. Fine. But don’t pretend that these can’t be changed or that the EU has anything other than a loose attachment to them, an attachment correlated with when it does and does not suit its interests. Her Majesty’s Government, through the UK Internal Market Act, guaranteed the free movement of goods from Northern Ireland to Great Britain when the Protocol meant that they are in different regulatory and custom regimes. It can be done.

Notably, in its command paper the Government pointed out that since this came into effect it had observed minimal impact and accepted the risk. That the EU has not done something similarly pragmatic, despite its deeply held concern for the “unique circumstances of the island of Ireland”, is pure politics.

From the beginning of the Brexit process the EU’s objective, and the objective of many others across these islands, has been to secure as much British alignment with its rules as possible. They have used the Belfast Agreement, the UK’s border with the Irish republic, and now the Protocol to do so.

It is no surprise that the EU’s solution to the many problems the protocol has created for Northern Ireland is dynamic alignment with its rules, medicines being the latest example. Once again, this is supported by many local voices. Barely a day goes by that the Member of Parliament for North Down does not call for alignment as the solution to the EU’s willingness to block shipments of food and medicine from the mainland to Ulster.

Of course, it is the EU’s prerogative to pursue what it takes to be in its interest. But as the problems with the Protocol proliferate, it would be good if our own politicians and civil society stopped helping the EU to do so. Hayward’s book, alas, stands firmly in that unfortunate tradition.