The Future of the NI Protocol & Protocol Bill, with Katy Hayward (QUB), Andrew McCormick (former NIO) & David O'Sullivan (IIEA)

What next for the Protocol?

Our first in-person panel looked at the ongoing political rancour over the Protocol on Ireland/Northern Ireland and the proposed Northern Ireland Protocol Bill via a panel of experts – Dr Andrew McCormick, former lead official on Brexit for the Northern Ireland Executive, David O’Sullivan, Director General of the Institute for International and European Affairs (IIEA) thinktank, and Professor Katy Hayward, professor of Political Sociology at Queen’s University Belfast. The panel was chaired by Niamh Gallagher, Associate Professor in British and Irish History at the University of Cambridge.

Could the chaos have been avoided if Northern Ireland’s politicians had been included in the EU negotiations? Was the Brexit referendum ever compatible with the Good Friday Agreement? What do concepts like consent and sovereignty mean on the island of Ireland? Has the Good Friday Agreement been damaged? And we consider how trust can be rebuilt between Westminster, Dublin, and Belfast.

Scroll on to discover

• Executive summary
• About the speaker
• Watch the conversation
• What was said?

Executive summary

• The panellists were divided over whether the Protocol or Protocol Bill disrupted the Good Friday Agreement.

  • Andrew McCormick highlighted how Brexit did not properly account for the concepts of self-determination that the Good Friday Agreement had cemented. The Good Friday Agreement gave Northern Ireland the right to decide its constitutional future but the Protocol Bill reverts this and references the Act of Union as the overarching power.

  • Katy Hayward noted that the ‘zero sum analysis’ that has emerged regarding Brexit is deeply unhelpful to any peace process which actively tries to move away from such binary framings.

  • David O’Sullivan argued that the damage to the Good Friday Agreement and peace was foreseeable from the beginning of the Brexit process as it brought tensions and questions of borders back to the table, something that the Good Friday Agreement had put to bed.

  • Niamh Gallagher, as chair, commented later that the Protocol did not in fact disrupt the Good Friday Agreement as it maintains the central principle of parity of esteem, something which the proposed Protocol Bill does not do.

• Any deal moving forwards would require a considerable rebuilding of trust both between the UK and EU, and between Northern Ireland and Westminster. It was felt that the UK has worked consistently in bad faith on negotiations regarding Northern Ireland and that this has contributed to the polarisation of the debate.

• David O’Sullivan and Andrew McCormick noted that inclusion is important and that by making the Protocol a ‘Westminster’ decision, rather than something that included Northern Ireland’s representatives, was unhelpful.

• Katy Hayward argued that Rishi Sunak will have to stand up to the ERG and not let ideology lead decision-making, but base it upon evidence.

About the speakers

• David O'Sullivan is the IIEA Director General. David has formerly served as the Secretary General of the European Commission, the Ambassador of the European Union Delegation to the United States, and as the Chief Operating Office of the EU's diplomatic service.
• Chair Dr Niamh Gallagher is a Fellow of St Catharine's College and Lecturer in Modern British and Irish History at the University of Cambridge. She has published widely on the history of these islands and notable publications include Ireland and the Great War: A Social and Political History (Bloomsbury, 2019), winner of the Royal Historical Society's Whitfield Prize, and The Political Thought of the Irish Revolution (Cambridge, 2022).
• Dr Andrew McCormick is the former lead official on Brexit for the Northern Ireland Executive. He also served as the Director General of International Relations for the Executive and represented the Executive at the Specialised Committee on the Protocol.
• Professor Katy Hayward is a Professor of Political Sociology at Queen's University Belfast and Senior Fellow of the UK in a Changing Europe thinktank, where she leads a major ESRC-funded project on the topic of the future and status of Northern Ireland after Brexit.

Watch the discussion

What was said?

Bringing together their considerable expertise in EU, UK, and international affairs, the panel offered their opinions on a variety of aspects of the Protocol and the Protocol Bill, such as the legal wording and implications, the conduct of governments in negotiations, the reality of the operation of the Protocol, and the consequences for the Good Friday Agreement.

One of the recurring themes of the discussion was what consent meant, and how the Protocol had altered the assumptions of consent that the Good Friday Agreement was built on. Dr McCormick explained how the concepts of consent and self-determination ran through the fundamentals of the Union, partition, the Troubles, the Good Friday Agreement and Brexit. What is the unit of determination? Who has the right to exercise self-determination? McCormick noted that it was the Good Friday Agreement that put this question to bed for the first time. The island of Ireland voted together as a unit in 1998 in referenda that decided that for the future, Northern Ireland would be its own unit of self-determination. Brexit didn’t account for the relationship between Northern Ireland and the rest of the UK when it made another declaration of self-determination and the Protocol Bill reverted to a system of imposition. As McCormick explained, the reference to the power of the Act of Union in the legal text of the Protocol Bill is a ‘demonstrable contradiction’ of the Good Friday Agreement, the Act of Union being a demonstration of sovereignty reflecting power rather than rights or consent.

The nature and faith in which negotiations happened was lamented upon. Katy Hayward commented that the UK government had failed to listen to stakeholders and businesses from the beginning of the operation of the Protocol, who were keen to share and engage with problem-solving. McCormick noted that there is an ‘enormous gulf’ between the Protocol as it stands and the expectations of unionists resulting from the Protocol Bill. Hayward stressed that as the UK government had used unionist opposition to their own gain in ‘cynical’ and ‘dangerous’ ways, it would be a difficult job to now present any deal or compromise on the Protocol as anything but a 'betrayal'. David O’Sullivan echoed this point in his comments that Rishi Sunak will be able to sell a deal to his own party, but selling it to the DUP after ‘walking them up the hill’ would be another matter. Trust is now also a problem – O’Sullivan accused the UK government of working in ‘consistently bad faith’ ever since the beginning of the Protocol. McCormick made a similar point in detailing inconsistencies in what the Protocol says and what the DUP claim ministers promised them.

The biggest question of the night was what impact has this had on the Good Friday Agreement? The panellists felt that the Agreement has been damaged and disrupted in a number of ways. Hayward argued that the ‘zero sum analysis’ of Brexit and the Protocol was a deeply unhelpful framing in which to work towards peace – a process which explicitly works away from such binaries. She also argued that the UK government had polarised debate. O’Sullivan claimed that the DUP leaving the Northern Ireland Executive over the Protocol was the ‘ultimate contamination’ of the Agreement. Tragically, he said, Brexit damaging the Agreement was entirely predictable from the beginning, as leaving the EU meant there would have to be a border, and the Good Friday Agreement had removed the tension and contentious question of a border on the island of Irelan. References to the Act of Union returned to a power that was biased in favour of one community and therefore went against the UK government’s obligation to exercise power with ‘rigorous impartiality’ in Northern Ireland, as set down by the Good Friday Agreement.

The panel were not pessimistic about the future of the Protocol and the Protocol Bill, however, but gave the impression that there was room for hope regarding a solution. There was agreement that Liz Truss’s fall from power had given Rishi Sunak a window in which to push for a deal with the EU, and that Boris Johnson’s departure from front-line politics was positive for Northern Ireland. What is needed, they concluded, is understanding, listening, and most importantly, courageous leadership from all involved to forge a more positive path forward.