Is there an end to the EU-UK protocol row?

Quietly, with little fanfare, unnoticed generally given the events that are dominating the headlines focused on Ukraine and affect much of Europe, Leo Varadkar took over the helm of the Irish coalition government, succeeding Michéal Martin as Taoiseach — pronounced Tee-shock, and translates from Gaelic as ‘cheftain’.

Varadkar, you might remember, had previously been Taoiseach when the coronavirus pandemic hit Ireland in March, 2020. As a result of poor general election showing, his Fine Gael party entered into a new coalition agreement with Martin’s Fianna Fail party, and the two men agreed to rotate the office in an agreement that was historic and groundbreaking — even more so if you consider the events that occurred in Washington and Brasilia when it came to contested election results.

The return of Varadkar came weeks after Rishi Sunak became the UK’s third prime minister of 2022, perhaps offering an opportunity for the two men to reset Anglo-Irish relations and allow for some progress to be made on the perennial issue of governing Northern Ireland and trying to iron out the deep disagreements over the so-called protocol that is such a bone of contention between London and the European Union.

Varadkar’s hand in Brexit negotiations

By way of reminder, when Boris Johnson was prime minister, he agreed that Scotland, England and Wales should be entirely out of the customs area of the EU, while Northern Ireland, across the Irish Sea from the rest of the island of Great Britain, should remain inside the EU customs regime. That went down like a lead balloon with the loyalist or unionists in the British-ruled province that want it to remain part of the UK. Irish nationalists want the province to be returned to the Republic of Ireland to the south, which has been independent since the island was divided in 1921.

Varadkar is a deft hand in dealing with both London and Brussels, and it was he who was the very public face of the Brexit negotiations that lasted for an eternity in the four years after the Brexit referendum and while Theresa May was the UK prime minister.

Varadkar, like Sunak, is of Indian heritage, and both Sunak and he are of a similar age, sharing broadly social conservative principles. The Taoiseach too had a good working relationship with Johnson and the two together came up with the idea of the protocol in an attempt to avoid a hard border in Ireland between Northern Ireland and the Republic. That hard border would have meant the return of security, customs and passport checks — anathema to both moderate and hardline Irish nationalists and a start reminder of the dark days of violence that claimed some 3,600 lives and injured 36,000 more over three decades of political and sectarian violence.

That violence ended formally with the signing of the Good Friday Agreement in 1998. As good fortune would have it, the 25th anniversary of the milestone agreement occurs in April — a very discernible target for many of the problems over the protocol to be solved by then.

The agreement also allowed for the establishment of a unique power-sharing government at Stormont, just to the south of Belfast.

Right now, that power-sharing government isn’t functioning, in part because unionists are refusing to play any part in it while the protocol remains in place. For the first time ever too, nationalists are in a majority in the Stormont assembly, and Sinn Fein is trying to take office in Northern Ireland, boosting its credentials in the Republic of Ireland when a new general election is called over the next couple of years.

So, in a nutshell, the thinking in London, Dublin and Brussels is, if you can fix the problems with the protocol, everything will fall into place in Northern Ireland.

If only things happened like that.

The whole protocol issue means that any concessions by Sunak will result in Brexit hardliners coming out of the woodwork to claim that it’s a sell-out of that Brexit referendum mandate.

Sunak has little wriggle room. But little wriggle room translates as some wriggle room. And with Varadkar knowing the issue inside out, he’s also ideally placed to facilitate creative solutions that would appease both London and Brussels.

What’s the future role of the European Court of Justice?

Already, the UK and EU have agreed on a new data-sharing programme, one that if fully embraced, would allow trucks carrying goods from Britain to Northern Irish ports to use ‘green’ or ‘red’ channels, much as air passengers use before leaving airports.

It’s not there yet, but that is the potential.

The real sticking point is what the future role might be for the European Court of Justice when it comes to arbitration and legal interpretation or issues that might arise. For Brexiteers, the ECJ is a red rag to a bull, and they will have no part in having an European institution with powers over UK law.

Maybe Sunak and Varadkar can come up with a creative dispute-resolution formula to find a way forward.

That April deadline for the 25th anniversary of the Good Friday Agreement is looming large, and what better way of celebrating its own creative solutions that by coming up with a new one to end this protracted protocol row.