The Protocol on Ireland/Northern Ireland is an attempt to address the challenges that Brexit poses for the ‘unique circumstances’ on the island of Ireland and avoid a hard border. As such, it has established for Northern Ireland a unique position in the post-Brexit UK-EU relationship and one defined not just by the terms of the Protocol but also those of the wider UK-EU relationship, primarily the Trade and Cooperation Agreement (TCA). The interaction between the Protocol and the TCA remains under-explored in existing studies of the UK’s post-Brexit relationship with the EU, despite the fact that it can be a source of both tension and opportunities for resolving issues concerning the effects of that relationship on Northern Ireland. This panel explores three dimensions to the interaction: the implications for trade and the challenges for unique trading position that Northern Ireland occupies and how some of the tensions might be resolved; the regulatory tensions that result from the alignment with the EU in the Protocol and the logic of divergence inherent in the TCA and, again, how these can be managed; and the governance challenges and opportunities that arise from the establishment and now operation and potential adaption of the institutional frameworks established for the Protocol and the TCA.

The Protocol on Ireland/Northern Ireland governs the trading regime for goods applicable to Northern Ireland following the UK’s decision to withdraw from the European Union (EU). Since its entry into force, the Protocol has been the subject of much criticism, not least because some hold it responsible for the application of new barriers to trade in goods between Great Britain (GB) and Northern Ireland (NI). This paper contends, however, that any assessment of the trade-related implications of the Protocol must also take onto account another international legal instrument governing the EU-UK post-Brexit trade relationship, namely the EU-UK Trade and Cooperation Agreement (TCA). The paper examines the relationship between the Protocol and the TCA, how their interaction has exacerbated post-Brexit barriers to trade between GB and Northern Ireland and argues that a renegotiation of the TCA may offer the best opportunity to address many of the post-Brexit GB-NI trade frictions that have proved so controversial.

Agreed as part of the UK-EU Withdrawal Agreement to address the ‘unique circumstances’ on the island of Ireland, the Protocol on Ireland/Northern Ireland puts Northern Ireland in a position of dynamic regulatory alignment with a specific body of EU law primarily (but not exclusively) relating to trade in goods and participation in energy and electricity markets. While the Protocol establishes arrangements for Northern Ireland that are novel in relation to both EU external relations and UK internal governance, the circumstances of its implementation are also without precedent. The alignment of Northern Ireland with the EU acquis under the Protocol exists in the context of a broader UK-EU relationship which is, under the Trade and Cooperation Agreement, orientated towards divergence, as well as being situated within the newly (at least potentially) deregulatory setting of the internal market of the UK.

Against this background, this paper presents an analysis of the complex and overlapping regulatory pressures that exist in post-Brexit Northern Ireland. The first section reviews the legal/policy outcomes arising so far from: (i) dynamic regulatory alignment under the Protocol; (ii) UK-EU regulatory divergence under the TCA; and (iii) UK domestic regulatory strategies. The second section of the paper considers the regulatory environment of post-Brexit Northern Ireland in the round and identifies actual and potential tensions that arise from its bespoke position both within and between the regulatory orders of the UK and EU. The paper concludes by proposing a series of possible means of mitigating and/or managing Northern Ireland’s newfound regulatory dynamism.

Implementation of the Protocol on Ireland/Northern Ireland has proved to be one of the most contested and problematic aspects of the UK’s withdrawal from the European Union (EU). While many of the most discussed challenges relate to the movement of goods and the tensions created by the interaction between the Protocol and the wider UK-EU trading arrangements under the Trade and Cooperation Agreement (TCA), questions concerning the governance arrangements for the Protocol have also attracted attention. Much of the political focus has been on two issues: the role of the Court of Justice of the EU and the ‘democratic deficit’ inherent in the Protocol’s arrangements for dynamic regulatory alignment of the UK ‘in respect of Northern Ireland’ with aspects of the EU acquis. At a more practical level, the establishment and operation of the bilateral UK-EU arrangements for managing the Protocol and the TCA as well as the internal UK arrangements for managing implementation have also not been without their challenges, particularly when set against questions of representation, transparency and legitimacy. This paper analyses the structure and operation of the formal governance arrangements for the Protocol and the TCA, the governance questions and challenges raised in or arising from the operation of the Protocol and the TCA and the extent to which institutional arrangement have afforded opportunities for voices from Northern Ireland to be heard. A third section considers the measures that have been proposed and adopted to address the shortcomings of the governance arrangements (e.g. regarding parliamentary scrutiny, increased transparency, formalized stakeholder engagement) before a final section identifies outstanding issues and options for enhancing the effectiveness and legitimacy of the governance arrangements for the Protocol whether through its institutional structures or those of the TCA.