Post-Brexit dynamism: the dynamic regulatory alignment of Northern Ireland under the Protocol on Ireland/Northern Ireland

Abstract

Post-Brexit Northern Ireland faces a dual challenge of legal dynamism and political stagnation. Although these two issues have the same origin, this article focuses on the former. Agreed as part of the UK–EU Withdrawal Agreement to address the ‘unique circumstances’ on the island of Ireland, the provisions of the Protocol on Ireland/Northern Ireland break with precedent in both EU external relations and in UK internal governance. For the EU, these novel provisions breach the ‘indivisibility’ of the ‘Four Freedoms’. For the UK, the Protocol challenges the fabric of its internal market and pushes the boundaries of its territorial constitution to a new extreme. The Protocol is politically controversial; related disputes have resulted in institutional collapse in Northern Ireland and severe decline in UK–EU diplomatic relations. While any resolution of political contestation over the Protocol is still pending, it is nonetheless possible to track its legal effects so far. Focusing on provisions which relate to Northern Ireland staying aligned with aspects of EU law, this article analyses the substance of UK(NI)’s post-Brexit dynamism and its implications for the two legal orders it cross-sects.