Northern Ireland Protocol version 56

Catherine Barnard | Oct 2021

The vote to leave the EU was always going to present a problem for Northern Ireland (NI). NI was the only part of UK with a land border with the EU. And the EU was worried about preserving its single market from the import of goods that did not meet its standards. However, the Good Friday Agreement (GFA) was seen as prohibiting any border infrastructure between the North and the South of Ireland where checks could be carried out.

With hindsight, the GFA was the work of genius. When both the UK and Ireland were in the EU single market and customs union the border controls could be removed and goods and people could move freely as if they were in a single state. This kept the Nationalists broadly happy. Yet the six counties of the North remained legally part of the UK, thereby keeping the Unionists (reasonably) happy. This situation maintained until 2016. NI voted remain (albeit the majority party in the NI Assembly, the DUP, advocated leave.)

The EU understood the gravity of the situation in NI. It made clear that finding a solution to the border issue needed to be resolved as part of the divorce negotiations (the Withdrawal Agreement); it couldn’t wait to the conclusion of the future trading agreement, the Trade and Cooperation Agreement (TCA), in part because the EU did not trust the UK not to use peace in Northern Ireland as a lever in the final days of the negotiations for the TCA.

Commentators have talked of the ‘Brexit trilemma’ on the border issue:

  • The UK stays in the single market and customs union and so no border (not acceptable to the Johnson government);
  • There’s a hard border North-South (this upsets the Nationalists)
  • There’s a hard border East-West ie down the Irish sea (this upsets the Unionists)

There was in fact a fourth option which some Brexiters still advocate – Ireland leaving the customs union and single market or a hard border between Ireland and the EU. Neither appears to be on the cards.

In October 2020 Boris Johnson agreed the Northern Ireland protocol (NIP). In essence he opted for option 2. There were mutterings at the time that Boris Johnson accepted the deal because he wanted to ‘get Brexit done’ but that he would try to unpick it later. Recent tweets by Dominic Cummings suggest that this was, in fact, the plan.

When the UK left the EU, the practicalities of operating the NIP have come to light. In particular there have been issues over grace periods concerning, for example, the import of chilled meets (so-called ‘sausage gate’). When the UK unilaterally extended the grace periods, the EU started enforcement proceedings against the UK, which could have ended up in the ECJ. Subsequently, the EU suspended its legal action in the hope that some sort of solution could be reached.

In July the UK issued a White Paper, setting out its concerns about the NIP. In essence, they boiled down to the fact that the UK thought that NI was too much in the EU customs union than in the UK’s internal market. They thought the conditions had been met to start the Article 16 process, the safeguard clause which allows one party to suspend parts of the Protocol in the event of trade diversion, but were not prepared to do so yet. They also wanted changes in respect of checks on GB goods going into NI, removing the role of the Court of Justice, and greater participation by the people of Northern Ireland in rules that were going to affect them.

The Lord Frost gave his speech this week. Despite the emollient tone, the language was in fact tough and uncompromising. He wants to replace the whole Protocol with a new document (he has sent a new text to the EU) and, most importantly, he wants to remove any role for the ECJ. The next day, the EU published its own package of proposals. The headlines were encouraging: 80% reduction in checks on food, plant and animal health checks, 50% reduction in paperwork in respect of customs formalities, uninterrupted security of supply of medicines and enhanced engagement with NI stakeholders and authorities. However, the detail in key areas such as flexible customs formalities is thin and dependent on considerable action on the part of the UK. The changes proposed on governance are also quite minimal and there is no reference to the role of the ECJ.

This may well mean that despite UK insistence that it will look at the proposals carefully, it will ultimately reject them and decide to start the Article 16 process in November. There is a possible landing zone for negotiations: the EU has moved quite a long way and the UK could meet them somewhere in the middle. But the politics might not allow the Johnson government to do that. He may want a further fight with the EU and the EU has already rolled the pitch for a concerted, unified response.