24 May 2022

EU-UKForum: Where next with the Protocol on Ireland/Northern Ireland?

What intrigues many is not just the detail of the proposals but how the UK government thinks it can legislate to introduce changes to the Protocol unilaterally without breaching its obligations under the Withdrawal Agreement.

The announcement on 17 May by the UK Foreign Secretary, Liz Truss, that she will be introducing legislation to ‘make changes to the Protocol’ and ones that would be ‘consistent with our obligations in international law’ has understandably raised a few eyebrows.

The bill is expected in the coming weeks and will include – so we have been told – measures to ensure goods moving from Great Britain into and remaining in Northern Ireland will be ‘freed of unnecessary bureaucracy’ through use of a ‘green channel’ system and revisions to the governance arrangements for the Protocol.

What intrigues many is not just the detail of the proposals but how the UK government thinks it can legislate to introduce changes to the Protocol unilaterally without breaching its obligations under the Withdrawal Agreement. Some may think the move is simply tactical and designed to put pressure on the EU in discussions over the Protocol.

The reaction of the European Commission to the announcement contained no surprises. If the UK were to table legislation disapplying provisions of the Protocol, then the EU would have to respond with ‘all measures at its disposal’. More eye-catching – but in many respects understandable given that we have been here before in 2020 with the UK Internal Market bill – was the prompt and public reaction of the German government: ‘Unilateral actions are not acceptable’.

Exactly, what the EU would do if the UK did act unilaterally was not stated, but the options range from an immediate more rigorous implementation of checks and controls on imports from Great Britain into the EU to partial suspension of if not withdrawal from the Trade and Cooperation Agreement, hence worse case scenarios of a ‘trade war’.

Whether and when there will be a need for measures, only time will tell. Suffice to say, despite the combative rhetoric of recent weeks and months and persistent calls Article 16 to be triggered and unilateral safeguard measures to be taken, any such action seems some months off. Truss’ bill could take up to a year to get through parliament and will certainly face opposition.  A bumpy ride is assured.

The optimistic view is that in pursuing domestic legislation to deliver unilateral action the likelihood of the UK (ab)using Article 16 and adopting unilateral safeguard decreases and time is created for the UK and the EU to revitalize discussions on resolving outstanding issues regarding the implementation of the Protocol and find the ‘sensible landing spot’ that Boris Johnson claims exists.

Both the UK and the EU have been at pains recently to stress their commitment to ‘negotiated’ and ‘joint’ solutions, even if their starting points remain different: the EU working within the Protocol and based on its proposals presented in October 2021, the UK seeking to overhaul the Protocol based on its Command Paper from July 2021.

Despite such differences, Truss’ proposed meeting of the EU-UK Joint Committee to discuss ‘further talks’ – and so utilise the institutional framework of the Protocol as opposed to the extra-institutional approach preferred by Truss’ predecessor, David Frost – is to be welcomed. It reinforces the argument that the UK government is not actually looking to ‘ditch’ or ‘scrap’ the Protocol.

This is despite calls for it to do so from unionist opponents in Northern Ireland, whose concerns about the implications of the Protocol for Northern Ireland’s position in the United Kingdom need to be addressed if the Democratic Unionist Party (DUP) is to join Sinn Féin and others in a new power-sharing Executive following the recent elections to the Northern Ireland Assembly.

The DUP’s leader, Jeffrey Donaldson, is refusing to nominate a deputy First Minister until the UK government has taken ‘decisive action’ on the Protocol and delivered on a previous commitment to ‘legislate to respect and protect Northern Ireland’s place within the UK internal market’. Truss’ bill, if enacted, may deliver that, but at the obvious and serious risk of triggering a response from the EU that could be costly economically, and for both sides.

Truss’ announcement of proposed legislation actually solves nothing; essentially it is no more than the latest stage in UK government attempts to resolve the tensions and contradictions arising from the choices it made in abandoning the ‘backstop’ Protocol and opting for post-Brexit trading relationship in the Trade and Cooperation Agreement with the EU that failed to mitigate the effects its ‘renegotiated’ Protocol would have for the movement of goods between Great Britain and Northern Ireland.

Attempts to re-write the history of the withdrawal negotiations are cutting little ice with informed observers. Such accounts may go down well with many ardent Brexiteers and those seeking to ignore the choices that were made. They are also handy for ministers. The problem is they often simply do not stack up for those who were paying close attention to the negotiations. And the UK government’s own assessments lay bare the fact that it knew the consequences of its actions.

Both the UK and the EU are now aware of difficulties and challenges that arise from the choices made in agreeing the Protocol and the TCA. They have also both been engaging with stakeholders in Northern Ireland to identify issues and potential solutions. And a problem-solving approach has delivered some results, most significantly on arrangements for the continued supply of medicines into Northern Ireland. And it could easily deliver more.

The UK and the EU also know that there is majority support among voters in Northern Ireland for resolving outstanding issues with the Protocol and making its unique market access arrangements work. The results of the recent Northern Ireland Assembly elections show this, as does opinion polling data. Given the composition of the new Northern Ireland Assembly, and based on current positions, there will probably be a simple majority for the continued application of the Protocol in the ‘democratic consent’ vote that will take place in late 2024.

The optimum outcome for the UK and the EU would, however, be cross-community support, so with unionists – currently opposes – supporting continued application. For the UK government, however, this requires a ‘reformed’ Protocol that removes formalities, checks and controls on goods moving from Great Britain into and remaining in Northern Ireland, so addressing the core unionist concern.

With the EU continuing to dismiss the option of renegotiating the Protocol and resistant to much of what the UK has been proposing based on its 2021 Northern Ireland Protocol – Next Steps paper, and the UK dismissing the European Commission’s October 2021 proposals as insufficient, there is little optimism around a resolution.

And in the absence of a resolution, the contestation around the Protocol will continue: at a local level in Northern Ireland thus almost certainly hindering the formation of a new Executive; within the UK government between those intent on removing as much as possible of the Protocol and those working with the EU to deliver solutions; and at the UK-EU level where trust remains in remarkably short supply.

Will there ever be a quiet period when then Protocol on Ireland/Northern Ireland is not grabbing headlines and eating up diplomatic capital? There may well be. But it’s hard to see it coming anytime soon.

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