Fixing the problems with the Northern Ireland protocol may have just got even harder

The government’s attempts to renegotiate the substance of what was agreed with the EU could be counterproductive

July 22, 2021
Is David Frost's tough stance likely to yield results? Photo: PA Images / Alamy Stock Photo
Is David Frost's tough stance likely to yield results? Photo: PA Images / Alamy Stock Photo

More than six months since the UK left the Brexit transition period, the Northern Ireland Protocol remains the thorn in the side of the UK-EU relationship. The UK has just published new proposals to try to resolve some of the issues that have been thrown up since the beginning of the year. But rather than proposing technical tweaks within the spirit of the protocol agreed in October 2019, the UK is now calling for what is essentially a wholesale renegotiation of the treaty—including the arrangements governing it.

The EU has already ruled this out. So where do we go from here, and how much further compromise is possible?

The protocol was designed to prevent a hard land border on the island of Ireland and instead puts the customs and regulatory border down the Irish sea, with new paperwork and checks required on goods moving from Great Britain into Northern Ireland. Making the protocol work was always going to require political movement on both sides: as the government’s latest paper points out, the burden of checks seems disproportionate to the size of Northern Ireland in comparison to the rest of the EU single market and, therefore, to the risk that goods circulating there really pose. But this latest proposal from the UK completely fails to acknowledge the fact that the British government not only knew what it was signing up for—it asked for it.

Back in October 2019, when the prime minister wrote to then-president of the European Commission, Jean-Claude Juncker, setting out his proposals to renegotiate Theresa May’s “backstop,” he himself proposed an “all-island regulatory zone on the island of Ireland, covering all goods including agri-food.” The accompanying explanatory notes made clear that this would mean “identity and documentary checks and physical examination by UK authorities as required by the relevant EU rules” on all agri-food goods entering Northern Ireland from Great Britain, and regulatory checks “in line with relevant EU law” for all other goods.

And the implications of the protocol were also well understood within the UK government. The impact assessment for the legislation implementing the protocol stated that the new agri-food checks and processes “would introduce additional costs, both from one-off familiarisation and ongoing compliance, to businesses compared to current arrangements.” That these new costs would place particular burdens on small businesses, potentially be passed on to consumers, and affect supply chains across Great Britain and Northern Ireland were all clearly identified as risks of the new arrangements.

However, the command paper just published by the government completely ignores this reality. Before stating the proposals themselves, the government has chosen to focus in on the history of the negotiations—in particular, the decisions made by May’s government and the role of parliament in September 2019 in forcing Boris Johnson’s hand. Although it is true that the Johnson government had to pick up negotiations two and a half years in, and that parliament was putting pressure on the government to avoid a no-deal exit, it was a political decision to prioritise getting a deal at any cost over taking the time to ensure it met the needs of the UK.

That is not to say that the UK doesn’t have a point when it says the checks and processes designed for international trade are becoming excessively burdensome when applied to the nature and volume of goods moving from Great Britain into Northern Ireland. The paper sets out clearly some of the impacts that have already been felt, including how three-quarters of Northern Ireland manufacturers felt a negative impact on their business in the first three months of 2021. This is without full checks even coming into force: the UK and EU agreed grace periods for some procedures, on which the UK is now asking for a “standstill” to allow for renegotiation.  

But while the EU should be prepared to engage with the substance of the issues raised—and show more flexibility—the government’s attempts to rewrite the protocol could well undermine its own cause.

Trust is sorely lacking. Whilst some EU member states understand the need to address some of the challenges of the protocol, others, like France, see disagreements over implementation as just an attempt by the UK government to disregard inconvenient parts of the treaty it signed. They are wary of rewarding bad behaviour and concerned that if they give too much, parts of the UK-EU future relationship treaty—the Trade and Cooperation Agreement—may also start to unravel.

In his statement to the House of Lords explaining these new proposals, Brexit minister and former chief negotiator David Frost also emphasised the need to build trust—although he failed to acknowledge the UK’s own part in undermining the relationship. Although he is right to point out the negative impact of the EU’s aborted plan to trigger Article 16 to suspend some part of the agreement back in January, the UK government has since fanned the flames of opposition to the protocol that this move sparked. Rather than attempt to rip up the agreement, the UK should instead accept responsibility for what it signed last October and work on resolving the issues that it raises within the parameters of the treaty.

The protocol was created to protect the peace and prosperity of Northern Ireland. Neither side should lose sight of that.