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'Talk is the only option': Just how far apart are the UK and the EU on the NI Protocol?

How far apart are the EU and the UK to reaching a deal on tweaking trade arrangements in Northern Ireland?

Image: Photojoiner/PA Images

IT’S ALL TOO familiar: In the past two weeks, public rows between the EU and the UK have reemerged, over the supremacy of the EU’s European Court of Justice; and, of course, trading arrangements in Northern Ireland.

This week alone has seen the announcement of two proposals for how trade in Northern Ireland should work from now on – one that was well-flagged from the EU, and a surprise announcement the day before from the UK. 

Addressing a conference in Lisbon on Tuesday, Frost said that the Protocol was drawn up “in extreme haste at a time of great uncertainty”, and said that the EU was an organisation that was suspected of not always wanting the UK to succeed.

He said that a proposal for a replacement to the NI Protocol – rather than a tweaking of the current trading arrangements in Northern Ireland – would be submitted to the EU.

The following day, the European Commission unveiled its updated, improved version of the current Protocol, containing some of the requested changes that the UK government had asked for in previous negotiations.

But EU figures are concerned at the politicised tone of the lead up to this point: ‘ramped-up rhetoric’ against the EU at the Tory Party conference earlier this month was noted.

This is despite reports from both Tory figures and EU political representatives in recent weeks that both sides are “over” the other one – the fact that this political row has erupted might suggest otherwise.

So just how different are these two proposals from each other, and how far away are they from the arrangements already in place?

First: What has been happening up until now?

Since the trade deal agreed between the EU and the UK came into effect on 1 January, officials in Britain, Northern Ireland, Ireland and the rest of the EU have been implementing the new trade rules between the EU and the UK.

In Northern Ireland, these trade rules apply differently. The two sides signed up to this in order to avoid a hard border on the island of Ireland.

This has resulted in additional customs checks and paperwork required at ports and airports in Northern Ireland and Great Britain, instead of placing infrastructure along the island of Ireland. 

In the immediate aftermath of these new post-Brexit trade rules being applied in Northern Ireland, some problems emerged with trade going between Northern Ireland and Great Britain.

Customs and regulatory obstacles caused problems for sending plants, pets, supermarket goods and chilled meats from Great Britain to the North – grace periods were introduced to alleviate these specific issues until a more permanent solution was found.

Talks between the UK Government’s Michael Gove, and the EU’s Maroš Šefčovič hoped to resolve detailed issues with the Protocol through talks held regularly in London and Brussels – problems which were, essentially, inevitable as experts from Northern Ireland weren’t at negotiations where the EU and UK decided how the details should work.

In July of this year, the UK published a ‘Command Paper’ on the Northern Ireland Protocol. The EU responded to say there was enough leeway within the Protocol itself to make certain changes and move things forward, but ruled out a renegotiation.

The main suggestions in this paper have been outlined in the latest statement by Frost.

The new proposals: What do both sides want?

The UK want a “light-touch” traders scheme that will mean businesses can self-declare where their goods are ending up if they enter Northern Ireland; less SPS checks on the highly-regulated agri-goods sector; and an international arbitration mechanism to solve disputes over the Protocol instead of the EU’s court.

The UK are not happy about EU State aid rules applying in NI, or that the EU will not allow pet passports from GB to NI – these are both parts of the Protocol that have caused problems before.

It’s worth noting that this proposal has still not been published by the UK government.

What the EU says it is offering and what it is actually offering seem to be slightly different: but it is aiming to reduce checks on agri-food retail products going from NI-to-GB by 80%, and on customs paperwork for NI-to-GB goods by 50%.

It’s claiming the ‘sausage war’ issue is resolved, and that a trusted trader scheme of sorts will be in place to differentiate between British goods that stay in the North, and those at-risk of spilling over into the Single Market by crossing the Irish border undeclared.

Sinn Féin MEP Chris MacManus said that the changes mean that “a truck transporting different food products (eg; dairy, meat, fish, confectionary, fruit and vegetables, etc.) from Britain to the north will now just need one certificate, instead of hundreds”.

“A business importing products of animal origin (eg, yoghurt, cheese, chicken or turkey) into the north from Britain will no longer be subject to the same level of checks. More than 80% of the identity and physical checks previously required will now be removed,” he adds.

The response of experts to the EU proposals are mostly positive, but not glowing.

Former advisor to the UK’s Brexit Department Raoul Ruparel said in a widely shared Twitter thread that “the possibility of a wider scope for not at-risk goods is welcome and requirement for less info could certainly streamline things. But the text doesn’t really set out how this will happen at all”.

Ruparel also adds that while a commitment to reduced SPS checks would be welcome, “some of the caveats give me pause… We know the current approach in EU legislation doesn’t really allow for even minimal risk, so remains to be seen how this would work.”

Policy lead at the Tony Blair Institute Anton Spisak noted that the proposals are significant “because they move us away from general application of EU rules to NI to a world where aspects of EU law can be exempted for NI. This is a big shift for the EU.”

Spisak notes that the British government “will feel vindicated that the hardball strategy is somewhat working”, and that the EU proposals prove a victory of sorts for their negotiation tactics.

Why did the UK agree to the Protocol in late 2019 if it didn’t like it?

On Tuesday this week, Vote Leave architect and former adviser to Boris Johnson Dominic Cummings said on Twitter that Boris Johnson hadn’t a “scoobydoo what the deal he signed meant. He never understood what leaving Customs Union meant until 11/20. In 1/20 he was babbling ‘I’d never have signed it if I’d understood it’.”

Cummings said that “getting Brexit done” was of much greater importance at the time that the deal was struck than concerns about breaking international law at a later date.

When asked why the UK Government signed up to the Protocol in the first place, and whether it was acting in bad faith when it did so, Frost said in Lisbon this week: “We knew, as we said in our Command Paper, we knew that some aspects of the Protocol agreed in 2019 were problematic. We didn’t particularly support them ourselves.

“We agreed with them because it was the right thing to do for the country overall looking at the wider political debate and the need to deliver on Brexit. We knew we were taking a risk and we hoped that we’d be wrong.

“It turns out we were right and they were risky, and that’s why we’ve come back to them.”

What’s the view from the EU on this?

The European Union wants to know what specifically about its new Protocol proposal the UK government is unhappy with – based on suspicions that it is acting in bad faith.

Green MEP for Dublin Ciarán Cuffe called on the UK government to “engage constructively” with the EU and avoid “this yearly brinkmanship”.

“We should remember that the UK signed up to the Northern Ireland Protocol, and agreed to the role of the ECJ. It is not helpful or credible for Prime Minister Johnson to now renege on this agreement and paint these as red lines.”

Independents4Change MEP Clare Daly said: “The main reason peace in Northern Ireland has been jeopardised in the last few years has been that Westminster has acted without a thought for people in the North, so when Lord Frost claims that preserving peace on the island of Ireland is the reason a new Protocol is needed, it is a bit rich.

“At the same time, we have to take the matter seriously. People on both sides of the Irish border cannot contemplate a deterioration in relations. The desire for a firm, even punitive, response from Brussels is misguided. Talk is the only option.”

Sinn Féin MEP Chris MacManus suggested that the British Government “obviously see a media benefit and electoral advantage in fighting with the EU”.

“The European Commission negotiators and members of the European Parliament’s Contact Group didn’t bat an eyelid at the grandstanding of David Frost.

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“What is interesting is that while the Commission publishes all its proposals the British government is wedded to secrecy – presumably because their proposal will be a rehash of the tired old rhetoric that again misrepresents the Good Friday Agreement and completely ignores the fact that the majority in the North voted against Brexit.”

Fianna Fáil MEP Billy Kelleher said that Frost’s announcement this week came as somewhat of a surprise to Ireland, as the main stumbling blocks over the Protocol to date have been technical issues related to customs clearances, new paperwork, and inspections at port facilities between Great Britain and the North – not the ECJ.

“They elevated the ECJ as most important issue, even though it was part of the Trade and Cooperation Agreement that they signed up to,” the Ireland South MEP said. “Now, all of a sudden, they’ve spotted this about the ECJ being the final arbitrator – it just couldn’t have been new to the British Government.” 

Vice-President of the European Commission Maroš Šefčovič – who is tasked with handling post-Brexit relations with the UK, and making improvements to the Protocol – said that during his engagements with stakeholders in Northern Ireland, ECJ oversight was only raised with him once.

Kelleher said that the UK are “consistently elevating issues,” and “almost negotiating in bad faith” at this stage.

It’s a very bad way to enter negotiations. But I’d like to think there’s enough sense and sensibility in the UK among business leaders and the broader public to know that a trade dispute is not a very good move from either side.

The Journal asked the Cabinet Office for details on what specific elements of the current Protocol, and the EU’s recent suggested changes to that Protocol, the UK Government is unhappy about, and why the ECJ oversight is only being raised as an issue now.

A response has not yet been received. 

How likely is Article 16 to be triggered, and what happens next?

There is also the small matter of Article 16 – a ‘nuclear option’ contained in the Northern Ireland Protocol that would cut all those hard-fought for trading ties if the UK government can legally argue that they are causing more harm than good.

When Frost was asked whether he was willing to risk a trade war by triggering Article 16, and whether the UK would trigger it over ECJ oversight, he said:

“There’s obviously a couple of hypotheticals in there… It would be for the EU to decide whether it made sense to retaliate. I don’t think it would make the situation any better by doing so, it won’t help the situation in Northern Ireland which is what it’s all about, but obviously it’s not in our hands. But it’s obviously not our decision.”

Trade and legal experts say that though the Article 16 option is contained in the Protocol, it is unlikely to be triggered as it would possibly unravel elements of the Protocol that do work, and plunge the two sides into trade negotiations almost from the start.

The next step will be further negotiations, with the hope that the two sides can meet somewhere in the middle between their two demands before Christmas – they managed a Christmas Eve deal in 2019, after all.

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