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Wielding a gun with no ammunition: The UK, the EU and the battle over the Northern Ireland Protocol

It hasn’t gone away, you know.

ANY HOPES THAT the talks between the EU and the UK over the changes needed to the Northern Ireland Protocol were actually going well appeared to be dashed, yet again, on Friday afternoon.

The UK’s David Frost told reporters that “the gap between our positions is still significant and progress on many issues has been quite limited” after his discussions with the EU’s Maroš Šefčovič.

The two sides are to have “intensified talks” in the coming days, RTÉ’s Tony Connolly reported

Although an agreement on Protocol changes is still possible, and preferred by both sides, it’s unclear whether there will be full agreement this side of Christmas.

It is possible that agreement could be found on some elements before the end of the year, but that others will remain unresolved until the New Year.

It’s been suggested that full agreement in the springtime is a priority for the EU, not only to finish with Brexit and move onto more pressing topics, but to have the measures in place before the Northern Ireland Assembly elections next May – where it’s strongly expected that the Protocol will be used as a campaigning tool.

“Because of the elections, the Protocol will remain a live issue here,” one expert said. “The DUP in particular sees the majority of its supporters as anti-Protocol, so they will continue to bang that drum next year, which is rational for that party to do.”

A lack of trust from both the EU and UK is now dominating the talks on reaching a fix. A report from the House of Lords noted that the crux of the disagreement is, as always, based on suspicion and motive: the EU fears that the UK will undermine the Protocol, and “not live up to its political and legal commitments”, while the UK fears that the EU “will always prioritise the integrity of the Single Market over the unique circumstances of Northern Ireland”.

“This has contributed to a serious deterioration in relations between London, Belfast, Dublin and Brussels,” it said.

protesters-from-border-communities-against-brexit-demonstrate-at-flurrybridge-in-carrickcarnon-on-the-border-between-the-republic-of-ireland-and-northern-ireland-calling-on-the-government-not-to-trig Protesters from Border Communities Against Brexit demonstrate at Flurrybridge in Carrickcarnon. 20 November 2021. Source: Alamy Stock Photo

Though this has led to the UK threatening to trigger Article 16 of the Protocol as a last resort, recent reports have suggested that the UK government is increasingly aware that this would not get rid of the Protocol, but would only suspend parts of it temporarily.

Cabinet Office minister David Frost this week acknowledged to Ulster Unionist Party politician Reg Empey: “Triggering it does not affect the standing of the Protocol as a whole.”

In order to adhere to the rules of triggering Article 16, the UK government would also have to clarify what aspects of the Protocol it will be suspending and why – if it doesn’t adhere strictly to these parameters of Article 16, it could face legal action from the EU.

Experts have repeatedly concluded that Article 16 looks increasingly less useful as a legal tool to opt out of the Protocol, or the problems associated with it. If triggered, the UK would only be able to suspend some parts of the Protocol temporarily, in very limited circumstances. It would still be legally obliged to implement the rest of the Protocol. 

But experts have also acknowledged that Article 16 has so far proven a useful political tool – one said that it was like wielding a gun with no ammunition: far more effective as a threat than as an actual weapon. 

The Protocol: a recap

Katy Hayward Protocol Source: Katy Hayward/DCU Brexit Institute

The Protocol is essentially the rulebook of special post-Brexit trade arrangements for Northern Ireland. It means that despite the EU-UK trade deal struck for Great Britain, Northern Ireland has a different set of rules in order to avoid a hard border on the island of Ireland, and maintain the peace and stability set out by the Good Friday Agreement.

In order to avoid that border going through the island of Ireland, a ‘regulatory’ border was agreed along the Irish Sea, while Northern Ireland also remains ‘aligned’ to the EU’s Customs Union – meaning product standards and customs are checked when goods arrive at Northern Ireland’s ports and airports instead of at the Irish border.

In short, this means that Northern Ireland is in the Single Market, while England, Scotland and Wales are outside of it. This ‘regulatory border’ means that it is easier for NI exporters to send their goods to EU member states than it is for Great Britain, while NI businesses are also able to send goods to the rest of the UK, most without extra checks or costs.

For importing British goods into Northern Ireland, trade is more difficult than before. Because Northern Ireland is in the EU’s Single Market, goods being sent there need to have the correct paperwork, possibly pay additional costs, and they need to meet certain standards, so as not to dilute the value of the EU marketplace.

This has resulted in reports of some GB businesses not sending goods to Northern Ireland that they had sent there before, due to the level of additional bureaucracy.

anti-irish-sea-border-placard-and-small-union-flag-attached-to-a-lamppost-in-bangor-northern-ireland-in-opposition-to-the-northern-ireland-protocol Source: Alamy Stock Photo

Katy Hayward, professor of social science at Queen’s University, said that a “lack of clarity” over what to expect from the Protocol “arises from the different versions of it” there have been over the years of Brexit negotiations.

“The backstop was an insurance policy, if the UK wasn’t aligned enough, but the Protocol, or the ‘frontstop’, was coming into play no matter what -  it was always going to have an impact on arrangements for Northern Ireland,” she told The Journal.  

“That was not spelled out or admitted by the British government. The transition period in 2020 was spent on the future relationship talks, rather than giving businesses information on what GB-NI trade would look like.”

“On 1 January 2021, there was still a lot of doubt or gaps in information in what was needed for goods going from GB to NI. When there is a new regime, a big part of managing that is making people familiar with the rules.”

The products that are harder to send

One clear example of where this has raised problems with the Protocol in action over the past year is the EU ban on importing chilled processed meats from ‘third’ countries – think sausages, mince, chicken nuggets, and pre-made lasagnas.

selection-of-dry-cured-meat-sausages-including-wild-boar-on-a-stall-in-the-continental-market-belfast-northern-ireland-uk-united A selection of dry cured meat sausages, including wild boar, on a stall in the continental market in Belfast. Source: Alamy Stock Photo

The sanitary and phytosanitary checks (also known as SPS checks) on animal and plant-based products have also caused problems: products like milk and eggs need to be inspected, while pets, guide dogs, potted plants and seeds have been prevented entirely from being imported from GB to the North.

Many people say that this is the deal the UK government agreed to last Christmas Eve.

But the UK government may have been under the impression that the checks wouldn’t be applied as rigorously as they are, or that some wouldn’t be applied at all if NI businesses could prove that goods imported from Great Britain were staying in that region, and not moving on to Ireland and the rest of the EU.

As one manufacturing expert told The Journal: the essence of the differences between the two sides is that the UK thinks checks on goods going from Britain to Northern Ireland should be treated as “innocent until proven guilty”, and that the EU thinks vice versa. 

A possible solution was highlighted well in this piece by Anton Spisak for the Tony Blair Institute: 

“The only way forward here is to agree to allow certain sensitive goods, produced in any part of the UK but intended solely for consumption in Northern Ireland, to be placed on the Northern Irish market without additional checks. In legal jargon, it means agreeing to a principle of ‘mutual recognition’ of each other’s rules for the purposes of a certain class of sensitive goods sold and consumed in Northern Ireland only, such as chilled meat, agricultural products and medicines.”

There have been other suggestions too: Professor Duncan Morrow of Ulster University told a House of Lords committee that a UK-EU veterinary agreement was “probably the single biggest thing that could be done in practical terms” to alleviate the burden of the Protocol.

The National Farmers’ Union and Ulster Farmers’ Union stated that they would welcome a long-term SPS agreement covering all affected products, including live animals, products of animal origin, plants and plant products, prohibited and restricted goods, growing media, and machinery.

Minister for Foreign Affairs Simon Coveney has suggested previously that this would eliminate the need for 80% of GB-to-NI checks.

Jess Sargeant, senior researcher for the Institute for Government, said that a UK-EU veterinary agreement could take several forms, including a Swiss-style agreement, with complete regulatory alignment and removing the need for almost all paperwork and checks; or a New Zealand-style agreement, which would reduce the frequency of checks.

The UK and EU have been trying to fix these for a while

brexit-minister-lord-frost-flanked-by-paymaster-general-penny-mordaunt-sitting-opposite-european-commission-vice-president-maros-sefcovic-who-is-flanked-by-principal-adviser-service-for-the-eu-uk David Frost sits opposite Maroš Šefčovič, as he chairs the first EU-UK partnership council on 9 June. Source: Alamy Stock Photo

Talks have been ongoing since the spring to sort out what UK Prime Minister Boris Johnson called “teething problems” with the Protocol. The Joint-Committee, headed up by Cabinet Office minister David Frost and Vice-President of the European Commission Maroš Šefčovič, was created to handle how the Withdrawal Agreement is being implemented.

Despite these ongoing talks, and because of the chasm in the different approaches in implementing the Protocol, the threat of triggering Article 16 has been used by the UK government since January, after the European Commission suggested triggering Article 16 as part of a vaccine supply row with AstraZeneca.

Though it’s hoped a breakthrough can yet be made, it’s unclear whether an agreement will be struck.

There is one eye on Northern Ireland elections due in May: whatever Stormont Assembly is elected will give the power to the incoming MLAs to vote on whether to keep the Protocol in place for another four years, another eight years, or to get rid of it entirely.

The European Commission recently published suggestions on how to ease the problems in trade with the Protocol, based on conversations with Northern Ireland businesses. It is now in the process of demonstrating to the UK government how these changes would reduce the volume of customs checks on British goods by up to 50%.

But the UK has also been calling for the oversight of the European Court of Justice to be removed from the Protocol – despite this not being a priority for communities in Northern Ireland. It’s also not clear how the oversight of the ECJ could be lifted under the limited provisions of Article 16, as it hasn’t been used yet to show that it has caused “serious difficulties”.

As a recent editorial in the Financial Times noted: “This reflects more the ideological preoccupations of Frost and fellow hard Brexiters with ‘sovereignty’ than realities in Northern Ireland. The unionist community is more concerned with making the deal function than with who is the ultimate arbiter.”

It’s not straightforward how Article 16 would work

Article 16 Source: Article 16

When Britain threatens to trigger Article 16, there is uncertainty over exactly how that would even work. The provision, which is in other EU trade deals, has never been used before. 

There are also a lot of caveats to triggering Article 16 – some of which contradict the Protocol itself, and others that aren’t clear on how arbitration measures would work.

It is supposed to be an emergency clause, that can be used if the Protocol causes “serious economic, societal or environmental difficulties that are liable to persist”, and cannot be solved by negotiation. The idea is that if the Protocol arrangements are causing such problems, Article 16 can be triggered in order to lift the measures that are causing problems.

british-brexit-minister-david-frost-speaks-to-the-media-ahead-of-a-meeting-with-european-commission-vice-president-maros-sefcovic-in-brussels-belgium-november-19-2021-reutersyves-herman British Brexit Minister David Frost speaks to the media ahead of a meeting in Brussels. 19 November. Source: Alamy Stock Photo

In a briefing paper by John Curtis, a Senior Clerk at the Commons Library, it’s pointed out that because Article 16 hasn’t been triggered before, and because this is an unusual trade dispute that is highly politicised, the “safeguard” measures under Article 16 and retaliatory “counter-balancing” measures aren’t straightforward:

It is easier… to quantify the economic harm imports might be having on a domestic industry, the level of tariffs required to reduce import levels, and also what tariffs the other party might impose in response in counterbalancing measures.
The type of action the UK is reported to be considering using under Article 16 are much harder to quantify.

Robert Howse argues that the phrasing in the Protocol that measures should “least disturb” how the Protocol works suggests that any measures brought in under Article 16 would “disturb” how the Protocol works.

If the UK does trigger Article 16, it’s likely to do so over customs and the movement of goods, but VAT, the Single Electricity Market, or state aid could also be affected.

In response to these, the EU could threaten to withhold cooperation on Gibraltar negotiations, data adequacy and financial services, or even suspend the entire EU-UK trade deal, as has been threatened publicly.

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european-commission-vice-president-maros-sefcovic-speaks-to-members-of-the-media-during-a-video-conference-after-a-bilateral-meeting-with-switzerlands-foreign-minister-ignazio-cassis-at-the-european European Commission Vice-President Maros Sefcovic speaks to the media. 15 November. Source: Alamy Stock Photo

Primarily a political tool

Though the threat of Article 16 has loomed all year, domestic politics has played into the UK government’s decision on whether to pull that trigger.

prime-minister-boris-johnson-leaves-10-downing-street-london-to-attend-prime-ministers-questions-at-the-houses-of-parliament-picture-date-wednesday-december-1-2021 Boris Johnson leaves 10 Downing Street to attend PMQs. 1 December. Source: Alamy Stock Photo

One suggestion is that the UK government was legitimately planning to trigger Article 16, but after the Tories became embroiled in a sleaze row and corruption claims, it cooled off on the idea.

  “There’s enough going on [right now],” an adviser told the Financial Times, referring to inflation, cost of living, energy prices, and Covid-19 pressures.

The other side of that coin is the Article 16 row flared up in order to distract from the sleaze row the Tories were coming under pressure from at home – which saw Boris Johnson’s Conservative Party take a hit that put them behind Labour for the first time in 12 months.

That sleaze row, which invoked outrage among the public after Conservative MPs voted against suspending an MP accused of breaking lobbying rules, began with a Commons vote on 3 November.

There were murmurings and then chatter and then shouting in the British press that Article 16 could be used by mid-November. But by 22 November, things had cooled off: junior minister Anne-Marie Trevelyan said Article 16 wouldn’t be used this side of Christmas – and there hasn’t been much mention of it since.

Katy Hayward told The Journal that Article 16 is “primarily a political tool”.

“Even referring to it might be a negotiating tactic, rather than an economic strategy,” she said. 

This idea has been echoed by others. International Law Professor Robert Howse of the University School of Law wrote in a report published this month:

“In heated political quarters, Article 16 is held up as a weapon – but one gets the sense this is done with little certainty as to just what ammunition the weapon is loaded with”.

Hayward says the UK government also hasn’t been specific on what parts of the Protocol they would suspend under Article 16. 

“We’re at a standstill on grace periods, so the fact that there is no full implementation of the Protocol, the question does arise: what would you use [Article 16] for? The UK government keep pointing to a diversion of trade, with North-South trade increasing, that’s forcing us to speculate: would they try to ease East-West trade?”

“Some people have also suggested that they would remove Articles 5-10 of the Protocol, which would include the Single Electricity Market, which would have an impact.

But having invested hundreds of millions of pounds for businesses to do trade in line with Protocol, it doesn’t make sense to put it on ice or throw them in the bin.

This work is co-funded by Journal Media and a grant programme from the European Parliament. Any opinions or conclusions expressed in this work is the author’s own. The European Parliament has no involvement in nor responsibility for the editorial content published by the project. For more information, see here.

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