The EU should be flexible on the Northern Ireland protocol

The Northern Ireland protocol has once again been making headlines. On Monday the House of Lords voted to remove the controversial provisions of the UK Internal Market Bill that would give ministers powers to ‘override’ elements of the protocol. But that was not the most significant intervention this week.

The first minister and deputy first minister of the Northern Ireland executive sent a joint letter to the vice-president of the European Commission calling for solutions to the challenges posed to supermarkets by the extensive new agri-food checks required under the protocol.

The power of this rare joint statement – from the leaders of the DUP and Sinn Féin, the first on Brexit since 2016 – should not be underestimated. Power-sharing institutions are at the core of the Good Friday Agreement, which both the UK and EU say they are committed to respect: when the executive comes together to express concerns, they should be taken seriously.

The protocol may have negative impacts on Northern Ireland consumers

The protocol requires Northern Ireland to apply EU law in certain areas, like customs, product standards and agriculture. This means new checks and paperwork for goods arriving from Great Britain; all agri-food products arriving from Great Britain will require a (newly introduced) export health certificate, signed off by a vet – each costing a minimum of €55.^[1] In a no-deal scenario, 100% of live animals, 30% of minced meat, poultry and dairy, and 15% of other products will need to be physically inspected. A UK–EU deal could reduce the frequency of checks, but will not remove them entirely: delays and increased costs are inevitable.

As large-scale operations, supermarkets face unique challenges. Reports estimate that a single ‘mixed’ container of groceries crossing the Irish Sea from Great Britain will incur an extra £6,000 in costs.^[2] Sainsbury’s and Marks and Spencer have already warned that, unless the UK and EU agree special exceptions, they may have to limit certain products in Northern Ireland next year.^[3]

With a high proportionate of perishable goods, supermarkets will also be particularly vulnerable to delays at the border. Our recent report, Preparing Brexit: How ready is the UK? warned that arrangements for the Irish Sea border – and importantly the infrastructure to conduct new agricultural checks – will not be ready by the end of the year. If the EU insists the UK applies EU law in full from 1 January, serious trade disruption is likely.

The EU has an interest in ensuring the application of the protocol is proportionate

Given the fraught politics surrounding the protocol, the UK government has a clear incentive to minimise the burdens on businesses created by it. But the EU, too, will share in the blame for empty supersupermarket shelves; it also has incentive to ensure the protocol is not overly onerous.

Four years after the end of the transition period, members of the Northern Ireland assembly will vote on the continued application of the parts of the protocol on customs and regulatory alignment. If the costs are judged to have outweighed the benefits, it increases the likelihood that the assembly refuses consent. This would present Brussels with as much of a headache as London.

The purpose of the protocol is to prevent a hard border on the island of Ireland, while protecting the integrity of the single market. The European Commission says the full application of  EU rules is necessary “to protect the health and safety of consumers in the single market”, but any controls must be proportionate to the risk. There are big questions about what risk a meal deal chicken sandwich sold in a Belfast or Armagh Tesco really poses.

The Commission may argue that the Withdrawal Agreement has been signed and cannot be reopened. But the UK–EU Joint Committee – established specifically to oversee the implementation of the protocol – can, and should, develop a way forward that allows that proportionate approach. 

That is not the only area where the EU will need to show flexibility. UK officials will in January be forced to choose between applying the letter of the EU law at the border and facilitating the timely flow of goods through it; a tough EU approach to compliance, will intensify the inevitable disruption. The EU has already agreed to be more flexible to ensure supplies of medicines continue into 2021 – it needs to extend this flexibility to other areas, allowing the UK to take a pragmatic approach to new border controls.

EU flexibility will require the UK to put its commitment to the protocol beyond doubt

But the EU will likely only be ready to show such flexibility if it trusts that the UK will not renege on what has already been agreed: the UK Internal Market Bill proposes to do just that. Committing not to reinsert the offending clauses removed by the Lords will be an important and necessary first step in rebuilding that trust.

The protocol itself is testament to the ability of the UK and the EU to show flexibility. For the sake of the political and economic stability of Northern Ireland they should be prepared to bend a little more.