Cooperation not confrontation should be at the heart of UK–EU discussions on the protocol

Wednesday was a busy day in politics. While Rishi Sunak set out his budget in Westminster and as first minister Nicola Sturgeon gave evidence about the Salmond inquiry to the Scottish Parliament, the UK government made its latest controversial move on the Northern Ireland protocol. Wednesday was also just the third day of David Frost’s tenure as Boris Johnson’s minister for Brexit.

In a written statement to parliament, Northern Ireland Secretary Brandon Lewis announced that the UK would take some ‘temporary operational steps’ to support the flow of goods between Great Britain and Northern Ireland ^[1] – in effect, extending the ‘grace period’ on paperwork, which means a continued absence of full EU controls, for supermarkets moving goods into Northern Ireland. This unilateral decision was criticised instantly by the EU as a violation of the protocol and a breach of good faith under the Withdrawal Agreement.^[2] In response, the European Commission has threatened legal action and the European Parliament has delayed its vote on the UK–EU Trade and Cooperation Agreement, which it has yet to formally approve.

Although the government’s decision addresses very real concerns raised by the business community in Northern Ireland, it also undermines discussions taking place in the Joint Committee – the UK–EU forum for managing the operation of the protocol – and damages trust between the UK and the EU. The UK government maintains that it has taken only technical actions and has acted consistently with its international obligations, but it looks suspiciously like a Lord Frost tactic to bounce the EU into caving in on UK asks. And as last year’s controversial international law-breaking clauses in the UK Internal Marker Bill showed, Frost has form.

However, making the protocol work in the long-term requires cooperation between the UK and the EU, not confrontation – with the latter risking further instability in Northern Ireland, and a more fractious future relationship.

The ends were justified, but the means chosen put the UK in the wrong

The UK announced that it will continue the current scheme that allows supermarket and their suppliers to move agri-food products from GB–NI without undergoing full EU controls until October. New paperwork would be phased in over this period while the UK government’s new digital assistance scheme to streamline the processes gets up and running. The UK government also said that it would give parcel couriers more time before they needed to comply with full customs formalities.

The move is, quite frankly, necessary. Northern Ireland businesses have repeatedly warned that they are not ready to comply with the new requirements. And with political tensions heightened, the DUP Northern Ireland agriculture minister has halted construction on the facilities needed to conduct agri-food checkks. ^[3] Introducing full controls in just under a month’s time is neither practically nor politically viable – a solution was as necessary as it was urgent.

Business groups lamented the late February Joint Committee meeting – the last with Michael Gove at the helm – as a missed opportunity to agree a joint UK–EU way forward. But with both sides recognising the need for “ongoing engagement and the shared desire to act at pace" ^[4] it is highly likely a mutually agreed solution could have been possible – until the UK decided to go it alone.

If the UK wants the EU to show flexibility on the protocol, it needs to build not break trust

The Institute for Government has repeatedly argued that the EU should be flexible, ensuring any controls on GB-NI goods are proportionate to the risk to the EU single market. But in return, the UK must prove that it can be trusted to implement any agreement that is reached.

UK–EU relations on the protocol have been a roller-coaster ride – from the lows of the UK Internal Market Bill, when the UK threatened to break international law, to the highs of December’s Joint Committee agreement. The Article 16 drama – which saw the EU quickly backtrack on plans to override parts of the protocol as part of vaccine export controls – rightly prompted outrage and changed the political context, but the shock appeared to underline the need to work constructively to find mutually agreed solutions. But the row dented already fragile trust, and this latest move from the UK has caused further damage – and means the UK has conceded the moral high ground. Until the relationship is repaired, any hopes of the UK and the EU agreeing to further flexibilities in the application of EU law seems unlikely.

Disputes over the protocol will have wider consequences for the UK’s diplomatic relationships

The UK government has managed to alienate the Irish government, with Irish ministers suggesting that the UK has undermined Irish efforts to help smooth the operation of the protocol. That is not a smart move. And a fortnight before St Patrick’s Day, the new occupants of the White House will be unimpressed by the UK’s provocative actions. Doubly unsmart.

David Frost joined the cabinet with a reputation for believing confrontation works. But the protocol will only work with cooperation. Frost the negotiator delivered a Trade and Cooperation Agreement that should have offered stability to business. On the day the chancellor was basing his budget on a massive surge in business investment, Frost the minister’s approach was undermining that stability. The risk is that his Brexit deal degenerates into a Trade and Confrontation Agreement.