Joint Committee's Brexit agreement must mean better Northern Ireland protocol cooperation

Michael Gove and Maroš Šefčovič, the co-chairs of the UK-EU Joint Committee overseeing the Brexit withdrawal agreement, have announced that an agreement has been reached ‘in principle’ on all outstanding issues on the Northern Ireland protocol. As a result, the UK government has dropped the international law-breaking clauses from the UK Internal Market Bill and the Taxation Bill.

This is a welcome development. It means a possible protracted UK-EU legal battle over the implementation of the protocol – with Northern Ireland businesses and consumers caught in the middle – has been avoided and a barrier to a future relationship deal has been removed. It has also provided much-needed certainty for businesses on key details about how the Irish Sea border will operate in practice, and on important measures to limit disruption on 1 January.

The devil may yet be in the detail, and we await the full text of what has been agreed. But these decisions signal a more pragmatic approach to the protocol.

The UK has removed its threat to break international law

The UK government argued that it would need powers to override aspects of the protocol as a ‘safety net’ in the event that agreement could not be reached on key issues. The potential implications for the rule of law and the Good Friday Agreement prompted strong condemnation from the government's own MPs, the House of Lords and the US president-elect.

But there is now an agreement to remove the need for paperwork for goods leaving Northern Ireland for Great Britain, allowing the UK to make good on its commitment to ‘unfettered access’. A ‘clarification’ on the application of EU state aid law in Northern Ireland has also allayed concerns that these provisions could have implications for businesses in GB.  

The Joint Committee has adopted a definition of the “at risk” goods moving from Great Britain to Northern Ireland that appears to meet the UK ask of preventing tariffs on internal UK trade. That removed any need for the UK to legislate unilaterally in the Finance Bill to impose its own definition.  

This is good news not just for the rule of law, but for businesses trading across the Irish Sea. An estimated 98% of goods ^[1] going from Great Britain to Northern Ireland will now be able to do so free from tariffs – whether or not there is an agreement on UK-EU future relationship.

These decisions will also help minimise disruption on day one

The UK and the EU have also agreed a number of mitigations to help ease queues and delays in Northern Ireland ports on 1 January. This is good news. Coronavirus and political difficulties have delayed government preparations, and the Institute for Government has repeatedly warned that the protocol will not be operational by the end of the year.

Many of the new measures relate to agri-food products, which under the terms of the protocol require the most extensive paperwork and checks. Officials have warned that the new facilities needed to carry out inspections would not be ready by the end the year, creating concern about disruption to supermarket supply chains. The latest decisions reportedly include a three months grace period before businesses need to comply with this new paperwork – and special arrangements to facilitate trade in sausages across the Irish Sea.

These mitigations are only temporary, and do not provide long term solutions to the problems posed to the supply of British food products to the Northern Ireland market – which the Joint Committee should continue to explore. But the agreement will at least buy traders and the government more precious time – a key ask of Northern Ireland business ^[2] – to ensure the Irish Sea border runs as smoothly as possible. It looks like a can has been kicked a bit further down the road – but it is a road which at least provides a route forward at the end of the year.

The protocol is not just for the end of transition

But the work does not end on New Year’s Eve. The aspects of the protocol on trade and regulations will only remain in force for as long as the Northern Ireland Assembly gives it consent – with votes every four to eight years, and the first due in 2024. The Joint Committee will need to continue to ensure the protocol works for the people and businesses of Northern Ireland.

The protocol will evolve, as both UK and EU law develops and potentially diverges. The long-term political economic impact of Brexit only become apparent in time and new unforeseen challenges will arise. Under the terms of the Withdrawal Agreement the Joint Committee has a duty to assess how the agreement continues to function – it should aim to identify and address issues at an early stage.

This will require a long-term commitment from both the UK and the EU, even once the media glare has faded, and a relationship based on trust – which has often been in short supply in recent years. The latest agreement has brought the UK back from the brink of breaking international law and paved the way for a more constructive approach to the protocol. Nothing, not even no deal on the wider future relationship, should be allowed to disrupt this.