Trust and compromise needed to change the Northern Ireland protocol

The UK government’s command paper is designed to fix the Northern Ireland protocol’s problems, but it goes far further than proposing technical changes within the parameters of the protocol. Instead, in an effort to establish a 'new balance' in the arrangements which govern trade between Northern Ireland and Great Britain ^[1], the UK government has suggested a substantial renegotiation of large parts of the protocol.

The problems the command paper identifies are real. A Manufacturing NI survey showed that around three quarters of manufacturing businesses have been negatively affected by the protocol in the first three months of the year and Marks and Spencer’s chairman recently warned that the protocol could cause stock shortages in Northern Ireland’s M&S shops at Christmas ^[2]. But the UK is pitching its solutions in the wrong way. By giving the appearance of wanting to rewrite the obligations it signed up to in October 2019 – in particular how the treaty will be enforced – the UK government has fuelled the EU’s perception that it is not a trusted partner. This makes reaching a compromise on the protocol far harder.

The UK has proposed a substantial renegotiation of the protocol

This 'new balance' would be a marked change to the protocol. The UK is proposing the removal of full sanitary and phytosanitary (SPS) checks and controls as well as customs requirements on goods moving from Great Britain to Northern Ireland intended to remain in Northern Ireland. Instead traders would register for a ‘light touch’ regime based on transparency from business and possible checks on shipments “on a risk-based and intelligence- led basis”. Increased labelling requirements, stronger market surveillance and stricter penalties in UK law for those who don’t fully comply would also be introduced. Full checks and controls would apply to any goods which are intended for the Republic of Ireland or the rest of the EU. These measures, though relatively light on detail, would address the burden that traders currently face. The EU would need to be willing to tolerate a greater level of risk to the single market, but the current ‘zero-risk’ approach is unnecessarily heavy-handed.

The proposals also include a ‘dual regulatory regime’ in Northern Ireland – allowing goods manufactured or originating from Great Britain to circulate within Northern Ireland provided they meet UK standards, rather than the EU’s – and a renegotiation of the state aid provisions. Most eye-catching, perhaps, is the proposal to revisit the governance arrangements overseeing the protocol and remove the role of the European Court of Justice entirely. Allowing a third country to administer the EU’s border on its behalf was already a major concession by the EU: it is completely unrealistic to expect it to agree to absolutely no EU supervision – especially as EU rules would continue to apply in Northern Ireland and the ECJ is the sole arbiter of EU law. It remains to be seen whether this proposal will undermine the government’s other attempts to address the impact of the protocol on business and consumers or whether this unacceptable – to the EU – demand creates the space for a compromise to be found elsewhere.

The problems caused by the protocol were evident when it was first agreed

It is clear that the protocol needs surgery. But its problems should not be a surprise to the UK government, whose impact assessment accompanying the implementing legislation ^[3] anticipated much of what is now playing out on the ground. In the command paper, the government blames both Theresa May’s administration and the 2017-19 parliament for this predicament – but it was Boris Johnson’s choice to renegotiate rapidly to meet his 31 October deadline. He called it an “oven-ready” deal but is now saying that it needs to be “rebalanced”. By asking the EU to renegotiate the treaty on this basis, the UK government is either saying it completely misunderstood the deal, or is admitting that it only agreed to the terms to get a deal over the line – and was never willing to implement the protocol in full.

The UK may well have hoped the EU would have been more flexible – there were some very obvious cans kicked by both sides back in October 2019, not least the ‘at risk’ criteria for tariffs – but if the UK is perceived to have signed the agreement in bad faith it could make it harder for the EU to compromise, especially as all 27 member states will need to agree.

If the UK wants the EU to move, it needs to prove it can be a trusted partner

The UK government’s proposals rely on trust – and that is in short supply in its post-Brexit relationship with the EU. It is asking the EU to trust the UK to implement the proposals in full and to trust in its surveillance of businesses. But so far the UK has repeatedly failed to demonstrate it can be a trustworthy partner. Aside from the UK Internal Market Bill, which contained clauses that would have broken international law in “specific and limited” ways, the UK has not fulfilled obligations it has already signed up to. For example, the EU has consistently accused the UK of failing to meet its pledge to adequately share data.    

But the EU also needs to be willing to compromise. The IfG has repeatedly argued that the EU should be more flexible over the risk that goods moving from Great Britain into Northern Ireland really pose to the EU single market and recognise that the protocol also protects Northern Ireland’s place in the UK internal market. Therefore it should now be willing to engage with the substance of some of the UK’s ‘new balance’ proposals.

The protocol exists to ensure peace and stability in Northern Ireland, and both sides should commit to making it work. The UK is not wrong to seek to changes to the protocol, but by proposing to essentially rip up the deal and start again, it is not seeking changes in the right way, let alone a persuasive one to EU member states.

1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004581/CCS207_CCS0721914902-001_Northern_Ireland_Pro…
2. https://www.belfastlive.co.uk/news/belfast-news/marks--spencers-northern-ireland-21104272
3. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/841245/EU_Withdrawal_Agreement_Bill_Impact_Assessment…