How to make the Northern Ireland Protocol work

UK Policy Brexit

How to make the Northern Ireland Protocol work

Commentary
Posted on: 10th June 2021
Anton Spisak
Policy Lead, Trade and Productivity

Few people on either side of the Channel believed Brexit was “done” last December when negotiations concluded with a last-minute deal. But in recent months, Britain and the EU have fallen out with a bitterness exceeding most expectations As both parties prepare for fresh talks this week, tensions are as high as ever.

At the heart of this conflict is Northern Ireland’s post-Brexit status. The “protocol,” which requires checks on goods moving between Great Britain and Northern Ireland in order to avoid a hard Irish land border, has been contentious since the start of the new year. But political temperatures have risen after a series of entirely avoidable errors: the EU announced, then quickly reversed, plans to suspend the protocol to block exports of vaccines at the start of the year; then, in March, the UK unilaterally extended the waivers for checks on goods without informing Brussels of its decision in advance.

Even after weeks of technical talks, the differences between London and Brussels remain substantial. Negotiations have yielded some progress, but not on key issues. The belief in Brussels is that the UK is not engaging in good faith because it is looking for a pretext to scrap the protocol altogether. The UK, on the other hand, thinks the EU is dogmatic, accusing it of “legal purism.” As each side blames the other for refusing to compromise, it is increasingly difficult to have a rational debate about the problems with the protocol and to look for pragmatic solutions that address these problems

Both parties vastly underestimated how difficult it would be to make the protocol work. The UK side, at the time it signed the protocol, believed its impacts could be cushioned with a broader trade agreement with the EU. But to claim that the consequences were “unforeseen,” as the government now does, is misleading. For many months, UK ministers dismissed those warning of onerous checks in the Irish Sea as unpatriotic naysayers, even though the implications were clear when the “oven-ready” Brexit deal was sealed before the 2019 general election.

For the EU’s part, its belief that checks at ports in Larne and Belfast should be treated as if they were taking place at the border in Calais was at best naive. The view that “the rules are the rules for all third countries and they have to be implemented in the same way” does not transfer well to a post-conflict society like Northern Ireland, where one of the two key communities sees any economic restrictions with the rest of the UK not just as a trade barrier, but an assault on their sense of identity and belonging.

It is possible to hold two facts simultaneously: that the protocol is the only viable solution on the table, and that implementing it is practically, legally and politically difficult, requiring flexibility from both sides.

The protocol is practically challenging because its full details were always going to be fleshed out only after it had been sealed, and because it was predicated on mutual trust. Making it work requires taking a common view of what EU requirements mean on the ground. The UK, as a third country, would need to administer and enforce the EU’s external border in good faith. The political climate of distrust and mutual blame of recent months makes this simply impossible.

It is legally ambiguous because the protocol tries to reconcile two distinct objectives with a legal fudge. On the one hand, the agreement prevents a hard frontier on the island of Ireland by requiring Northern Ireland to continue following relevant EU rules. On the other, it commits to ensuring that the UK’s own internal market can operate smoothly, in Article 6, and without disrupting the lives of people in Northern Ireland, in the preamble and Article 16. This legal ambiguity can help if the two sides use it to press for flexibilities that otherwise would be difficult to achieve within the strict boundaries of EU law and UK domestic law. But that ambiguity becomes a point of contention in the face of intransigence.

And it is politically difficult to navigate because compromise from London leads to the Unionist community in Northern Ireland feeling betrayed. These sensitivities cannot be dismissed. Otherwise, the protocol will create a lasting strain on Northern Ireland’s politics, with unpredictable consequences in the years to come.

The protocol tries to make the best out of a bad situation. It is far from perfect; but unless the UK chooses to rejoin the single market (politically unpalatable for London), or the EU imposes checks between Ireland and the rest of the EU (unacceptable for Brussels), or a hard border is imposed on the island of Ireland (dangerous for all sides), the protocol, for all its flaws, is our best bet. Both sides must try to make it work in a more balanced way.

The key question that needs addressing is whether some goods produced in Great Britain but intended for sale only in Northern Ireland need checks upon arrival to the province. According to the protocol, they require prior documentation and physical inspections even though they may not travel on into the European market. This issue, which is at the core of current difficulties, relates to the movement of agricultural products, animals, medicines and other sensitive regulated goods moving across the Irish Sea. It can lead to absurd situations in which pets travelling to the province need to be vaccinated for rabies despite GB being rabies-free for nearly 100 years, or in which a life-saving drug is approved for Great Britain but not for Northern Ireland.

A “veterinary agreement,” often cited as a solution, may limit physical inspections for some products of animal origin, but it cannot deal with the full scope of issues here. Nor can a temporary arrangement for the whole of the UK to align with EU sanitary laws, suggested by the European Commission, serve as a durable solution.

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.

In practice, some documentation would be necessary to declare what goods were being moved, and fuller checks would still be required for those intended for onward movement to the EU. The Joint Committee, a body responsible for implementing, the Brexit withdrawal treaty, could be tasked with producing a list of these sensitive goods and updating its assessment of risk to the EU single market in situations when the circumstances materially change—for example, when the UK signs a new trade deal with another country with looser rules, or when the government in London substantially diverges from existing EU-inherited rules on its statute book.

The advantage of this solution is that it could circumvent checks on most goods crossing the Irish Sea and address not only the current difficulties but also future regulatory divergence with Great Britain; without it, future divergence will renew tensions again and again. Crucially, it would also help preserve the UK’s internal market, addressing some of the major concerns of the unionist community.

True, this compromise would require an exemption from EU law for Northern Ireland for sensitive products agreed by the Joint Committee. But the prize would be worth it; a more durable solution and one which keeps both communities in Northern Ireland on board. Furthermore, new common governance could reassure the commission and EU member states that risks to the single market are being monitored, with robust surveillance of business compliance, the commission having access to relevant UK databases and systems, and active cooperation between UK and EU public health authorities.

If this reads like an attempt at “bothsidesism,” it is. It is incumbent on both sides to protect the Good Friday Agreement and to avoid the protocol becoming a destabilising factor for Northern Ireland. This cannot be achieved without a distinct change in political attitudes and willingness to explore compromises.

Without resolution, the protocol will remain unpredictable and politically costly. This scenario can be avoided—but the window to act is closing.

Editor's note: This article was originally published in Prospect on June 9, 2021

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