The UK's Gambit on the Northern Ireland Protocol Will Fail

UK Policy Prosperity

The UK's Gambit on the Northern Ireland Protocol Will Fail

Posted on: 23rd July 2021
Anton Spisak
Senior Fellow, UK Policy

When the UK agreed to the Northern Ireland Protocol in October 2019, Prime Minister Boris Johnson described it as an “excellent deal”. After the deal came into force and its consequences became more evident, he said that he wanted to “sand-paper” it into shape. This week, the government has published a new “command paper” on Northern Ireland, arguing the same deal was now filled with ambiguities and contradictions so large that it should be renegotiated.

The government says that the current protocol has created a situation which “all sides find unsatisfactory”. It lists evidence of trade diversion, consumer problems and economic difficulties attributable to the protocol. It also claims to have considered using special safeguards – the infamous Article 16 – only to conclude that while “the circumstances exist to justify” using this provision and acting unilaterally, it is “not appropriate to exercise” it now.

The answer to these problems, we are told, is to renegotiate core parts of the protocol and replace them with a new set of arrangements. These proposals would reduce checks on goods moving from Great Britain to Northern Ireland, but they would require the EU to accept domestic GB regulations for all goods going to Northern Ireland and to trust the UK government to enforce those rules on the ground. Unlike in the current protocol, there would be no involvement of EU institutions.

This is not a proposal that seeks to tinker with the rough edges of the protocol or to soften its implementation. Rather, it is a proposal that rewrites its fundamentals: the rules on goods crossing the Irish Sea from Great Britain to Northern Ireland; the customs formalities for products going in the other direction; the state-aid rules that continue to apply to the province; and the provisions governing the protocol, including scrapping a role for the European Court of Justice.

In its analysis of the problems, the government does have a point. The protocol is ripe with legal ambiguities. It is creating tangible practical challenges on the ground. And it will be difficult to sustain without cross-community support in Northern Ireland which it currently lacks. But to say that the government did not know what it was signing or, worse, that it was forced into the act is false. The ministers knew the consequences, as their own impact assessment of the “oven-ready deal” shows, but they chose not to care.

Now the government, with clumsy diplomacy and exhibiting limited understanding of the EU, has undermined its own case for changing the protocol. It has, on the one hand, suggested a solution that requires high levels of trust, while on the other it has sought to remove the governance provisions that formalise trust between partners. It has asked to be trusted for policing the EU’s external border while also giving the EU an ultimatum. And it has self-pitied and blamed everyone for the current situation rather than accepted any share of responsibility for it. There are viable solutions that could make the protocol work in less intrusive ways – but this is not one.

If this was a genuine attempt to convince Brussels of the viability of the UK’s proposal, then the government set its own trap. The EU will reject these proposals because it cannot accept them. The Commission president, Ursula von der Leyen, has already responded by saying that it will not renegotiate the protocol. What the document has achieved, however, is that the Commission will feel justified to step up legal action in an ongoing case for the UK’s unilateral decision to extend the grace periods, a move which it has so far resisted.

In the first instance, London will be keen to emphasise that, with some of the grace periods expiring at the end of September, the Commission should at least agree to a “standstill period” to create some breathing space for the new negotiations. When the EU rejects this prospect, the government will feel empowered to act unilaterally by using Article 16. Then, the EU would respond by launching a second legal case against the UK for its failure to implement the protocol in “good faith”.

While the immediate consequence of all this is a series of arcane but unpleasant legal fights between London and Brussels, they will sooner or later bite for the UK government. A deteriorating situation will lead to a new low for the political and diplomatic relations between two long-standing allies; a collision with Washington over the UK’s commitment to Northern Ireland and the basic principles of international law; and an imposition of retaliatory tariffs by Brussels on British exports destined for the content. Most acutely, for the people and businesses in Northern Ireland, it will mean even more uncertainty, less predictably, and greater community division than what the protocol had already reignited

This all could be avoided if the UK government, like any business that realises that it cannot live up to its contractual obligations, approached the task ahead differently: if it asked, in good faith, for changes to the protocol. Ultimately, the Johnson government signed up the agreement voluntarily, in full knowledge of its consequences, and in line with the common principles of international law. Pacta sunt servanda – commitments must be honoured – means that London cannot do whatever it wants. Neither self-pity nor denial of responsibility will change that.

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