The Northern Ireland protocol is currently caught between a suspicious Brussels and an unrealistic London
While a number of issues in the Northern Ireland Protocol require technical and legal correcting, at this point there appears to be little point in discussing them, writes Colin Murray. It is because key players speak for such opposing ends that the most controversial issues cannot be resolved.
Hosting a G7 should have offered a golden opportunity for Boris Johnson to promote the UK’s post-Brexit agenda on the world stage. Instead, almost inevitably given the events of the past few years, the summit’s headlines have been dominated by wrangling over the Northern Ireland protocol. Northern Ireland is increasingly seen as a toy thrown at the whims of London and Brussels in a swirling blame game.
Part of the problem has been a lack of clarity on the issues with how the protocol works. In ministerial statements over the past few months, the protocol has been described as suffering from everything from startup issues to a few ‘barnacles‘requiring sanding to improve its performance, even requiring a significant readjustment. It could indeed be argued that a mixture of these factors is at play. Some problems, such as the impact of steel tariffs or how the protocol affected people moving between different parts of the UK with service animals such as guide dogs were not fully taken into account before the entry into force of the protocol (teething problems). Some issues were deliberately left out when negotiations were concluded in December 2020, with sufficient grace periods to allow for the development of a meaningful UK-EU solution, as can be seen in regarding the authorization of medicinal products (unresolved issues).
And then there are the major potential alterations. Throughout the Brexit transition period in 2020, sanitary and phytosanitary (SPS) controls have been flagged as a major issue with the protocol. These checks are important for public safety and episodes like the horse meat scandal demonstrate how quickly public confidence in food standards can collapse if supply chains are not carefully monitored. Short-term grace periods have been put in place in the December 2020 Agreement to mitigate the impact of some of these controls, but not all. This result, however, led to a considerable number of SPS checks on trade from Great Britain to Northern Ireland in the first few months of the protocol’s application (and more to come after the grace periods expired). By concluding the December 2020 agreement, let us remember, the British government has accepted that this will happen. It is not surprising that a high proportion of SPS checks for the whole of the EU are currently carried out on this trade; these measures entered into force with a brutal shock on active supply chains. It takes time for trade relations to adjust to the changes brought about by Brexit.
Basically, the UK and the EU have designed the trade aspects of the protocol very differently since its inception. The EU believed that the deal kept Northern Ireland in the EU’s single market for goods, with all that involved. The UK government saw the deal as a necessary evil to push Brexit across the line, and that it could be dismantled, or at least fundamentally reshaped, once the UK left the EU. The problem with this approach is that the legal mechanisms of the protocol contribute to the understanding of the EU, and therefore what remains in the UK in terms of adjustments or mitigations that can be implemented on its own initiative are obvious violations of the terms of the protocol.
the UK government thus presented the EU as being ready to jeopardize the peace process in Northern Ireland because of its dogmatic maintenance of the single market, and also suggested that the consequences of the protocol could not have been understood when it was concluded. There is something contradictory in these arguments. The EU has long maintained a set of highly integrationist single market arrangements; Brussels’ red tape was indeed anathema to Brexit supporters. Once the UK government agreed that the Protocol’s provisions would keep Northern Ireland within the EU’s single market for goods, it agreed that Northern Ireland’s alignment with the EU in terms merchandise trade did not pose a threat to the 1998 agreement.
The British government signed up to it, but it never accepted its share of ownership of these agreements. It is also unattractive to claim that the EU is dogmatic, as responses to the EU’s proposals on SPS alignment have been met with vehement claims that such an alignment would limit the UK government’s freedom to enter into negotiations. trade agreements with other countries. The UK has rushed to strike a trade deal with Australia, including accepting agricultural imports that the EU would exclude, which could hamper further talks on UK-EU SPS Alignment (the extent to which it has that impact versus claiming to have that impact will be closely scrutinized once the full terms of the deal are released). Such shameless assertions of sovereignty are indeed ‘monolithic“and no less dogmatic, given that the British government has agreed that part of its territory is locked into a set of trade rules which it cannot control.
This can be reduced to a conflict between UK-EU SPS alignment (even temporary), favored by the EU, and UK and EU accepting the equivalence of their respective SPS standards with targeted interventions. based on identified risks, favored by the UK. Once again, the protocol to which the British government has agreed puts the best cards in the hands of the EU. Northern Ireland is governed by EU single market rules and any unilateral extension of grace periods is a clear violation of the protocol. Supply chains were going to have to adapt to Brexit, which means trade between the EU and Northern Ireland will likely replace heavier or more expensive trade between Britain and Northern Ireland. North. By requiring the EU to accept mitigation measures on UK terms, the UK government is pushing for a risk-based model that conflicts with the alignment model on which the Single Market is based and also calls on the ‘EU to forgo these advantages for its companies.
It would be a tough sell at best. In reality, Brussels has come to view the UK as an unreliable partner, seeking to generate continued tension in an attempt to dump the protocol – the UK has accepted short grace periods in the negotiations that have come to an end. concluded in December 2020 and implemented unilaterally within a few months. extensions. Indeed, the assurances the British government has given to its supporters that the terms of the protocol could be falsified have both exaggerated its capacity for unilateral action and helped to give the impression that it seeks to gradually cancel what he agreed in 2019.
Northern Ireland’s own representatives are not playing a big role in resolving this impasse. Trade unionists risk being treated by Brussels as willing London sidekicks, as tensions over protocol implementation play into the Johnson government’s arguments for major adjustments to the protocol. The DUP has certainly played a part in this narrative throughout the Brexit negotiations. that of Michel Barnier briefs present the leadership of the DUP as never being positively engaged in post-Brexit problem solving. Although the new DUP leader Edwin Poots has recognized the importance of protecting the EU’s single market, he has not explained how to achieve this, the protocol abandoned and no additional trade barriers emerge on the island of Ireland.
Maybe the DUP’s position, ‘that’s all Brussels / Dublin fault ‘(or, to be precise, the fault of the previous Irish government led by Fine Gael), was inevitable given that Northern Ireland’s elected representatives have such limited direct word in the post-Brexit governance arrangements of the protocol. There is no obligation to resolve the issues, and the continued tension builds political support ahead of the crucial Assembly election in 2022. However, being so adamantly linked to the Johnson administration undermines any prospect of any engagement. the EU with unionist concerns. A positive unionist engagement on protocol mitigations, on the part of the DUP or more likely a reborn UUP under Doug Beattie, might be the only way to change this image. Without this development, the EU has practically come to the conclusion that there is little point in engaging concretely with Unionist concerns because nothing on the table will ever be acceptable if the protocol is in effect “inapplicable‘.
Two factors must be taken into account. First, there is no viable alternative to the protocol: Brexit imposes trade barriers, and these have to come into force somewhere. Businesses in Northern Ireland are already struggling to adapt to the protocol, but tossing it all up makes the demand for more adaptation. Second, everyone in Northern Ireland benefits if the protocol can be watered down; this reduces the costs of doing business with Northern Ireland. While the efforts to destroy the protocol are deeply destabilizing, talking about its rigorous implementation potentially denies any room for beneficial adjustments. Implementation and agreed mitigation are not mutually exclusive.
In short, it seems that there is very little point in discussing technical / legal fixes at this time, as key players speak for such conflicting purposes that the most controversial protocol issues cannot be resolved. That’s not to say that the adjustments won’t be coming in the near future; they will likely deal with issues such as drugs, steel imports and service animals that were deliberately herded in earlier stages of negotiations or that early implementation of the protocol revealed as issues. On checks on chilled meats etc, further unilateral UK extensions of grace periods are looming (bringing the issue closer and closer to the doors of the EU Court of Justice) ).