One the most contentious aspects of the UK’s Brexit “divorce” deal with the European Union has been revived – leading to criticism of the Tory government for “trashing” an agreement it had previously celebrated.
In a keynote speech in Lisbon on Tuesday, Brexit minister David Frost said Britain is ready if necessary to suspend the Northern Ireland Protocol – an arrangement that governs trade across the Irish Sea post-Brexit, agreed by the UK and EU in 2019.
The EU on Wednesday put forward its counter proposals – but will the apparent concessions be enough to solve the Irish border mess?
Negotiated as part of the Withdrawal Agreement, the protocol was how both sides overcame the main logjam in the Brexit divorce talks – the Irish land border dividing the Irish republic in the south (which is in the EU) and Northern Ireland (which is not).
Frost told EU leaders the agreement was not working, and said the UK was prepared to trigger Article 16 of the protocol – which allows either side to override large parts of the agreement – if fundamental change could not be achieved. He argued the deal was “drawn up in extreme haste in a time of great uncertainty” – despite the Brexit referendum being more than two years earlier.
The UK government says its concern stems from fears the existing protocol is undermining the peace process it was supposed to protect. Frost said the way the protocol was operating had “shredded” the balance between the two communities – unionist and nationalist – in Northern Ireland.
In response, the EU has laid out its new plan for a Brexit deal for Northern Ireland.
But critics pointed to the fact the protocol had been hailed as a triumph by Boris Johnson’s government, with the prime minister celebrating a “great deal” for Northern Ireland when it was agreed.
Theresa May’s former chief of staff Gavin Barwell, who was part of her government’s negotiating team as she failed to get a Brexit deal over the line in Westminster, said: “The absolute state of David Frost trashing the deal he negotiated and hailed as a triumph – despite many, yours truly included, warning it was a dud.”
Anger was stoked further when Johnson’s former chief adviser Dominic Cummings admitted that in the background they knew the deal would need to be revised.
“So we wriggled through with best option we could and intended to get the trolley (his derogatory nickname for the prime minister) to ditch bits we didn’t like after whacking (Labour leader Jeremy) Corbyn. We prioritised,” he said
What is the Northern Ireland protocol?
To avoid disrupting cross-border trade and a return of checkpoints along the politically sensitive frontier, London and Brussels essentially agreed to move new regulatory and customs processes to the Irish Sea.
That meant checks on trade between Great Britain and Northern Ireland, rather than on goods moving north and south within the island of Ireland.
Products shipped from Northern Ireland to Great Britain are largely unaffected by the protocol. The red tape instead applies on movement in the other direction.
Since December 31, a range of regulatory animal and plant safety checks have been in operation, including physical inspections for a proportion of freight arriving at Northern Ireland ports. Customs declarations are also required for incoming commercial goods.
While the rest of the UK has left, Northern Ireland has remained in the EU single market for goods. The region also applies EU customs rules at its ports, even though it is still part of the UK customs territory.
The protocol also sees Northern Ireland follow certain EU rules on state aid and VAT on goods.
Is the NI protocol fully operational?
No. Late last year the UK and EU agreed a range of grace periods designed to reduce the level of Brexit bureaucracy in the initial months of operation.
While a range of new checks and processes have been applied since January, those would be dwarfed in scale by the volume of red tape anticipated if the exemption periods ever lapse.
Northern Ireland’s health minister has warned about potential for medicine shortages if new rules come into effect that restrict Northern Ireland’s ability to access supplies from GB.
Apart from the 12-month exemption on medicines, most of the other grace periods should have already lapsed under an original timetable agreed by the EU and UK last year.
However, the political discord over the protocol has seen those exemptions extended several times, on occasion with EU agreement but mostly as a result of unilateral action by the UK. In the latest UK solo run, the government declared an indefinite extension of all the exemptions while it sought to secure permanent changes to the protocol.
What did Frost say in Lisbon?
In his address, Frost was adamant that the “protocol is not working” and has “completely lost consent in one community in Northern Ireland”, a reference to unionists who are pressing for change, fearing their place within the UK is being undermined.
He argued the agreement was drawn up in “great haste”, and that it would be a “historic misjudgment” by the EU to argue that the arrangements in the protocol could never be improved upon.
He said: “It is not doing the thing it was set up to do – protect the Belfast/Good Friday Agreement. In fact it is doing the opposite. It has to change.”
Why the focus on the European Court of Justice?
Among the changes the UK is seeking is replacing the role of the European Court of Justice (ECJ) in policing the protocol with a system of international arbitration.
Under the terms of the protocol the ECJ would be the final arbitrator on any future disputes between the UK and EU on the operation of the protocol.
The government has said it only agreed to an ECJ role in the protocol due to the “very specific circumstances of that negotiation” as the UK pressed to get a Brexit deal done.
The ECJ issue has not featured significantly in the intense public and political debate over the protocol in Northern Ireland, and the UK government has been accused of deploying an artificial “red line” with the EU that is a “dead cat” distraction technique.
For instance, it is not mentioned explicitly in any of the seven tests the Democratic Unionist Party has set out to judge any proposed changes to the arrangements.
Frost said on Tuesday: “The fundamental difficulty is that we are being asked to run a full-scale external boundary of the EU through the centre of our country, to apply EU law without consent in part of it, and to have any dispute on these arrangements settled in the court of one of the parties.”
What does the EU say?
Frost’s speech came the day before the EU was due to produce its plans to resolve issues surrounding the protocol.
He said the UK would consider whatever European Commission vice president Maros Sefcovic put forward “seriously, fully, and positively”.
But he insisted the UK’s proposals – which it is circulating in a formal legal text based on a command paper published earlier this year – sought to work “with the grain” of the protocol and would not undermine the single market.
On Wednesday, Sefcovic outlined proposals to cut Irish Sea trade red tape, a move he said could open up the “home stretch” to solving the row.
The measures would see an 80% reduction in checks envisaged for retail agri-food products arriving in Northern Ireland from Great Britain.
The proposed changes also remove the prospect of certain British produce, including Cumberland sausages, being banned from export to the region.
And the EU plan includes a 50% reduction in customs paperwork required to move products into Northern Ireland from Great Britain.
However, the measures do not offer any concession on the removal of the oversight role for the ECJ.
Sefcovic said: “We continue to stand united behind Northern Ireland while at the same time remaining determined to protect our internal market.
“Now I invite the UK government to engage with us earnestly and intensively on all our proposals.”
What about the wider debate in Northern Ireland?
Businesses who move goods from Great Britain to Northern Ireland have been saddled with added costs and reams of new red tape, and many traders have encountered problems shipping goods across the Irish Sea. In the early weeks of 2021, this was evidenced by depleted supermarket shelves in Northern Ireland.
Politically, unionists and loyalists are furious from a constitutional perspective. They believe the arrangements have driven a wedge between Northern Ireland and the rest of the UK, with the protocol forcing an economic reorientation with the Irish Republic.
Unionist politicians have demanded that the UK government intervenes to radically redraw the protocol or ditch it completely, calling on Article 16 to be triggered.
The protocol is seen as a contributory factor to the flux that has been witnessed within political unionism since the turn of the year – which has seen two DUP leaders ousted – and simmering discontent within the loyalist community that spilled over into street violence in April.
Sinn Fein, the SDLP and Alliance were all opposed to Brexit. Those Remain parties insist the problems being experienced in Northern Ireland are the outworking of Brexit, rather than the protocol itself.
While acknowledging that issues with the protocol need to be addressed, they oppose any move to bin the arrangements entirely.