Conflicting UK & EU proposals on Protocol set the stage for another difficult negotiation

On Tuesday, in a speech delivered to diplomats at the UK embassy in Lisbon, Lord David Frost, the UK Minister for the Cabinet Office, called for a new Protocol on Ireland/Northern Ireland, raised again the possibility of the UK unilaterally invoking the Article 16 Safeguards clause in the existing Protocol, and suggested that disputes regarding the application of the Protocol be dealt with by international arbitration rather than by the European Court of Justice (ECJ). The EU rejects any renegotiation of the Protocol, which is part of the 2019 Withdrawal Agreement between the EU and the UK, let alone negotiation of a new one, and yesterday it issued a set of proposals designed to reduce or eliminate a number of the customs checks and procedures that have caused delays or blocked altogether the movement of agricultural products, foods, and medicines from Great Britain to Northern Ireland. As a result, the stage is set for another difficult negotiation between the UK and the EU.

The Protocol, which, including annexes, is 63 pages in length, sets out the arrangements the EU and UK agreed would be necessary after the UK left the EU in order to address the unique circumstances on the island of Ireland—specifically, those needed to maintain North-South cooperation, avoid a hard land border between the Republic and Northern Ireland, and protect the 1998 Belfast (Good Friday) Agreement in all its dimensions. The arrangements, agreed by Prime Minister Boris Johnson in the autumn of 2019 after an earlier version of the Withdrawal Agreement negotiated by Theresa May’s government in 2018 had been rejected three times by the House of Commons, included most notably—and controversially—Northern Ireland continuing to adhere to the rules and regulations of the EU’s Single Market and applying the EU’s customs code and border procedures to all goods arriving from Great Britain. In effect, the Protocol created a border in the Irish Sea for goods moving from Great Britain to Northern Ireland in order to avoid a hard border between Northern Ireland and the Republic.

The 2019 Withdrawal Agreement provided for a transition period after the UK left the EU on January 31, 2020 until midnight on December 31, 2020, during which the UK would remain in the EU’s Single Market and Customs Union. On December 24, the EU and UK concluded their Trade and Cooperation Agreement (TCA) that was provisionally applied, pending subsequent approval by the European Parliament, as of January 1, 2021. That meant that since, as of that date, the UK would no longer be in the Single Market and Customs Union but, in accordance with the Protocol, Northern Ireland would continue to adhere to the rules and regulations of both, all goods and products arriving in Northern Ireland from Great Britain would be subject to the EU’s customs code and procedures.

In anticipation of that moment, in December European Commission Vice President Maroš Šefčovič and Chancellor of the Duchy of Lancaster and Cabinet Office Minister Michael Gove, the co-chairs of the EU-UK Joint Committee that oversees implementation of the Withdrawal Agreement, announced a series of arrangements that would temporarily exempt animals, plants, chilled meats and other agri-food products, medicines, parcels and other goods arriving from Great Britain and destined for consumption or use in Northern Ireland from the EU border checks and customs procedures that would otherwise have applied after midnight on December 31. The exemptions, known as grace periods, were granted to ensure that those goods would continue to be available to the citizens of Northern Ireland without delays or interruptions while businesses adapted to the new arrangements and procedures that would apply after the transition period ended.

The grace periods varied in length but most were for three months and thus scheduled to expire on April 1. Frost, who had been the UK’s chief negotiator of both the 2019 Withdrawal Agreement and the subsequent TCA, was appointed Minister of State in the Cabinet Office and replaced Gove as co-chair of the Joint Committee on March 1. Two days later, Brandon Lewis, the Secretary of State for Northern Ireland, issued a ministerial statement that the three-month grace period for agri-food goods scheduled to end on April 1 would be extended unilaterally for six months. That prompted the EU’s General Affairs Council to approve an infringement procedure against the UK. Subsequently, another dispute arose over an expiring grace period covering the shipment of chilled meats to Northern Ireland.

On July 21, the British government issued a Command Paper on the Protocol. The paper, entitled “Northern Ireland Protocol: the way forward,” called for new talks aimed at amending the Protocol and establishing a “new balance” in regard to the movement of goods between Great Britain and Northern Ireland. It noted that, while the Joint Committee agreed on time-limited grace periods for some goods moving from Great Britain to Northern Ireland, the default assumption – that all goods moving from Great Britain to Northern Ireland would be subject to the full checks and controls that apply to goods moving from third countries into the EU – remained in effect, even for goods from Great Britain that were destined only for consumption in Northern Ireland. It noted that supply chains had been disrupted; costs to businesses had increased; at least 200 companies in Great Britain had stopped supplying the Northern Ireland market, resulting in a substantial diversion of trade to Ireland; plants and trees long sourced from Great Britain could no longer be stocked in nurseries and garden centers; supermarkets had reduced their product lines because of delays and shortages; the supply of medicines produced in Great Britain was at risk of being interrupted; and pet owners and those relying on assistance dogs had encountered difficulties in travel within the UK. All in all, the paper concluded, “the current situation is not sustainable. The way the Protocol is working needs to change.”

The paper argued the significant disruption in trade between Great Britain and Northern Ireland and resulting diversion from Great Britain to Ireland as a source of goods for Northern Ireland, coupled with the societal and economic impact and the political and community instability that had occurred as a result, would justify the UK invoking the Article 16 “Safeguards” clause of the Protocol. That clause states, “If the application of this Protocol leads to serious economic, societal or environmental difficulties that are likely to persist, or to diversion of trade, the Union or the UK may unilaterally take appropriate safeguard measures…restricted to what is strictly necessary in order to remedy the situation.” The paper argued, “Article 16 was designed precisely with such circumstances in mind, allowing for either party to act unilaterally with appropriate measures, in a proportionate way and in a manner necessary to remedy the situation.” Nevertheless, it noted that, if Article 16 were to be invoked, it could be applied only to the specific difficulties identified, would be subject to the uncertainties of the as-yet-untested dispute settlement process, and would, at best, be only temporary.

For those reasons, the paper said the UK had concluded that, at least for the time being, it wasn’t appropriate for it to exercise its rights under Article 16, although such action “remains on the table as a possibility in the future if circumstances justify it.” Instead, it argued that, since the social and economic difficulties and trade diversion “derive from fundamental issues with the existing Protocol arrangements, not least the extensive customs and agri-food burdens they impose,…any solutions must fundamentally address those burdens for internal UK trade. That requires significant change to the Protocol, through a new balance of arrangements which can operate pragmatically and accord with the unique circumstances of Northern Ireland.” That being the case, “We now need urgent talks that can try to find a new balance for the Protocol: one that fully respects Northern Ireland’s place in the UK market, while maintaining the integrity of the EU’s own market…These talks need not look at all aspects of the Protocol…The focus should be on the arrangements covering trade in goods and on the overarching institutional framework put in place by the Protocol. It is in those aspects that the current provisions have led to the perceptions of unfairness and imbalance. It is here that we must find the new balance.”

Toward that end, the paper called for finding ways to remove the burdens on trade in goods within the UK while managing the real risks to the EU’s Single Market, which would mean ensuring that full customs and SPS (sanitary and phytosanitary) processes are applied only to goods destined for the EU. In addition, it said ways must be found to ensure that businesses and consumers in Northern Ireland can continue to have access to goods from the rest of the UK on which they have long relied. And thirdly, it said the governance of the Protocol should be “normalized” by having a “normal Treaty framework” such as exists with the TCA rather than an arrangement in which it is policed by EU institutions including the ECJ. A negotiation covering that ground could, the paper said, “ensure that the new settlement that we reach is a true balance of interest: putting the operation of a rebalanced Protocol onto an equitable footing which all sides own and are ready to operate fully, without being a constant source of tension as at present.“

The paper acknowledged that making those changes would require negotiation of an agreement that would amend the Protocol: “These changes will of course require a subsequent agreement, as envisaged under Article 13(8) of the Protocol, in order to amend, at least in part, certain provisions. We consider that such an amendment would fundamentally strengthen the Protocol’s ability to meet its core objectives.” Article 13 (8) of the Protocol states, “Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes. Once a subsequent agreement between the Union and the United Kingdom becomes applicable after the entry into force of the Withdrawal Agreement, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply as the case may be, in whole or in part.”

In concluding, the paper argued, “Across the island of Ireland, within the EU and across all parts of the UK, there is a desire to support the peace process in Northern Ireland, bolster the institutions, and support them in delivering prosperity, stability and a genuinely shared society in the longer-term. We must take the opportunity to support this shared drive and endeavour, and find a new balance which can address the trade diversion, and the economic and societal difficulties we have seen so far this year. The best way to do this is through finding new and durable arrangements agreed by the UK and the EU together, in which there is a shared ongoing interest in their success.”  

Šefčovič immediately responded to the paper and Frost’s presentation of it in the House of Lords. He noted the Protocol was a joint solution found by the EU working with Johnson and Frost and was part of the Withdrawal Agreement that was ratified by the UK Parliament. He also noted the EU has sought flexible, practical solutions to overcome the difficulties citizens in Northern Ireland were experiencing and noted, in particular, that in late June the Commission had tabled a package of measures to address certain pressing issues including the continued supply to Northern Ireland of medicines produced in Great Britain. He said the EU had taken note of Frost’s statement in the House of Lords and would “continue to engage with the UK, also on the suggestions made today. We are ready to continue to seek creative solutions, within the framework of the Protocol…However, we will not agree to a renegotiation of the Protocol. Joint action in the joint bodies established by the Withdrawal Agreement will be of paramount importance over the coming months. We must prioritise stability and predictability in Northern Ireland. I look forward to speaking to Lord Frost soon.”

Aware that the Commission had prepared a package of measures designed to address the issues that had arisen in regard to the movement of goods from Great Britain to Northern Ireland and would be announcing the measures yesterday, Frost arranged to address a group of EU diplomats at the Lisbon embassy Tuesday. The speech reiterated and underscored what the UK had said in the Command Paper three months ago. Frost noted the various issues that had arisen between the EU and the UK recently, including the EU’s ban on vaccine shipments to the UK earlier this year, the EU ban on the import of shellfish from the UK, the “knee-jerk resort to legal action on Northern Ireland,” and the accusations that the UK can’t be trusted and is not a reasonable international actor. But the biggest problem, he said, is the Protocol: “It is the biggest source of mistrust between us and for all kinds of reasons, we need to fix it….Maybe there is a world in which the Protocol could have worked, more sensitively implemented. But the situation has now moved on. We now face a very serious situation. The Protocol is not working. It has completely lost consent in one community in Northern Ireland. 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…We are asking you, the EU, to work with us to help us manage the delicate balance in the Belfast (Good Friday) Agreement and not to disrupt it – to reflect the concerns of everyone in Northern Ireland, from all sides of the political spectrum, and to make sure that the peace process is not undermined. The key feature of the Belfast (Good Friday) Agreement is balance – between different communities and between their links with the rest of the UK and the Republic of Ireland. That balance is being shredded by the way this Protocol is working. 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. The way this is happening is disrupting ordinary lives, damaging large and small businesses, and causing serious turbulence to the institutions of the Belfast (Good Friday) Agreement within Northern Ireland.”

Frost went on to say the UK had put forward proposals in the Command Paper that would not sweep away the Protocol, would not require infrastructure and check points at the border with the Republic, would retain the Irish Sea border for goods going on to the Republic, would maintain UK responsibility for implementing EU rules in regard to such goods, and would continue to protect the EU Single Market. He said the UK was awaiting the proposals Šefčovič would be announcing and was ready to discuss them and consider them “seriously, fully, and positively.” But, he said, “if we are going to get to a solution we must collectively deliver significant change. We need the EU to show the same ambition and willingness—to tackle the fundamental issues at the heart of the Protocol head on. That’s why I am sharing with the Commission today a new legal text—the text of an amended Protocol, reflecting the proposals in our Command Paper, and supporting, not undermining, the Belfast (Good Friday) Agreement.” The new Protocol, he said, is forward-looking and takes into account the TCA, which of course had not yet been negotiated when the Protocol was agreed. The amended Protocol, he said, looks “more like a normal Treaty in the way it is governed, with international arbitration instead of a system of EU law ultimately policed in the court of one of the parties, the European Court of Justice,“ as a result of which “the EU can make laws which apply in Northern Ireland without any kind of democratic scrutiny or discussion….Without new arrangements in this area, no Protocol will ever have the support across Northern Ireland it needs to survive.”

After noting that Article 13(8) of the Protocol allows for subsequent superseding agreements, Frost asked, “What does it cost the EU to put a new Protocol in place? As it seems to us, very little. There is no threat to the single market from what we are proposing. We are not asking to change arrangements within the EU in any way. We are not seeking to generalize special rules for Northern Ireland to any other aspect of our relationship. For the EU now to say that the Protocol—drawn up in extreme haste in a time of great uncertainty—can never be improved upon, when it is so self-evidently causing such significant problems, would be a historic misjudgment. It would be to prioritise EU internal processes over relieving internal turbulence in Northern Ireland; to say that societal disruption and trade distortion can be disregarded as mere background noise; perhaps even that they are an acceptable price for Northern Ireland to pay to demonstrate that ‘Brexit has not worked.’ To insist on this route would be to do a great disservice to Northern Ireland.…Of course you can insist on this route. But if you do, you must remember that it is this government that governs Northern Ireland as it does the rest of the UK. Northern Ireland is not EU territory. It is our responsibility to safeguard peace and prosperity in Northern Ireland, and that may include using Article 16 if necessary. We would not go down this road gratuitously or with any particular pleasure. But…it is our fundamental responsibility to safeguard peace and prosperity in Northern Ireland, and that is why we cannot rest until the situation has been addressed. The Protocol itself is clear that it respects the ‘essential state functions’ of the UK. It does not create some kind of co-dominion or co-responsibility with the EU in Northern Ireland.…The Protocol is there to support the Belfast (Good Friday) Agreement. The A16 safeguards are there to deal with the situation if it ceases to do so. We will always act with that in mind.”

Yesterday, the Commission approved and proposed a package of “bespoke arrangements” to further facilitate the movement of goods from Great Britain to Northern Ireland The package consists of four non-papers (EU-speak for non-legislative texts). The first non-paper, pertaining to food, plant and animal health (i.e., sanitary and phytosanitary (SPS) issues), proposes a vastly-simplified certification process that would reduce by roughly 80 percent the number of official checks required for a wide range of retail goods moving from Great Britain to be consumed in Northern Ireland, conditional on the UK completing construction of permanent border control posts, making use of specific packaging and labelling indicating the goods are for sale only in the UK, and reinforcing monitoring of supply chains. The second non-paper, pertaining to all goods moving from Great Britain to Northern Ireland, proposes simplifying and making customs formalities and processes easier and thereby reducing the documentation needed for goods moving from Great Britain to Northern Ireland by roughly 50 percent. Taken together, the changes proposed in these two non-papers would, the Commission said, “create a type of ‘Express Lane’ for the movement of goods from Great Britain to Northern Ireland, while at the same time providing for a robust monitoring and enforcement mechanism in order to protect the integrity of the Single Market.” The third non-paper proposes improving the exchange of information between stakeholders and authorities in Northern Ireland and the Commission in regard to the implementation of the Protocol by establishing structured dialogues with stakeholders, participation of stakeholders in meetings of the Specialized Committees that monitor implementation of the Withdrawal Agreement, and stronger links between the Northern Ireland Assembly and the EU-UK Parliamentary Partnership Assembly. The fourth non-paper proposes that, in order to ensure the uninterrupted long-term security of supply of medicines from Great Britain to Northern Ireland, pharmaceutical companies in Great Britain would be allowed to retain all their regulatory functions where they are now located, meaning that Great Britain could continue as a source for the supply of generic medicines for Northern Ireland even though it is, for the EU, a third country.

The four proposals announced yesterday don’t respond to all of the concerns expressed by the UK in its July Command Paper and reiterated in Frost’s speech on Tuesday. There’s no reason to think the EU will agree to either amending the existing Protocol or negotiating a new one. Nor will it agree to replace the ECJ with some form of international arbitration to resolve disputes between the parties. Nevertheless, when implemented, the measures proposed by the EU yesterday—especially those dealing with SPS certification and customs procedures—will significantly improve the movement of goods from Great Britain to Northern Ireland. In announcing its proposed “bespoke arrangements” yesterday, the Commission said it “now stands ready to engage in intensive discussions with the UK government, with a view to reaching a jointly agreed permanent solution as soon as possible.” Indeed, the discussions have already begun; after yesterday’s meeting at which the Commission approved the four non-papers, officials traveled to London to begin discussing the details with British officials, and tomorrow Šefčovič and Frost will meet in Brussels to start what the Commission expects will be “a period of intense discussions over the coming weeks.”

David R. Cameron is a professor emeritus of political science and the former director of the MacMillan Center’s Program in European Union Studies.