Continuing UK-EU dispute over Brexit Protocol dominates G7 meeting

Judging from the press commentaries, one might think the G7 leaders met in Cornwall last week primarily to urge British Prime Minister Boris Johnson to cooperate with the EU in resolving the continuing post-Brexit trade disputes between the UK and EU. Following his meeting with President Joe Biden last Thursday and his meetings Friday and Saturday with French President Emmanuel Macron, German Chancellor Angela Merkel, Italian Prime Minister Mario Draghi, and European Council President Charles Michel and European Commission President Ursula von der Leyen, the press commentaries emphasized a common message—that the leaders had urged Johnson to cooperate with the EU and, in particular, to adhere to the terms of the Protocol on Ireland/Northern Ireland contained in the 2019 EU-UK Withdrawal Agreement and not take any unilateral action that would violate those terms.

The Protocol sets out the arrangements the EU and UK agreed would be necessary after the UK’s exit from 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 border between the Republic and Northern Ireland, and protect the 1998 Good Friday/Belfast Agreement in all its dimensions. The arrangements include, most notably, 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 or elsewhere outside the EU. In effect, the Protocol created a border in the Irish Sea for trade between Great Britain and Northern Ireland in order to avoid a hard land border between Northern Ireland and the Republic.

The EU-UK 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, 2020, 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 EU’s single market and customs union, all goods and products arriving in Northern Ireland from Great Britain would, in accordance with the Protocol, 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 in Northern Ireland from the EU border checks and customs procedures that would otherwise have applied after the transition period ended at midnight on December 31, 2020. Colloquially known as grace periods, the exemptions were granted to ensure that those goods would continue to be available to the citizens of Northern Ireland without delays or interruptions. The grace periods varied in length but most were for three months and thus would expire as of April 1, 2021. 

In early February, Gove wrote Šefčovič and said there was an urgent need to restore confidence in and protect the Good Friday Agreement and to take steps to assure that the Protocol affected everyday life in Northern Ireland as little as possible. Toward that end, he proposed that the grace periods agreed by the Joint Committee in December be extended. Specifically, he proposed that the grace periods for supermarkets and their suppliers and for parcels, including mail, scheduled to end on April 1 be extended to 2023; that the arrangements on the movement of medicines agreed in December be extended to 2023; that measures be taken to ensure the continued tariff- and quota-free movement of steel into Northern Ireland; that a bilateral arrangement be made to address the barriers that exist in regard to the movement of pets between Great Britain, Northern Ireland and Ireland; and that the unique circumstances in Northern Ireland and Ireland that apply to the movement of plant products be addressed. Gove and Šefčovič met virtually on several occasions throughout February and at each meeting both sides reiterated their commitment to the Good Friday Agreement and the proper implementation of the Protocol and their commitment to work intensively to find solutions to outstanding issues. But notwithstanding the EU’s repeated expression of its commitment to address the UK’s concerns, none of the grace periods were extended.

In late January, Johnson had announced the appointment of Lord David Frost as his representative for Brexit and international policy. Frost had advised him on Europe when he was Foreign Secretary in 2016-18 and, after Johnson became prime minister in July 2019, Frost had served as the UK’s chief negotiator in the renegotiation of the withdrawal agreement and then, after its 2020 exit, as the UK’s chief negotiator of its post-Brexit relationship with the EU. Three weeks after the January announcement, Johnson elevated Frost to the cabinet as Minister of State in the Cabinet Office. With that appointment, he took over Gove’s responsibilities as co-chair of the EU-UK Joint Committee and co-chair of the EU-UK Partnership Council that oversees the implementation of the TCA.

Frost assumed the new positions 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 scheduled to end on April 1, during which agri-food moving from Great Britain to Northern Ireland was exempt from the EU’s Export Health Certificates, would be extended for six months until October 1 and that certification requirements would then be introduced in phases alongside the roll-out of a digital assistance scheme. Describing it “as part of the pragmatic and proportionate implementation of the Northern Ireland Protocol,” he said the government was taking “several temporary operational steps to avoid disruptive cliff edges as engagement with the EU continues through the Joint Committee.”

Following that statement, Šefčovič issued a statement in which he expressed the EU’s “strong concerns over the UK’s unilateral action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.” Referring to provisions in the UK’s draft of its Internal Market Bill last year that would have violated provisions in the Withdrawal Agreement, he said, “This is the second time that the UK government is set to breach international law.” Continuing,  he said, “This also constitutes a clear departure from the constructive approach that has prevailed up until now, thereby undermining both the work of the Joint Committee and the mutual trust necessary for solution-oriented cooperation. It is equally disappointing that the UK government has resorted to such unilateral action without informing the EU’s co-chair of the Joint Committee. Issues relating to the Protocol should be dealt with through the structures provided for by the Withdrawal Agreement.” He said he would call Frost later that day and inform him that the Commission “will respond to these developments in accordance with the legal means established by the Withdrawal Agreement and the Trade and Cooperation Agreement.”

On March 9, after hearing from Šefčovič, the EU’s General Affairs Council, consisting of the member states’ ambassadors to the EU, agreed to launch a formal infringement proceeding against the UK, the first step of which involves the issuance of a letter of formal notice that includes a request for a response within a specific period of time. On March 15, the Commission announced it had sent a letter of formal notice to the UK “for breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland. This marks the beginning of a formal infringement process against the United Kingdom.” The letter requested the UK to carry out “swift remedial actions to restore compliance with the terms of the Protocol.” The EU gave the UK one month to reply to the letter.

Also on March 15, Šefčovič sent a “political letter” to Frost informing him that the UK’s unilateral action without any discussion or consultation with the EU constitutes a “breach of the mutual trust and spirit of cooperation that we managed to rebuild in the last months of 2020….and is a violation of Article 5(3) and (4) of the Protocol on Ireland/Northern Ireland…and amounts in itself to a violation of the duty of good faith provided for in Article 5 of the Withdrawal Agreement.” He informed Frost the Commission was initiating infringement proceedings and told him the letter of formal notice addresses “the breaches of the Protocol by UK authorities and asks for swift remedial actions to ensure compliance with the provisions of Union law made applicable by the Protocol.” He called on the UK government “to rectify and refrain from putting into practice the statements and guidance published on 3 March and 4 March 2021 and to provide the Union a credible roadmap, with clear deliverables and milestones for the implementation of the relevant rules and requirements of the Protocol for which implementation is deficient or delayed. I expect these actions to be implemented before the end of the month in order to restore trust.” He informed Frost that “should the UK government fail to enter into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution by the end of this month, I intend to provide written notice to the Joint Committee to commence consultations under Article 169 of the Withdrawal Agreement, as a first step in the dispute settlement process set out in Title III of Part Six of the Withdrawal Agreement.”

Last Wednesday, Frost and Šefčovič met in London as the co-chairs of the Joint Committee, charged with overseeing the implementation of the Withdrawal Agreement, and co-chairs of the Partnership Council, charged with overseeing the implementation of the TCA, which was approved by the European Parliament and Council in late April and entered into force on May 1. It was the first meeting of the Withdrawal Agreement Joint Committee since February, when Gove was still the co-chair, and the first meeting of the Partnership Council. Their discussion as co-chairs of the Partnership Council reportedly took place in a “constructive atmosphere” and focused on establishing an indicative timetable for upcoming meetings of the various Joint Committees established by the TCA and implementation of the TCA in the areas of sanitary and phytosanitary (SPS) measures, customs, fisheries, law enforcement and judicial cooperation, with the UK emphasizing the need to continue and deepen cooperation in regard to customs and SPS.

But the same could not be said of their discussion, as co-chairs of the Joint Committee, regarding the implementation of the Withdrawal Agreement. In the run-up to the meeting, a new issue pertaining to the Protocol had arisen, notwithstanding the fact that the UK was already on formal notice of an infringement proceeding. EU food safety rules don’t allow chilled meat products – i.e., sausages, mince, chicken nuggets, etc. – to enter the EU market from non-members. Frozen meats are allowed but not chilled meats. In December, the EU agreed to a six-month grace period during which the prohibition against chilled meats wouldn’t apply to shipments from Great Britain to Northern Ireland while businesses in Northern Ireland lined up alternative sources either there or in the Republic. The six-month grace period will end on July 1 and some in the UK, including in the government, have called on the UK to unilaterally extend the grace period allowing chilled meats to enter Northern Ireland from Great Britain beyond July 1. Johnson, speaking in the House of Commons, made it clear the government would defend the right of people in Northern Ireland to have “free and uninterrupted access to goods and services from the whole of the UK” and implied the government would, if need be, unilaterally extend the grace period. Šefčovič urged the UK not to unilaterally extend the grace period and instead align its rules regarding food and agriculture checks with those of the EU so as to reduce the number of inspections needed in the ports of Northern Ireland.

In his statement after the meeting, Šefčovič emphasized that the UK must abide by its legal obligations and perform the required SPS controls between Great Britain and Northern Ireland since they can’t be performed between Northern Ireland and Ireland. He noted there were still “numerous and fundamental gaps in the UK’s implementation of our agreement. These gaps need to be filled by mutually agreed compliance paths, with concrete deadlines and milestones for the UK to fulfil its existing obligations.  There is no other way around this….Today we are at a crossroad in our relationship with the UK. Trust—which should be at the heart of every partnership—needs to be restored…If the UK were to take further unilateral action over the coming weeks, the EU will not be shy in reacting swiftly, firmly and resolutely to ensure that the UK abides by its international law obligations….We discussed it at great length this morning, when I was clearly advising against unilateral action and I was explaining what our steps would be….Our patience is wearing very, very thin, and therefore we have to assess all options we have at our disposal.”

Frost for his part said after the meeting the Protocol was being implemented “in a way which is causing disruption in Northern Ireland and we had some pretty frank and honest discussions about that situation….There weren’t any breakthroughs, there weren’t any breakdowns either and we’re going to carry on talking. What we really now need to do is very urgently find some solutions which support the Belfast Good Friday Agreement, support the peace process in Northern Ireland, and allow things to return to normal….We don’t see what risk is caused to Northern Ireland if chilled meats are imported there from GB.”

Frost accompanied Johnson in his meetings with the European leaders at the G7 meeting. Cornwall is a beautiful place. But after hearing ad nauseam why the UK should be able to send chilled meats to Northern Ireland, despite the prohibition in the Protocol to which it agreed and its acknowledgment in December that the six-month grace period until July 1 would provide sufficient time for Northern Ireland businesses to find other sources, those leaders must have been glad to leave.

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