EU and UK signal some progress in this week’s talks on the Protocol

Today, Lord David Frost, the British Cabinet Office Minister, and European Commission Vice President Maroš Šefčovič, the co-chairs of the Joint Committee that oversees implementation of the EU-UK Withdrawal Agreement, met in Brussels to take stock of the discussions this week between their teams in regard to the implementation of the Protocol on Ireland/Northern Ireland contained in the Agreement and, in particular, to the proposals put forward by both sides to address the difficulties that have arisen in the movement of goods from Great Britain to Northern Ireland. The good news: Both sides signaled they have made progress this week. The bad news: They’re still some distance from an agreement.

The Protocol 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 in 2019 after the Withdrawal Agreement negotiated in 2018 under which the UK would remain in a “single customs territory” with the EU had been rejected three times by the House of Commons, stipulated that while, as previously agreed, Northern Ireland would continue to adhere to the rules and regulations of the EU’s Single Market, the EU’s customs code and border procedures would apply to all goods arriving in Northern Ireland from Great Britain. In effect, the revised Protocol created a border in the Irish Sea for goods moving from Great Britain to Northern Ireland in order to avoid creating either a hard border between Northern Ireland and the Republic or, alternatively, a single customs territory between the UK and the EU.

The 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. Last Christmas Eve, the EU and UK concluded their Trade and Cooperation Agreement (TCA), which was provisionally applied, pending 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 Šefčovič and Cabinet Office Minister Michael Gove, the co-chairs of the Joint Committee, 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 use in Northern Ireland from the EU border checks and customs procedures that would otherwise have applied as of 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, and two days later a ministerial statement was issued that the UK would unilaterally extend the three-month grace period for agri-food goods scheduled to end on April 1 for six months. That prompted the EU’s General Affairs Council to approve an infringement procedure against the UK. Subsequently, another dispute arose over another expiring grace period covering the shipment of chilled meats to Northern Ireland.

In July, the British government issued a Command Paper in which it 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 had agreed on time-limited grace periods for some goods moving from Great Britain to Northern Ireland, all other goods moving from Great Britain to Northern Ireland, including those destined only for consumption in Northern Ireland, were subject to the full checks and controls that apply to goods moving from third countries into the EU. 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. 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 of trade 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, which states, “If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the UK may unilaterally take appropriate safeguard measures.” The paper argued that Article 16 was designed to deal with precisely the type of issues that had arisen in regard to the movement of goods from Great Britain to Northern Ireland. On the other hand, it also noted that, if Article 16 were 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, it 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, the paper called for “significant change to the Protocol, through a new balance of arrangements which can operate pragmatically and accord with the unique circumstances of Northern Ireland.” Toward that end, it called for “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.”

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 sanitary and phytosanitary (SPS) health processes are applied only to goods destined for the EU. In addition, it said ways had to be found to ensure that businesses and consumers in Northern Ireland could continue to have access to goods from the rest of the UK on which they have long relied. Importantly, it also 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 European Court of Justice. 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 to amend the Protocol but argued that Article 13(8) of the Protocol unambiguously allows for amendment. That article 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.”

On October 13, the Commission proposed a package of “bespoke arrangements” to address some of the difficulties encountered in the movement of goods from Great Britain to Northern Ireland. The package consisted of four “non-papers” (the EU’s term for non-legislative texts). The first, pertaining to food, plant and animal health issues, proposed 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, among other things, packaging and labelling that indicates the goods are for sale only in the UK and reinforced monitoring of supply chains. The second, pertaining to all goods moving from Great Britain to Northern Ireland, proposed simplifying customs formalities and processes, thereby reducing the documentation needed for goods moving from Great Britain to Northern Ireland by roughly 50 percent. Taken together, those changes 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” proposed improving the exchange of information between stakeholders and authorities in Northern Ireland and the Commission by establishing structured dialogues with stakeholders and including them in meetings of the Specialized Committees that monitor implementation of the Withdrawal Agreement and by creating stronger links between the Northern Ireland Assembly and the EU-UK Parliamentary Partnership Assembly. The fourth “non-paper” proposed 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 retain all of 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.

Since mid-October, teams of EU and UK trade experts have been at work on the arrangements proposed by the Commission, and Frost and Šefčovič have met, alternating in London and Brussels, each Friday, today for the fifth time, to take stock of the week’s discussions. After today’s meeting, Frost tweeted that the talks between the teams this week were “intensive and constructive.” And welcoming Šefčovič’s acknowledgement in a speech earlier today that the Protocol has led to unintended consequences in Northern Ireland, Frost said, “There is the potential to generate some momentum in our discussions.” However, noting that the discussions this week had focused on medicines, customs and SPS issues, he also said that “significant gaps remain across most issues.” For example, while there has been progress in ensuring the timely availability of medicines made in Great Britain for those needing them in Northern Ireland, he noted agreement on that high-priority issue has not yet been reached. Any acceptable solution, he said, “needs to ensure that medicines are available at the same time and on the same basis across the whole of the UK.” And  he noted that “we have not yet made substantive progress on the fundamental customs and SPS issues relating to goods moving from Great Britain to Northern Ireland. A durable solution here requires goods to be able to move essentially freely into Northern Ireland when both sides agree that they are remaining in Northern Ireland.” Looking forward, Frost said “the UK’s preference remains to secure a solution based on consensus.” But, he added, “any such solution must constitute a significant change from the current situation, materially ease practical problems on the ground, and safeguard political, economic and societal stability in Northern Ireland.” And lest anyone forgot, he made it clear that Article 16 is still on the table: “If no such solution can be found, we remain prepared to use the safeguard provisions under Article 16, which are a legitimate recourse under the Protocol in order for the Government to meet its responsibilities to the people of Northern Ireland.”

In his statement following the meeting, Šefčovič “reiterated the need to shift into a result-oriented mode and to deliver on the issues raised by Northern Irish stakeholders. It is essential that the recent change in tone now leads to joint tangible solutions in the framework of the Protocol.” Noting the urgency of ensuring the uninterrupted long-term supply to Northern Ireland of medicines produced in Great Britain, he said, “We welcome the progress this week. We now need to press on and get this crucial issue across the line. This is a real test of political goodwill. The EU, for its part, is confident that our proposed solution, addressing all concerns raised by industry, would bring much needed clarity and foster a positive political momentum” In regard to customs, he said “there has been initial useful engagement at the technical level. These discussions, which aim to significantly reduce not to eliminate customs processes, should be pursued.” But he also urged the UK “to make a clear move towards us in the area of sanitary and phytosanitary controls to reciprocate the big move made by the EU,” noting that the EU’s proposed solution “would lead to a very significant simplification of certification and a reduction in checks. Identity and physical checks would be reduced by around 80 percent compared to the checks currently required.”

The EU and UK are still a long way from reaching an agreement on the issues raised by the UK in its July Command Paper. But they are at least beginning to make some progress. The discussions at the expert level will continue next week and Frost and Šefčovič will meet in London next Friday.

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