Last reviewed 4 August 2021
In a sharp critique of the Northern Ireland Protocol this month, the well-known Irish writer Fintan O'Toole said: “If you ask a stupid question, you get a stupid answer”.
The background to the Protocol (the stupid answer in his terms) was the awkward fact that Northern Ireland is the only part of the UK to have a land border with the EU and so needs to have in place some form of checking system for goods moving between the two. The one thing that everyone involved in the Brexit talks agreed on, however, was that there could not be a return to the “hard border” between the two parts of Ireland that had seen so much bloodshed during The Troubles.
There must be an alternative
Many Brexit supporters, including government ministers, suggested that some form of automatic checking system would solve the problem. Boris Johnson, for example, hailed as brilliant a 100-page report by an organisation called the Alternative Arrangements Commission (AAC) which put forward the idea of “mobile units” away from the Irish border. Unfortunately, there was no clear indication when or if such units would ever be available and the AAC has never been heard from since.
The EU continued to insist that it must protect the integrity of the single market and therefore needed to check on food products, in particular, that were coming into Ireland via Northern Ireland. While neither side wanted any form of infrastructure that would threaten the Good Friday Agreement, practical solutions were conspicuous by their absence and so the stand-off continued.
Exit May, enter Johnson
It eventually wrecked Theresa May’s premiership as she could not find a solution that her party would support. She was faced with trying to comply with three main requirements: no hard border; no border between Northern Ireland and Great Britain in the Irish Sea; and for the UK to leave the EU single market. The problem, as most analysts pointed out at the time, was that two out of those three are possible, but you cannot make all three work. At least Mrs May couldn’t; her successor Boris Johnson solved the conundrum in a matter of weeks and, signing the Northern Ireland Protocol, paved the way for Brexit to be “done” by the end of 2019.
With one bound, we were free
The three irreconcilable demands seemed to have been met although it was immediately apparent that while Great Britain would leave the single market, Northern Ireland would not. This would eventually lead to different legislation being required for the two parts of the United Kingdom and seemed to go against the often-repeated argument that Brexit was all about reclaiming sovereignty. There were also questions asked about exactly where the required checks would take place; if not at a hard land border then surely in the Irish Sea? Nonsense, Mr Johnson told Northern Ireland politicians at one of their party conferences, he simply would not allow that to happen. Would there be paperwork needed to move goods from Great Britain to Northern Ireland, businesspeople asked? Put it straight in the bin if anyone dares to try, the Prime Minister said.
What could possibly go wrong?
Within a few weeks of the UK formally leaving the EU, and while grace periods were still in place to allow traders to get used to the new arrangements, complaints were being made about delays, paperwork and increased bureaucracy. Supermarkets in Northern Ireland were pointing to empty shelves and some major suppliers, including Marks & Spencer, were saying that they were considering cutting down on the goods they sold there. Chairman Archie Norman said recently: “This Christmas, I can tell you already, we’re having to make decisions to delist product for Northern Ireland because it’s simply not worth the risk of trying to get it through”.
Not to worry, Business Secretary Kwasi Kwarteng said, the Protocol was never meant to be “something that was going to last forever”. Unfortunately, the EU responded, it is part of international law and not something to be thrown aside because it has complications that you failed to see coming. Some commentators have suggested that Boris Johnson and his chief negotiator, Lord Frost, knew at the time that the Protocol made it impossible to deliver on the promises they had made but were happy to sign it in order to complete withdrawal from the EU. Mrs May's former chief of staff, Lord Barwell, tweeted that Mr Johnson's government knew the protocol “was a bad deal” but intended to “wriggle out of it later”.
That is the point we reached last month as disagreement between the UK and EU escalated into the “sausage war” — specifically an argument about whether chilled meats from the UK should be subject to the checks that the EU applies to all chilled meat that it imports from “third countries” (of which the UK is now one). The possibility that the Protocol would fail was temporarily pushed to one side with an 11th hour agreement to extend the grace period for the movement of food products across the Irish Sea to 30 September 2021. That would, the European Commission said, give the two sides chance to come to agreement.
Back to the standoff
Agreement, Lord Frost promptly said, means the EU seeing sense and applying the Protocol as it was meant to be applied. He blamed Mrs May and her negotiators for essentially leaving him with an impossible mess to clear up. “Unfortunately”, he told the Northern Ireland Assembly this month, “we were not able to go back to scratch and do things in a different way and I think the previous team are to a very large degree responsible for some of the infelicities in this Protocol and the Withdrawal Agreement that we might be better without but unfortunately we are where we are”.
He then introduced a government command paper, Northern Ireland Protocol: the Way Forward. While the Government will always prefer a consensual approach to resolving this situation, Lord Frost said, all options remain on the table. By this, it was understood that he included unilaterally amending the Protocol under the emergency clauses it contains. The European Commission briefly threatened to do this during the disagreement with the UK and drug companies over supplies of Covid-19 vaccine but backed off within a matter of hours when the possibility was attacked from all sides.
The irresistible force…
It seems unlikely that the UK will take this nuclear option as it will inevitably lead to legal action by the EU, put a major stumbling block in the way of any future agreements with the Union and cast doubt internationally on the UK’s trustworthiness when it comes to international treaties. However, Lord Frost’s “even-handed, mutually consensual attempt to make the Northern Ireland situation work for both sides” seems to involve scrapping the Protocol and starting again. He, and presumably Mr Johnson, want to remake the two-year-old agreement in a way that essentially puts no restrictions on trade between Great Britain and Northern Ireland. But that essentially gives the UK direct access to the single market (in Ireland) without having to concede anything by way of ensuring that its product standards continue to match those in the EU (the Commission’s preferred solution).
…meets the immovable object
Thank you but no, European Commission President Ursula von der Leyen replied. “The EU will continue to be creative and flexible within the Protocol framework”, she said. “But we will not renegotiate.” The problems with implementing the Protocol were both foreseeable and foreseen, Commission officials have argued, and the UK has had more than four years since it voted to leave the EU to come to terms with the implications of that decision for trade between the two sides.
In a rebuke to Mr Kwarteng’s laissez-faire attitude to treaties, Commission Vice President Maroš Šefčovič, who is negotiating directly with Lord Frost, said: “Respecting international legal obligations is of paramount importance”.
Squaring the circle
The current extended grace period under which trade between Great Britain and Northern Ireland is operating is set to end on 30 September. With both Parliament and the EU institutions in recess until the first week of that month, there is little time for detailed discussions and, as we have seen, the two sides are presently miles (or kilometres) apart. The vital necessity of finding a solution has however been hammered home by six of the UK’s leading retailers representing over 75% of the Northern Ireland grocery market.
Representatives from Tesco, Asda, Sainsbury's, Co-op, Iceland and Marks and Spencer have written to Lord Frost and Mr Šefčovič warning them that without swift, decisive, and cooperative movement on this issue, there will inevitably be disruption to supply and an increase in costs. Chief executive of the British Retail Consortium (BRC), Helen Dickinson, said: “The end to the Northern Ireland grace period looms in the mind of every British retailer with supply chains in Northern Ireland”. Something has to give.