The UK presented its proposed “way forward” on the Ireland/Northern Ireland Protocol (NIP) to the Westminster parliament this week. Northern Ireland Secretary of State Brandon Lewis wants nothing less than a renegotiation, with an accompanying standstill with extended grace periods and with no further legal action from the EU.
The NIP is, of course, part of the EU-UK Withdrawal Agreement, the ‘oven-ready’ deal the British prime minister negotiated, used as his main battle cry in 2019’s general election and then rushed through parliament with little dissent.
The UK did not discuss its command paper with the EU beforehand – but the UK has – again – acted unilaterally and without consultation with the EU.
The UK government now claims that it was cornered into negotiating a sub-optimal deal on Northern Ireland by: “Parliament’s insistence in the Benn-Burt Act that the UK could not leave the EU without an agreement”, an Act introduced to avoid a so-called ‘no-deal scenario’. This they claim radically undermined the government’s negotiating hand.
The UK also claims that the well-documented impacts of new customs arrangements were unknown, despite explanatory documents provided by the civil service and the contributions of many trade bodies from Northern Ireland and further afield at the time. Even if a negotiator was isolated from the world outside his department, he would have been unable to maintain blissful – and now useful – ignorance.
The UK outlines the work it has done and the half a billion pounds of investments it has made to try to ensure the UK was ready for the changes that would come into place on 1 January 2021. It also points to what it considers to be problems, including the diversion of trade that has taken place, including the 50% increase in the value of Ireland’s exports of goods to Northern Ireland compared to 2018. According to the UK, this gives it grounds to make use of Article 16 of the protocol, which would allow it to unilaterally introduce safeguard measures. These measures would have to be proportionate and would be reviewed by the Withdrawal Agreement’s Joint Committee every three months.
The reaction from European Commission Vice President Maroš Šefčovič was swift: “The Protocol on Ireland/Northern Ireland is the joint solution that the EU found with Prime Minister Boris Johnson and Lord David Frost […] the Protocol must be implemented. Respecting international legal obligations is of paramount importance.
“The EU has sought flexible, practical solutions to overcome the difficulties citizens in Northern Ireland are experiencing regarding the implementation of the Protocol. For example, on 30 June, the Commission tabled a package of measures to address certain pressing issues, including changing our own rules to ensure the long-term supply of medicines from Great Britain to Northern Ireland. These solutions were brought about with the core purpose of benefiting the people in Northern Ireland.
“We are ready to continue to seek creative solutions, within the framework of the Protocol, in the interest of all communities in Northern Ireland. However, we will not agree to a renegotiation of the Protocol.”
The leader of the European Parliament’s UK coordination group David McAllister tweeted that the UK proposal would be discussed tomorrow (22 July), but tweeted: “The protocol takes into account the UK government’s decision to leave the Single Market and Customs Union. It upholds the Good Friday Agreement and ensures peace and stability in Northern Ireland. The protocol cannot be renegotiated or replaced.”
In a press release, the UK states: “The Protocol will not be scrapped, but significant changes are needed to achieve a sustainable ‘new balance’ which puts the UK-EU relationship on a stable footing. […]
“For this to happen, significant changes are needed to the arrangements covering trade in goods and the institutional framework. These include:
· Implementing a more rigorous, evidence-based and targeted approach to preventing goods at risk entering the single market. We are ready to enforce in the Irish Sea EU customs rules on goods going to Ireland via Northern Ireland, but goods going to and remaining in Northern Ireland must be able to circulate near-freely and full customs and SPS processes should only be applied to goods genuinely destined for the EU.
· Ensuring that businesses and consumers in Northern Ireland can continue to have normal access to goods from the rest of the UK on which they have long relied. The regulatory environment in Northern Ireland should tolerate different standards, allowing goods made to UK standards and regulated by UK authorities to circulate freely in Northern Ireland as long as they remain in Northern Ireland.
· Normalizing the governance basis of the Protocol so that the relationship between the UK and the EU is not ultimately policed by the EU institutions including the Court of Justice. We should return to a normal Treaty framework in which governance and disputes are managed collectively and ultimately through international arbitration.”
