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Three crucial steps to make the Northern Ireland Protocol work

Anton Spisak / Mar 2021

Image: Shutterstock

 

When the UK struck a post-Brexit trade agreement with the EU in December 2020, many hoped that this would mark a new beginning for UK-EU relations but few really believed it. In recent months Britain and the EU have fallen out politically and diplomatically with a speed that has exceeded most expectations.

The biggest headache has been the Northern Ireland protocol. New impediments to trade in the Irish Sea have increased political tensions within Northern Ireland, and between London and Brussels, with the EU threatening legal action if the UK does not enforce the rules properly. This has fuelled questions about the durability of the delicate compromise that was struck for Northern Ireland and helped Boris Johnson secure an ‘oven-ready deal’ and his own political future in the 2019 general election.

It is true that the Northern Ireland Protocol, agreed as part of the withdrawal treaty, has its flaws. It shifts a border down to the Irish Sea rather than removes the need for it; it puts the onus on Northern Ireland to stay aligned to EU rules with limited input into these rules; and its durability hangs on the promise of continued support by the Northern Irish Assembly. But the Protocol was always a compromise, a balancing act between satisfying the need for border checks with a third country – which arose from the UK’s sovereign decision to leave the single market and customs union – while respecting the Good Friday Agreement and avoiding a hard border on the island of Ireland.

Nor is there any viable alternative to the Protocol without the UK integrating more fully back into the single market. There is now a temptation in parts of Westminster to revisit proposals for “mutual enforcement”. But this idea, like so many others, was tested during the negotiation and rejected by the EU. It is also reasonable to think that an arrangement predicated on exceptionally high levels of trust might struggle to convince the EU of its merits afraid Britain has shown its tendency to act unilaterally if it does not get what it wants.

It would be a mistake to look at the current tensions and place all the blame on the protocol, however. Aside from short-term disruption, there are more structural difficulties here. One is that the thin UK-EU trade agreement dictates onerous requirements on agri-food goods moving from GB to the EU and, by extension, from GB to Northern Ireland. Another is that the protocol was agreed on the presumption of mutual trust. Embedded in the design of the Protocol is the principle that the EU trusts the UK that the single-market rules be properly implemented and enforced. Break that trust and the default is less flexibility and more legalism from Brussels.

If mistrust continues to dominate UK-EU relations and the structural problems persist, it is almost inevitable that the Protocol will be tested to the point of destruction. The politics in Britain might favour further delaying its implementation or perhaps even suspending it. At the same time, the EU will find it hard to justify any flexibilities that could ease tensions. The result is further political disagreements; complex legal disputes, including before the European Court of Justice; and, even, retaliatory actions, with tariffs being slapped on sensitive UK exports to the European continent.

It is not in the interest of either side to end up in this situation. For the EU, a belligerent Britain with little interest in enforcing the protocol would raise the difficult question of whether some checks may be required on goods leaving the island of Ireland and destined for the continent. Britain, for its part, would suffer economically as a result of unavoidable retaliation, as well as politically from its low trustworthiness on an international stage.

The only viable alternative is for both sides to rethink the political approach to implementing the protocol and work through the structural issues in effort to find a more stable equilibrium. In a recent paper published for the Tony Blair Institute, I suggest three steps that could help reduce the East-West frictions, de-escalate tension and restore trust.

First, both sides should seek to agree a veterinary/agri-food equivalence agreement that would cover movement of animal products from GB to NI. Although no agreement would remove the need for all checks – some existed before January – but even a modest agreement would reduce the frequency of physical inspections, simplify certification requirements and help rebuild trust.

Second, the UK and the EU should form a consultative group on East-West trade under the auspices of the Joint Committee, supporting Article 6 of the protocol which asks both sides to use their best endeavors to “facilitate trade between Northern Ireland and other parts of the UK”. The more Britain diverges from EU rules, the more important it will be to have full transparency of emerging behind-the-border barriers, so that Britain can use its newfound penchant for unilateralism to adapt to minimise them.

Finally, and most importantly, both sides need a distinct change in the political approach to implementing the protocol. The UK has to replace denialism about the existence of the Irish Sea border with clear-headed realism about what needs to be done now. It also needs to honour its commitments and stop poking Brussels in the eye. The EU side, for its part, has to recognise that the checks in Belfast or Larne are not the same as in the Calais-Dover strait and that some easements from its rules re necessary to make the Protocol work.

The ultimate test of the protocol is whether it will pass the consent vote in the Northern Irish Assembly, at the end of 2024. Until then, both the UK government and EU have a shared responsibility to try to make it work.

Anton Spisak

Anton Spisak

March 2021

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