Last Wednesday, the British government issued a Command Paper on the Protocol on Ireland/Northern Ireland contained in the 2019 EU-UK Withdrawal Agreement. The paper, 22 single-spaced pages in length and entitled “Northern Ireland Protocol: the way forward,” calls 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.
The Protocol, which, including annexes, is 63 pages in length, 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 land border between the Republic and Northern Ireland, and protect the 1998 Good Friday/Belfast Agreement in all its dimensions. The arrangements, agreed by Prime Minister Boris Johnson in the autumn of 2019 after an earlier version of the Withdrawal Agreement negotiated by Theresa May’s government in 2018 had been rejected three times by the House of Commons, included most notably—and controversially—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. In effect, the Protocol created a border in the Irish Sea for goods moving from Great Britain to Northern Ireland in order to avoid a hard border between Northern Ireland and the Republic.
The 2019 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, the EU and UK concluded their Trade and Cooperation Agreement (TCA) that 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 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 or use 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. 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 would expire as of April 1, 2021. Lord David 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. Two days later, Brandon Lewis, the Secretary of State for Northern Ireland, issued a ministerial statement that the three-month grace period for agri-food goods scheduled to end on April 1 would be extended unilaterally for six months. A week later, the EU’s General Affairs Council agreed to launch an infringement procedure against the UK. Subsequently, another dispute arose, and eventually was resolved, over an expiring grace period covering the shipment of chilled meats to Northern Ireland.
The Command Paper notes that, while the Joint Committee did agree on time-limited grace periods for some goods moving from Great Britain to Northern Ireland, the default assumption—that all goods moving from Great Britain to Northern Ireland are subject to the full checks and controls that apply to goods moving from third countries into the EU—remains in effect, even for goods from Great Britain that are destined for consumption in Northern Ireland. It notes that supply chains have been disrupted; costs to businesses have increased; at least 200 companies in Great Britain have stopped supplying the Northern Ireland market, resulting in a substantial diversion of trade to Ireland; plants and trees long sourced from Great Britain can no longer be stocked in nurseries and garden centers; supermarkets have reduced their product lines because of delays and shortages; medicines produced in Great Britain are at risk of discontinuation; and pet owners and those relying on assistance dogs encounter difficulties in travel within the UK. All in all, the paper concludes, “the current situation is not sustainable. The way the Protocol is working needs to change.”
The paper argues the circumstances—in particular, the significant disruption in trade between Great Britain and Northern Ireland and the significant diversion 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 has occurred as a result—would justify the UK making use of the Article 16 “safeguard” clause of the Protocol. That clause allows either party to “unilaterally take appropriate measures” 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 paper argues, “Article 16 was designed precisely with such circumstances in mind, allowing for either party to act unilaterally with appropriate measures, in a proportionate way and in a manner necessary to remedy the situation.”
Nevertheless, the paper notes that, if Article 16 were to be 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, the UK has concluded that, at least for the time being, it’s not 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, it argues that, since the social and economic difficulties and trade diversion “derive from fundamental issues with the existing Protocol arrangements, not least the extensive customs and agri-food burdens they impose,…any solutions must fundamentally address those burdens for internal UK trade. That requires significant change to the Protocol, through a new balance of arrangements which can operate pragmatically and accord with the unique circumstances of Northern Ireland.”
That being the case, “We now need 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. It is in those aspects that the current provisions have led to the perceptions of unfairness and imbalance. It is here that we must find the new balance.”
Toward that end, the paper calls 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 SPS (sanitary and phytosanitary) processes are applied only to goods destined for the EU. In addition, ways must be found to ensure that businesses and consumers in Northern Ireland can continue to have access to goods from the rest of the UK on which they have long relied. And thirdly, 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 Court of Justice. A negotiation that covers this ground can, the paper says, “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 acknowledges that making these changes would require negotiation of an agreement that would amend the Protocol: “These changes will of course require a subsequent agreement, as envisaged under Article 13(8) of the Protocol, in order to amend, at least in part, certain provisions. We consider that such an amendment would fundamentally strengthen the Protocol’s ability to meet its core objectives.” Article 13 (8) of the Protocol 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.”
In concluding, the Command Paper argues, “Across the island of Ireland, within the EU and across all parts of the UK, there is a desire to support the peace process in Northern Ireland, bolster the institutions, and support them in delivering prosperity, stability and a genuinely shared society in the longer-term. We must take the opportunity to support this shared drive and endeavour, and find a new balance which can address the trade diversion, and the economic and societal difficulties we have seen so far this year. The best way to do this is through finding new and durable arrangements agreed by the UK and the EU together, in which there is a shared ongoing interest in their success.” The paper also argues, “To provide space for these discussions, the Government believes it is vital to provide certainty and stability for businesses in Northern Ireland in the short term. Accordingly, we believe we and the EU should agree a ‘standstill’ on existing arrangements, including the operation of grace periods in force, and a freeze on existing legal actions and processes, to ensure there is room to negotiate without further cliff edges, and to provide a genuine signal of good intent to find ways forward….The Government stands ready to take these discussions forward at pace. The issues faced are genuine and urgent. We invite the EU to join us in an intensive process that resolves these issues on a durable, sustainable basis, and enables us to look forward to the better future beyond.”
Last Wednesday, Šefčovič responded to the UK paper and Frost’s presentation of it in the House of Lords. He noted the Protocol was a joint solution found by the EU working with Johnson and Frost and was part of the Withdrawal Agreement that was ratified by the UK Parliament. He also noted the EU has sought flexible, practical solutions to overcome the difficulties citizens in Northern Ireland are experiencing and noted, in particular, that in late June the Commission had tabled a package of measures to address certain pressing issues including, importantly, the continued supply to Northern Ireland of medicines produced in Great Britain. He said the EU had taken note of Frost’s statement in the House of Lords and that it will “continue to engage with the UK, also on the suggestions made today. We are ready to continue to seek creative solutions, within the framework of the Protocol…However, we will not agree to a renegotiation of the Protocol. Joint action in the joint bodies established by the Withdrawal Agreement will be of paramount importance over the coming months. We must prioritise stability and predictability in Northern Ireland. I look forward to speaking to Lord Frost soon.”
The application of EU customs procedures on goods arriving in Northern Ireland from Great Britain has, not surprisingly and indeed quite predictably, caused considerable difficulties for British businesses producing for the Northern Ireland market and for those living in Northern Ireland. Sustained discussions between the EU and the UK are clearly needed to address those difficulties, and a ‘standstill’ in regard to the grace periods and a freeze on the infringement procedure would no doubt be helpful in that regard. Whether those discussions—if they happen—will result in a “new balance” remains to be seen. But one thing is clear: They won’t lead to amendment of the Protocol.
David R. Cameron is the former director of the MacMillan Center’s Program in European Union Studies.