Is the EU Implementing the Irish Protocol Unfairly?
The trouble all started when Dublin, aided and abetted by the EU, conned the UK government into accepting that Brexit might contravene the Good Friday Agreement. This was nonsense for two reasons.
The Agreement was reached in 1998, long before Brexit was even on the horizon. It has no reference to customs posts or a “hard border” between Northern Ireland and the Republic – it has nothing to contravene. It does require north and south to cooperate but it takes two to cooperate and there was no cooperation from Dublin about the mitigations proposed by London. Secondly, the UK was relaxed about goods flowing north. It was the EU that required customs posts and all the absurd documentation devised by the bureaucrats in Brussels. The customs posts would have been south of the border and any security issues would have been matters for the Republic.
The UK proposal of a customs border in the Irish Sea for goods that might travel onward to the Republic seemed to Westminster like a small price to pay. It didn't go to Belfast but by then the Democratic Unionist Party (DUP) had lost its critical role in Mrs May’s majority.
Rightly or wrongly, the 63 page Protocol is now a done deal and must either be honoured or renegotiated. Significantly, the EU presents the Protocol as being a wholly Irish and EU matter and makes no reference to protecting UK interests: it claims “the Protocol on Ireland and Northern Ireland:
Avoids a hard border between Ireland and Northern Ireland, thereby enabling the smooth functioning of the all-island economy and safeguarding the Good Friday (Belfast) Agreement in all its dimensions;
ensures the integrity of the EU’s Single Market for goods, along with all the guarantees it offers in terms of consumer protection, public and animal health protection, and combating fraud and trafficking.”
The Protocol is administered by a “Joint Committee” (Annex VIII) co-chaired by an EU Commissioner and a UK government Minister (or their nominated officials as alternates). There are six similarly bipartisan “Specialised Committees”.
The basic idea of the Protocol, at least as presented by the UK government, is that Northern Ireland is simultaneously in the UK and EU customs unions. So long as the goods only travel within each, no formalities or paperwork would be required. It was only for goods travelling from Great Britain to the Republic, via the Province, or vice versa, that paperwork and customs checks, equivalent to those between the UK and continental EU, would be required. Article 5 states “Before the end of the transition period, the Joint Committee shall by decision establish the criteria for considering that a good brought into Northern Ireland from outside the Union is not at risk of subsequently being moved into the Union.” Note, as is true throughout the Protocol, the absence of any reciprocal protection for Great Britain. Article 5 seems the nub of the problem.
Unremarked in the media, there seems to have been a bit of fancy word play. The Prime Minister promised there would be no “customs border” in the Irish Sea and, indeed, if goods are certain to stay in the Province, no duties are payable. However, we do have a “regulatory border”:"Agreement being reached is confirmation that there will be a regulatory border in the Irish Sea.
This proposal from Boris Johnson last year was endorsed by Arlene Foster and her DUP colleagues on October 2 2019." Lord Reg Empey December 2020. The warning was in the preamble to the Protocol: “UNDERLINING the Union's and the United Kingdom's shared aim of avoiding controls at the ports and airports of Northern Ireland, to the extent possible in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof,” [my emphasis].
EU officials are using the Protocol’s application of innumerable EU Regulations to goods in Northern Ireland to prevent their import from Great Britain and/or require massive documentation, irrespective of whether they are travelling on to the Republic or not. Furthermore, “Union representatives” have the right to go anywhere they like in the UK and demand whatever they see fit, no matter how ridiculous: “Where the Union representative requests the authorities of the United Kingdom to carry out control measures in individual cases for duly stated reasons, the authorities of the United Kingdom shall carry out those control measures.” (Article 12(2)).
By the end of February, it was clear that the Protocol was not working. Routine goods for the Province were not getting through and supermarket shelves were emptying. The Protocol was far from bringing peace to the Province; it was bringing unrest. The EU representatives on the Joint Committee were refusing to accept the pragmatic solutions offered by the UK. We are told they were all working very hard but no agreement was reached. Secretary of State Brandon Lewis had no choice but to extend the grace period for six months during which paperwork would not be required for goods intended for the Province itself. Contrary to some questions in the House of Commons on 10th March, this deferral is perfectly legal and mirrors similar technical adjustments required by Dublin.
Of course, extending the grace period deferred, but did not solve, the problem, but it does have other advantages. It shows the international community that the UK is pursuing best endeavours in attempting to implement the protocol, but also allows a continued raising of the issues that fall under it. This in turn allows the UK members of the Joint Committee to suggest to the EU that their measures are too onerous and need changing. Examples are available from elsewhere, e.g. the EU relationship with New Zealand.
The Chair of the Northern Ireland Affairs Committee, Simon Hoare, urged “the Government to desist the narrative of unilateral action and debate, to get back around the Joint Committee table and to make sure that the protocol works.” Duncan Baker asked “Does the Secretary of State agree that fresh minds should be brought to bear on the conundrum? The Northern Ireland Affairs Committee, for example, could call on new help and advice from qualified business experts.” The Secretary of State recognised the need for business advice but not the need for fresh minds. After going round in circles for two months, there is little confidence that the same people will find new answers.
One problem is that the Protocol requires the proceedings of the Joint Committee to be kept confidential. The country, or even its MPs, cannot be told what has been discussed and what the obstructions are. We are told that the EU’s Vice-President Šefčovič is trying to be helpful but is being dragged back by his colleagues in Brussels. One wonders why. Senior EU officials are good, intelligent people and there must be reasons why they are behaving in a way that is clearly harmful to the people of Northern Ireland. Does the UK government understand what those reasons are? Surely a step towards resolving them. The current situation is mutually unsatisfactory to all parties.
The Protocol states “The Union and the United Kingdom shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt, through cooperation and consultations, to arrive at a mutually satisfactory resolution of any matter that might affect its operation.” (Article 167)
We need the fresh minds of business people with experience of implementing and renegotiating major international contracts, as well as more openness, to let that happen.