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In search of a landing zone for the Protocol on Ireland / Northern Ireland – Fortnight Magazine

To fix something, you must first agree on what is broken. While obvious, this is not always straightforward. 

In the case of the ongoing dispute between the UK and the EU over the implementation of the Protocal on Ireland / Northern Ireland, the two parties define the problem differently, therefore propose divergent solutions to it and disagree about how to get there. 

This is why that much-referenced, still-elusive metaphorical landing zone has proved so difficult to find. While recent events (read UK unilateral legislation and EU infringement proceedings) have made it harder to envisage the UK and the EU reaching any kind of consensus position in the immediate future, it is not inconceivable to imagine what a compromise agreement might look like. Before doing so, however, we first need to understand where all the parties are coming from. 

The Problem 

For the EU the problem is not the Protocol but the “practical difficulties” that have arisen in its implementation in Northern Ireland. In October 2021, the European Commission published four ‘non-papers’ setting out potential solutions for, or at least approaches to, fixing ‘practical difficulties’ facing stakeholders in Northern Ireland. 

These EU non-papers were intended to be a starting point for “intensive discussions” with the UK government aimed at reaching “a jointly agreed permanent solution” to the issues they covered, namely: customs formalities, Sanitary and Phytosanitary (SPS) checks, engagement with Northern Ireland stakeholders and the supply of medicines. By implication, the EU position last year signalled a willingness to show at least some flexibility, with the suggestion they would go further than the initial proposals in the course of UK-EU talks. 

In response to the UK’s introduction of legislation to disapply aspects of the Protocol, the EU published more on the substance of their non-paper proposals in respect to easements for customs and SPS issues. Both of these new EU position papers cite ‘extensive discussions’ with the UK government and “stakeholders in Northern Ireland” since October 2021, to help develop the details of the possible solutions set out – more on that in a moment. 

For the UK the problem is the Protocol. Or, at least, most of it. Excepting its provisions on Individual Rights (Article 2), the Common Travel Area (Article 3) and North-South Cooperation (Article 11), the UK government position is that the current Protocol is “not sustainable” and its implementation has created a “situation of necessity” in Northern Ireland warranting its decision to propose a unilateral breach of its prior international law commitments via new (controversial) domestic law.

The UK view of the issues created by the Protocol is more expansive than the “practical difficulties” outlined by the EU. Alongside the four issues identified in the EU non-papers, the UK government cite the Protocol’s provisions regarding VAT and excise, state aid and the continued jurisdiction of the CJEU among the reasons why, from a UK government perspective, the operation of the Protocol needs to change “in a fundamental way” and to do so “urgently” – thus the unilateral action. 

So, the UK and EU conceive of the problem differently – this makes reaching consensus more difficult but not, necessarily impossible. 

The Solutions 

On customs and SPS checks, the UK and EU positions are not irreconcilable. The UK have proposed a so-called ‘green lane and red lane approach’ whereby goods that stay in Northern Ireland enter through a ‘green lane’ and are not therefore subject to the full panoply of EU required checks and controls applied to those entering through a ‘red lane’ and due to travel on into Ireland. This is not totally dissimilar to the EU proposal to expand the definition of goods ‘not at risk’ of entry into the EU Single Market for which the burden of checks and controls necessary would reduce, in part facilitated by entry through an ‘express lane’. Both the UK and EU proposals in these areas underline the need for robust, real-time data sharing and harsh penalties for non-compliance. 

Where the picture is not quite so conciliatory is in the procedure for determining which goods go where i.e. (green/express) vs. (red/non-express) and just how minimal is minimal when it comes to reducing the burden of checks. These are, however, the sort of details that can and ought to be being worked out at ‘intensive technical talks’ between the two sides, if only the relationship was not quite so badly damaged. 

The issue of medicines supply has already, largely, been addressed through amendments to relevant EU legislation related to medicines for use on humans. Measures to ensure the supply of veterinary medicines remain outstanding but it is not unimaginable that similar changes to relevant EU legislation could be made. Moreover, there have been indications on the part of the EU that legislative derogations and/or amendments in other areas could be used as a means of easing the burden of checks, controls, and paperwork on Northern Ireland traders. 

Some kind of UK-EU compromise agreement to strengthen engagement with Northern Ireland stakeholders is also very possible if the political will is there. The formalisation of existing channels for engagement with Northern Ireland business and civic society, alongside measures to improve the transparency of the existing institutional architecture set up to oversee the implementation of the Protocol could, potentially, emerge. 

Although not in the EU diagnosis of ‘the problem’, it is even possible to see the space for some sort of compromise on the issue of state aid and governance raised by the UK government. Reliance on the subsidy control commitments in the Trade and Cooperation Agreement, as preferred by the UK, alongside enhanced processes of referral and consultation over any state aid administered in Northern Ireland, to reassure the EU, might be enough to satisfy both parties. While, on governance, the use of an arbitration panel by default, as preferred by the UK, but with a process for referral to the CJEU for any matter concerning interpretation of EU law, as preferred by the EU, is also conceivable. 

A lack of detail on the substance of the UK’s proposal for a “dual regulatory regime” makes it harder to say whether or not it could be a starter for discussion. It is, however, important to underline the “significant concerns” expressed by Northern Ireland businesses on the operability of such a system. 

There are a range of other outstanding issues

On VAT and excise, the UK proposal would see Northern Ireland removed from EU rules, this is not acceptable to the EU, however, they have indicated willingness to look at specific issues. Notably, the EU regularly adopts derogations and amendments to address specific VAT-related issues raised by Member States; a similar approach could be taken in respect of Northern Ireland. 

On checks on parcels travelling GB-NI (not currently being implemented) and on the requirements for the movement of pets the two sides positions are still pretty far apart, compromises would be required on both sides to reach agreement. 

Overall, then, it is possible to the topography of a landing zone beginning to emerge – one that would require movement from both sides, but which could conceivably be found if the process focuses on addressing the on-the-ground issues and asks coming from Northern Ireland voices. Unfortunately, right now, that is not what is happening. 

The Process 

Both sides want agreement. On some of the key practical issues facing GB-NI trade, it is possible to see how a landing zone might emerge. Perhaps a ‘green express lane’ system based on an expanded definition of ‘at risk’ and a more robust Trusted Trader Scheme facilitated by real-time data sharing and underpinned by strong penalties for wilful non-compliance. Such a solution would address at least some of the problems identified by the UK, the EU and raised by stakeholders in Northern Ireland. 

However, even if one accepts that there is a deal to be done, recent events have made it less likely. 

Following the UK government’s decision to introduce (controversial) new legislation that would see large parts of the Protocol disapplied in domestic law, the already strained relations between the two sides have deteriorated, and fast. 

At time of writing, the new UK legislation – the Northern Ireland Protocol Bill (NIP Bill) – is making its (anticipated slow) passage through parliament; it is unlikely to emerge unchanged. Expect strong opposition in the Lords and the Commons about the Bill’s unconventional (and highly questionable) approach to upholding of the UK’s international law obligations. The parliamentary process of the NIP Bill could last up to 18 months. 

Meanwhile, in response to the UK government’s unilateral action, the EU have launched and relaunched infringement proceedings against their would-be partners in the implementation of the Protocol. The now three EU legal cases against the UK concern the unilateral extension of a ‘grace period’ for certification requirements for agri-food moving GB-NI in March 2021, failure to carry out SPS controls necessary on goods entering Northern Ireland, and failure to provide the EU with adequate trade statistics data. The resolution of EU infringement proceedings like these can take years. 

What this means is that this latest chapter in the ongoing saga of Brexit, Northern Ireland and the Protocol is essentially a UK-EU waiting game. The processes begun last week – parliamentary on the part of the UK and judicial on the part of the EU – will take time, but this is time that Northern Ireland cannot, and ought not have to afford. Lingering on without a fully functioning government, the already serious public policy challenges facing Northern Ireland (read healthcare reform and the cost-of-living crisis) are getting worse. 

The UK and EU are aligned on the importance of finding a “negotiated settlement” and “joint solutions”. While not underestimating the diplomatic difficulty of overcoming the scarred and souring relations between the two sides, the people of Northern Ireland need the EU and the UK government to live up to these words, and to do it soon.