The Northern Ireland Protocol is not yet two years old but will be subject again in the coming weeks to intensive make or break negotiations – Professor Philip Rycroft explores the latest developments.

The Northern Ireland Protocol is not yet two years old but will be subject again in the coming weeks to intensive make or break negotiations. An unprecedented agreement designed to deal with the conundrum that Brexit created for trade on the island of Ireland, the Protocol remains under considerable stress. Will it survive the winter or will it crack under the pressure, plunging EU/UK relations into a new period of uncertainty and confusion?

EU Commissioner Maroš Šefčovič recently tabled what on the surface appear to be far-reaching proposals to resolve some of the problems associated with the implementation of the Protocol. Businesses in Northern Ireland, and suppliers on the mainland, have complained of overly onerous checks on goods coming from Great Britain. The UK government has already unilaterally extended grace periods for sensitive products such as chilled meats, to prevent even more checks coming into force and closing the Northern Ireland market to some British-made goods.

That paused the so-called sausage wars but did not resolve the underlying problems. The Commission proposals aim to do that, by removing up to 80% of checks and controls on retail goods and 50% of custom formalities. One striking illustration of what is proposed is the acceptance that a lorry bound for a supermarket in Northern Ireland laden with hundreds of different items will require only a single export health certificate, rather than one for each separate product line.

This all goes further than anticipated. Šefčovič has clearly worked hard with other Commission services and member states to come up with what looks like a reasonable offer. A lot of the detail has to be fleshed out, a sensible tactic to allow the precise shape of the proposals to be agreed in discussion with the UK authorities. But Šefčovič is probably close to the limits of his room for manoeuvre; will there be enough on the table to reach a deal with the UK government?

That is the big question. The UK’s lead negotiator, Cabinet Office Minister Lord Frost, seemed keen to get his retaliation in first when he delivered a speech in Lisbon the day before the Commission proposals were made public in which he once again appeared to raise the bar. He focused on the governance of the deal, specifically the role of the Court of Justice of the European Union, and demanded a substantial renegotiation of the whole of the Protocol.

Given Frost’s general disposition on Brexit and sovereignty, this is not surprising. But it is understandable that accusations of bad faith hang in the air. When the Protocol was signed back in 2019 and proclaimed as ‘oven ready’ by the Prime Minister, the clauses on governance and the role of the CJEU were crystal clear; there was no dubiety that for Northern Ireland to stay in the EU Single Market would require adherence to the rules governing the Single Market, over which the CJEU is the ultimate legal authority.

Is Frost playing negotiating hardball, in the belief that threatening to crash the deal will extract more concessions from the EU? Or is he preparing to walk away, using clause 16 of the Protocol to suspend elements of the deal and throw the whole problem back up in the air?

We don’t know the answer to that yet; perhaps Frost and the Prime Minister don’t either. There will certainly be political temptation to renege on the deal. Egged on by many on their own backbenchers, they might think that continuing to stoke the Brexit fires will play well with the Conservative party’s new electoral base. A foreign distraction can be useful at a time of domestic dislocation and minds will already be turning to the next Westminster general election.

No doubt too that the UK government could pray in aid Northern Irish politics, in particular the continued vehement rejection of the Protocol by the DUP. While the principle of consent is built into the Protocol, with the Northern Ireland Assembly getting the chance to approve or reject the continuation of the Protocol after four years, it does place Northern Ireland in a unique position, subject to rules over the management of its market over which its elected representatives have no direct control. That was the price for keeping Northern Ireland in the Single Market, along with the significant advantages that brings to its businesses.

The Protocol is an uneasy compromise. Like the Good Friday/Belfast Agreement before it, it contains ambiguities and is not wholly satisfactory to any party. But the Protocol, or something like it, is the only conceivable answer to the trade border problem on the island of Ireland, short of re-writing the UK’s new relationship with the EU. While the European Commission needs to continue to show flexibility, a heavy responsibility sits on the shoulders of Frost and Johnson. Will they engage with the proposals put forward by the Commission to make the Protocol a practical working proposition? Or will they stick with a purist position on sovereignty, risking a trade war with EU and further uncertainty and political disruption in Northern Ireland? Once again, we head into winter not knowing whether Brexit will deliver yet another crisis in our relations with the EU.

Philip Rycroft was Permanent Secretary of the Department for Exiting the EU between 2017 and 2019. He is Honorary Professor at the University of Edinburgh and Associated Fellow of the Centre on Constitutional Change.

Photo by K. Mitch Hodge on Unsplash.