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The Northern Ireland Protocol: Should the EU take a different approach?

Emily Fitzpatrick

Date: 18/05/2022
The UK has called on EU member states to broaden Commission Vice-President Šefčovič’s mandate, in order to reach a compromise on the contentious Northern Ireland Protocol. Given the current impasse, how should the EU respond to this request?

Yesterday afternoon, UK Foreign Secretary Liz Truss announced plans to bring forward legislation that would allow the UK government to unilaterally disapply elements of the Protocol on Ireland/Northern Ireland to the EU–UK Withdrawal Agreement. The legislation will restate many of the UK’s asks from its July 2021 Command Paper, including a dual regulatory regime, new customs procedures, and a new governance structure. Such demands would require that elements of the Protocol be rewritten, or a wholly new agreement reached.

This announcement follows the election in Northern Ireland that saw Sinn Féin, an Irish republican party, win the largest share of the vote and the Democratic Unionist Party (DUP) relegated to second place. The DUP views the Protocol as a threat to their place in the Union and has refused to re-enter the North’s power-sharing structures, meaning that there will be no functioning government in Northern Ireland until its grievances are resolved.

The proposed legislation will be brought forward in the coming weeks and could take up to a year to pass through the UK legislative process. It appears that the UK’s aim is to inject an element of ‘crisis’ into the debate and push EU member states to broaden the European Commission’s negotiating mandate while at the same time scoring points with Eurosceptics within the Conservative party.

The EU position remains that the Protocol is not open for re-negotiation. In October 2021, the Commission put forward solutions to practical implementation issues within the structures of the agreement. But discussions on these proposals have made little headway. Given the current impasse, should member states reconsider the Commission’s mandate?

The case for change

There is an argument for finding new arrangements for post-Brexit trading rules in Northern Ireland. The Protocol has become so politically toxic in the DUP’s eyes that it is difficult to envisage in what form any consensus reached between the EU and UK could be sold to the party. Indeed, even Northern Irish politicians that want the Protocol to work – 54 of the 90 politicians elected – acknowledge that changes are needed in its implementation.

Additionally, the EU finds itself at an impasse regarding the Protocol’s enforcement. As grace periods are prolonged, partial implementation becomes the status quo, making full implementation in the future extremely unpopular. And now, with no government in Northern Ireland, we could be entering a period of prolonged non-implementation. Ensuring the protection of the European Single Market would mean either moving the customs border to the land border on the island of Ireland, which is geographically impossible to police and politically unfeasible to implement, or between Ireland and the rest of the EU, which would undermine Ireland’s place in the Single Market. With no way to implement the Protocol fully and a partner unwilling to move, going back to the drawing board could allow the EU to break this deadlock.

The UK is not a reliable partner

The problem is, following six years of negotiating its withdrawal from the Union, the credibility of the current UK government in the eyes of both the EU institutions and member states is at an all-time low. The EU is quick to underline that it was Prime Minister Johnson himself who signed and negotiated the Protocol, in full knowledge of the consequences it would have for Northern Ireland’s economy and society.

The Commission has already moved substantially within its current mandate to grant flexibilities on the Protocol’s implementation. Yet, there remains a sense that any concessions granted by the EU, for example, on medicines, are not acknowledged by the UK but simply pocketed while further demands are made. Last week, Irish Foreign Minister Simon Coveney commented that the EU is negotiating with a partner it “simply cannot trust”. Whether the UK wants to reach a deal at all is doubtful. Even if member states were to grant the Commission a new mandate, there is no guarantee that the UK government would stick to what is agreed.

What should the EU do next?

If member states do not trust the UK government to act in good faith, and there are no politically feasible avenues for the EU to implement the Protocol, then what options are left?

The European Commission has stated that should the UK move forward with this bill, the EU will respond with all measures at its disposal. A political question for the EU is when and how harshly it should respond. Should the Commission react as soon as the legislation is published, claiming that the UK has demonstrated an intention to breach international law? Or wait to see in what form the bill passes through the legislative process? The Commission has adopted a strict approach internally to Hungary breaching the rule of law – the same standards should be applied to the UK. Conversely, acting too soon or too harshly could escalate the situation further, undermine the possibility of reaching a negotiated solution, and threaten stability in Northern Ireland.

Previously, the EU has threatened retaliation through the EU–UK Trade and Cooperation Agreement (TCA) to deter the UK from triggering the Protocol’s Article 16 safeguard measures. This time around, the UK is banking on the possibility that concerns relating to the war in Ukraine will inhibit the EU from acting in a way that could escalate to a trade war.

Yet suspension or termination of the TCA could be pursued in a scalable manner. While member states like France may demand a hard-line approach, the UK has fostered closer ties with Central and Eastern European states and the Baltics following Putin’s invasion of Ukraine. This has led some in the UK to believe that the unanimity needed to terminate the TCA in full no longer exists. However, EU officials have stated that only qualified majority support is needed to suspend or terminate certain chapters of the TCA. The Commission could also pursue more targeted, punitive tariffs designed to hurt Conservative politicians, as was done in past trade disputes with the US.

Options to cause challenges for the UK also exist outside the scope of the TCA. The UK’s participation in the Horizon Europe funding programme is already delayed due to political difficulties with the Protocol. The Commission could revoke its data adequacy decisions unilaterally or increase customs checks at EU ports, increasing pressure on UK firms. Finally, the Commission could reinstate legal infringement proceedings against the UK that were paused in 2021.

Given that any dispute resolution procedure taken through the TCA will take time, as will the progression of a bill through the UK’s two-House system, proportionality in the EU’s response is key. Until the legislation materialises, the EU should not react with retaliatory measures.

However, even threatening to breach international law is unacceptable, and the EU must show that it takes this threat seriously. Member states should adopt a Council Resolution setting out the consequences of a unilateral breach should the UK legislation pass, as well as a timeline of the actions the EU will take if there is persistent non-implementation of the Protocol. Measures should be set out in a scalable manner, from unpausing the above-mentioned legal infringement proceedings in the first instance to terminating the TCA as a final ‘nuclear option’. A Council Resolution would demonstrate that a unified position exists amongst the EU27 regarding the unacceptability of the UK’s unilateral action on the Protocol. It would also clarify the economic risks posed by the UK’s actions to its electorate and industry.

Discussions on the Protocol will continue for some time. For the EU, the question remains, can any meaningful solution be reached with the current UK administration? In the short term, proportionate and firm responses to UK threats will be needed. In the long term, the EU can only hope that new UK leadership will come to power; one more open to finding joint solutions to the Northern Irish question.

Emily Fitzpatrick is a Junior Policy Analyst in the Europe’s Political Economy programme at the European Policy Centre.

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