After half a year of economic and political disruption, it is beyond doubt that the Northern Ireland Protocol needs reforming.
The Protocol keeps Northern Ireland inside the single market for goods, creating a de-facto customs border down the Irish Sea. Surgically partitioning the UK, the Protocol is both politically and economically problematic.
Politically, customs checks place the North on a different footing to the rest of the UK. Unionist communities are seething with rage, betrayed by a Prime Minister who promised last year no Irish Sea border “over my dead body”.
The DUP, seen to be insufficiently challenging the Protocol and face an uncontrollable haemorrhaging of votes. Consequently, the nationalist Sinn Fein may win a simple majority in next May’s Assembly elections, strengthening the argument for a border poll.
As GB-NI checks continue to frustrate trade, businesses in the North are increasingly relying on imports from the Republic – up 77 per cent since the start of this year. EU rules designed to prevent the spread of plant and livestock disease from third countries continue to hobble trade in breeding livestock and soil-products. Supermarkets are facing an arduous mountain of paperwork to keep shelves stocked in the North. M&S, for example, are completing 40,000 pages of customs documents a week to ship their products, expecting a three-fold increase in documentation once existing grace periods for certain goods expire later this year.
In March, a Stormont official noted that checks under the Protocol constitute 20 per cent of those across the whole EU, despite NI’s relatively small size. The EU’s zero risk-approach to GB goods is clearly impractical and the current volume of checks is disproportionate considering the UK resembles a “third country” in name only.
Downing Street published a Command Paper this summer outlining reforms to the protocol. Proposals include a dual regulatory regime for NI, allowing goods to circulate that meet either UK or EU standards, and the removal of sanitary and phytosanitary (SPS) checks.
This could be facilitated by a light touch scheme that traders could sign up to, increased labelling requirements and tough penalties. It also proposes for future checks to be carried out on a “risk-based and intelligence-led basis”. Problematically, some of the Paper’s more overzealous demands ensure these feasible proposals are unlikely to see the light of day.
The Paper calls for an end to the European Court of Justice’s role in handling governance and disputes. Considering that EU rules apply in NI under the Protocol, it is unreasonable to expect Brussels to allow the ECJ to no longer play a role. The Paper also calls for a rewrite of state aid rules but fails to offer a compelling case, especially when Brussels wishes to maintain a level playing field. Such striking demands do not help the UK cause.
Trust between both sides is in short supply. Last year the government threatened to break the Withdrawal Agreement in a “specific and limited way”. Since the end of the transition period senior Conservatives have called on the government to suspend the Protocol using Article 16. Already the UK has unilaterally extended grace periods. The European Commission’s rapid U-turn, temporarily invoking Article 16 amid a vaccine supply crisis, merely adds to the animosity.
Fixing the Protocol will require compromise on both sides. First, Downing Street needs to accept that there is a binary choice between regulatory alignment and some degree of checks in the Irish Sea.
Accepting alignment with the EU on SPS rules would reduce the burden of paperwork and physical checks, while also signalling that the UK is willing to be pragmatic. Equally, Brussels should engage with the UK’s proposals for risk and intelligence-based checks, accepting that the current level of disruption is disproportionate considering both the North’s size and the UK’s current regulatory situation.
Taking back control means taking responsibility. Ultimately, a hard break with Europe necessitated checks on or off the Island of Ireland. Continuing to insist the EU is taking a “purist”, “hardline interpretation” of the Protocol while dangling Article 16 overhead like the Sword of Damocles will do little to bring Brussels on side. With grace periods set to expire in the coming months, it is in the interest of both parties to compromise before the situation deteriorates any further.
