Brexit Institute News

Here we go again? The UK’s Unilateral Proposal for the Northern Ireland Protocol

Clare Rice (Newcastle University)

It is difficult to escape the sense that we are experiencing déjà-vu. At what point, though, does déjà-vu cross the line from being a one-off sense of the past repeating itself to become an acknowledgement of habitual behaviour? The announcement on 3rd March by the UK Government that it would take unilateral action to alter grace period arrangements currently in place for the movement of goods from Great Britain to Northern Ireland raises such a question, and it presents a quandary for the European Union (EU).

The proposal has attracted both vociferous anger and tentative approval. It is uncontested that there is a practical need for the grace period to be extended, but it is the way in which attempts to achieve this have been approached that has given rise to the present situation. For business leaders in Northern Ireland who have been calling for such an extension to be agreed ahead of the end of March 2021 when some of the current arrangements were set to expire, the UK’s proposal came as welcome news, if lacking in the longer-term certainty needed for effective planning. For the EU, the move is a solo-run on the part of the UK to alter arrangements for the implementation of the Protocol, and an action that both contravenes the agreement in place and circumvents the structures designed to deal with matters such as this. For Ireland in particular, the news was seen as an unwelcome political manoeuvre, not least in light of background efforts it had been undertaking in Europe to try and secure this very outcome.

At the time of writing, the EU has indicated an intention to initiate infringement proceedings against the UK in response to this move, having made it clear that trust has been weakened with this step. For example, Ireland’s Minister for Foreign Affairs stated that the EU was ‘negotiating with a partner it can’t trust’ in light of the proposal. Technical details cannot replace trust, and where trust cannot be achieved, formally outlined means such as legal routes remain the only valid option for ensuring agreements are upheld.

It is also not the first time that the EU has pursued a legal course of action against the UK in relation to the Protocol. The introduction of the Internal Market Bill in September 2020 which proposed actions that would break international law in a ‘specific and limited way’ was also a cause for EU concern. The extent to which this might have been a political strategy in order to try and extract a more favourable outcome from the negotiations that led to the Trade and Cooperation Agreement (TCA) is debatable, but its lingering impact has been evident. It further reinforced the UK Government’s commitment to pursuing an approach to implementing the Protocol that prioritised UK unity (as outlined in the June 2020 Command Paper), and the rationale for proposing unilateral action with regard to the Protocol’s operation also holds roots in this. From the EU perspective, what has unfolded is deeply concerning.

The interplay between Prime Minister Johnson’s domestic political agenda and commitments under the Northern Ireland Protocol has been fraught. Tensions within Northern Ireland in reaction to the Protocol have been evident, with staff being removed from their positions at ports in Belfast and Larne in response to security concerns, and more recently, the halting of border control post construction by the interim Minister for the Department of Agriculture, Environment and Rural Affairs, Gordon Lyons. This is itself now facing legal action.

Secretary of State for Northern Ireland, Brandon Lewis, has asserted that the latter occurrence is an internal matter for Northern Ireland. This indicates an intentional detachment of the UK Government from what is happening on the ground in Northern Ireland in relation to the Protocol’s implementation. The Prime Minister’s uncertainty about the composition of the Loyalist Communities Council (LCC), who wrote a letter outlining a revocation of support for the Good Friday/Belfast Agreement 1998, further indicates this. The Protocol is not simply a document; its implementation entails very real consequences for everyday life and for people in Northern Ireland.

For unionists, the political dynamics around the Protocol are growing ever-more complex. The Protocol represents the antithesis of the community’s cause, and all moves to minimise or completely remove the current trade arrangements for goods moving from GB to Northern Ireland are welcomed by this group. Yet despite this, the UK Government’s position has been one of saying that the Protocol will not be removed and that work will continue with the EU to resolve the challenges it has given rise to. Add into the mix the current proposal of unilateral action and it becomes difficult to see whether this is simply a strategy to try and force the hand of the EU, a genuine intention to address unionist concerns, a combination of the two, or simply a political move in an attempt to pin blame on the EU for shortcomings in the UK Government’s efforts with regard to the Protocol’s implementation. Furthermore, all of this is happening against the backdrop of the Protocol being a deal that the UK Government negotiated and agreed.

From the EU’s perspective, the UK Government’s handling of the Brexit process and the Protocol’s implementation has left little room for confidence. Not for the first time, the EU is looking towards legal action, and whether or not the UK’s intentions are serious, the impact equates to an undermining of the agreement both sides reached. Where it may have been possible to explain away some of the upset caused in relation to the Internal Market Bill, for the EU to find itself in a similar position again makes this even harder. Johnson’s threat to use Article 16 – which came in the wake of an EU U-turn on using it in January – has done little to help this, despite there having been many more affirmations shared of the UK’s commitment to working with the EU to find solutions.

It is clear that rather than déjà-vu, this is a consistent pattern of behaviour from the UK Government. For Northern Ireland and in relation to the Protocol specifically, it is how the EU responds to this that will determine the extent and longevity of the consequences.

Clare Rice is Research assistant at Newcastle University Law School.

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