Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.
Any final agreement on the future relationship is dependent on the successful implementation of the Withdrawal Agreement; not surprisingly, it is the implementation of the Northern Ireland Protocol where British and EU positions are furthest apart.
The UK and EU have always viewed the protocol through different lenses. In part this difference is because the EU doesn’t fully understand the Belfast Agreement and was incredibly slow to recognise that it undermined rather than supported many of its positions.
Having framed the protocol as a defender of the Belfast Agreement, the EU struggled to accept that the agreement upheld east-west relations as well as north-south ones in ways the protocol undermined. In the context of the political constraints and crisis of last autumn, the concession on consent did bring the protocol sufficiently in line with the Belfast Agreement for the UK to accept it, however unsatisfactory the protocol remained constitutionally, politically and as practical policy.
Now at the implementation stage, both parties are again looking at the protocol through their different lenses. Last month the Government published its approach to implementation; the Commission’s response showed no sign of welcoming a light-touch regime favoured by the UK, stating: “the UK will have to meet all the requirements of the Protocol, rigorously and effectively. That includes putting in place all the necessary checks and controls for goods entering Northern Ireland from Great Britain. That includes applying EU rules on customs and sanitary and phytosanitary protection”.
The strict requirements of the protocol secure the EU’s primary interests, but not those of the UK, so the EU has little incentive to problem solve with the UK to try and realise aims it signed up to but does not really share, or to agree trade offs between these other aims and its core interests. However, there is one factor that alters these dynamics – potentially significantly.
Before the end of 2024 the UK government will provide the opportunity for consent to the continued application of the main economic aspects of the protocol (articles 5-10). Consent will require a simple majority of votes in the assembly. It is assumed that a vote on the continuation of the relevant articles of the protocol will be for no change; this is based on expected party representation after the next assembly election, though this expectation may overstate likely future decline in unionist seats.
The assumption that there will be no vote to change the working of the protocol assumes the question is seen in largely or wholly political and communal terms: a vote against the protocol on principle. However, removing consent to a system because it is damaging economically would not be a matter of political principle and communal allegiance but of mutual and thus cross-communal interest.
A rejection of the relevant economic articles of the protocol would result in an improvement to the working of the protocol, one that would likely command a majority in the assembly; it would not threaten north-south co-operation (excluded from the issues that would be voted on) and could not require a hard border, for which there would be no majority anyway. Addressing the faults of a cumbersome and expensive protocol would benefit Northern Ireland: it would, however, be a loss for the Commission.
The point of the consent principle in the protocol is not only that one day the voice of the people of Northern Ireland will be heard; it is that because this is the case, their voice and interests will be taken into account from the very beginning – from the design stage itself: i.e. now. In the light of this, the EU’s incentive to make a deal that works for everyone and balances the full aims of the protocol is far greater. The EU is no longer the final judge on the acceptability of the protocol.
The question that faces the Commission therefore, is how it can ensure that the operation of the protocol is not overly detrimental to the economic interests of the people of Northern Ireland, thus risking its rejection by democratic vote in just over four years. That is likely to be the cost of a heavy-handed approach to implementing the protocol.
The EU needs to change its thinking from a maximalist approach focused on its limited interests to a more balanced approach that allows trade offs between rigorous application of the Union Customs Code and the economic interests of Northern Ireland. A maximalist approach is not needed to secure core EU interests and a more flexible and innovative approach is needed to manage the trade offs – and these do need managing.
There is plenty of scope to apply exemptions to the strict application of checks and customs duties. For instance, Article 5 of the protocol, on movement of goods, provides that goods that are not at risk of entering the single market will not pay customs duties; there are no practical grounds for strict application of the Union Customs Code to apply to such goods.
Retail shipments bound for the high streets and shopping centres of Northern Ireland would fall within this “not at risk” category, thus preventing hikes in the cost of weekly shopping that would affect people across Northern Ireland. A decision on this is required before the end of the transition period, December 31: it should be made now.
Goods subject to commercial processing cannot be designated “not at risk” of single market entry. Getting the necessary checks and controls undertaken as lightly and swiftly as possible for these goods is a problem that still needs to be solved and agreed but the incentive to do so has not really been there for the EU. Long-established supply chains could have special status and arrangements based on such trusted trading could allow the minimal paperwork.
Consent was not a sop to allow the UK to swallow the protocol whole: it introduced democracy into the working of the protocol and so made it accountable to the people, not just the EU. This change should affect the approach the Commission takes to getting the protocol implemented; like the UK, it now needs a protocol that works with the least hindrance to east-west trade. Failure to get this right risks rejection of the protocol in four years and its replacement with a lighter-touch regime. The EU should work to achieve that regime now.
One of the conditions the EU has set for an agreement on a UK-EU future relationship is respect for democracy. We will see how serious the Commission is about that in the weeks ahead. Michel Barnier warned that there were costs to Brexit for Northern Ireland; there are also costs of democracy for the Commission.