The Northern Ireland Protocol: a touch of Frost raises the temperature

By Ciaran Gill

Senior Executive Ciaran Gill analyses what’s next for UK-EU relations after an important few days in which the EU presented new proposals around the Northern Ireland Protocol.

After one of the most hectic weeks in UK-EU relations in many months, the UK and the EU are today entering into talks (which have a three-week deadline) over new proposals put forward by the EU in relation to the operation of the Northern Ireland Protocol.

The week was kicked off in earnest when Lord Frost, the UK’s Minister responsible for UK-EU relations and the UK’s former Brexit negotiator, made a speech on Tuesday at the British Embassy in Lisbon, calling for the EU to address “fundamental issues” stemming from the Northern Ireland Protocol due to it having “completely lost consent in one community in Northern Ireland”.

The Government’s chief EU negotiator said that a failure on the EU’s part to revisit the Protocol, which de facto places Northern Ireland in the EU Single Market for goods, would be a “historic misjudgement”.

‘Cause I gotta have (good) faith

On the same day, the Prime Minister’s former Chief Adviser Dominic Cummings tweeted  that it was never the UK Government’s intention to apply all of the provisions of the Protocol and that it was London’s intention to “ditch bits we didn’t like” after the 2019 General Election.

Ireland’s Tánaiste Leo Varadkar said that these comments were “very alarming because that would indicate that this is a government, an administration, that acted in bad faith and that message needs to be heard around the world”.

On Wednesday, meanwhile, Vice-President of the European Commission for Interinstitutional Relations Maroš Šefčovič presented the long-awaited fresh proposals from the EU in response to the UK Government’s Command Paper on the Protocol from July 2021, which had set out recommended changes to the agreement.

What’s new?

The EU has proposed to reduce by 80% the number of food safety checks, i.e. sanitary and phytosanitary (SPS) controls, on goods travelling between Great Britain and Northern Ireland. This would be achieved by simplifying certification but would be subject to conditions such as the UK constructing permanent Border Control Posts in Northern Ireland.  

Brussels has also proposed to cut in half the customs documentation needed for goods to travel across the Irish Sea. This would be achieved by expanding the list of goods the EU thinks will stay in Northern Ireland and not move into the Single Market.

Taken together, these two proposals would therefore create an ‘express lane’ for the movement of goods between Great Britain and Northern Ireland which are not at risk of moving into the Single Market.

Other proposals set out by Šefčovič include EU commitments to both improve its engagement with Northern Irish stakeholders and to not to stand in the way of Great Britain acting as a hub for the supply of generic medicines into Northern Ireland.

Get Brexit done?

All eyes will now be on Lord Frost to see whether these proposals, which Šefčovič states were developed on the back of extensive discussion with “political leaders, businesses, civil society and other stakeholders in Northern Ireland”, will be acceptable to a UK Government ostensibly concerned with maximising sovereignty at all costs.

With a fresh round of talks now kicking off (and Commissioner Šefčovič possibly meeting Lord Frost on Friday), it should quickly become apparent if Brussels’ readjustments align with what Lord Frost wants for Northern Ireland. 

One potential obstacle is the continued role of the European Court of Justice (ECJ) as an enforcer, under the terms of the Protocol, of EU law in Northern Ireland. In his Lisbon speech, Lord Frost said that an updated Protocol would look “more like a normal Treaty in the way it is governed, with international arbitration instead of a system of EU law ultimately policed in the court of one of the parties”.

Given that the EU Ambassador to the UK João Vale de Almeida said on Wednesday night that the ECJ would have to play a role in upholding the rules of the Protocol, further disagreement may therefore be waiting around the corner. Lord Frost may also seek to oppose the EU’s suggested tweaks if Ulster unionists voice their unhappiness at the proposed new arrangements. The initial signs aren’t entirely promising, given that Ulster Unionist Party leader Doug Beattie welcomed the proposals but noted that there was “a long way to go”.

During this new round of talks, in which both parties will develop their positions and flesh out their proposals, EU officials may have in mind Dominic Cummings’ Trumpian assertion that “cheating foreigners is a core part of the job”. If Lord Frost says that unionist concerns are the primary reason why efforts on the EU’s part to amend the Protocol must be rejected, it will be up to EU officials to work out whether the UK is approaching these negotiations in good faith (or “good faith blah”).

Over the past few years, the complexities of both Irish history and the rules of the EU Single Market have intermingled to form a larger morass which doesn’t seem like it will be untangled anytime soon. Landing zones for both the UK and EU may be coming clearer into view, but significant obstructions remain.