Stephen Booth is an international public policy analyst political commentator.
This month marked the third anniversary of the UK leaving the EU. Throughout this period the biggest point of contention between London and Brussels has been the failure to reach a new and sustainable settlement on the Northern Ireland Protocol. However, a recent flurry of media reports suggests that a deal to revise the implementation of the Protocol could be presented in the coming days or weeks.
The mood music between the UK and the EU has undoubtedly improved under Rishi Sunak’s premiership, which has made a deal possible. The UK side made mistakes in negotiations on the Protocol, prior to and after the formal Brexit date.
However, as I have argued previously, the EU shares a lot of the blame for the current mess, failing to understand that the politics of Northern Ireland required greater flexibility than a rigid interpretation of the Acquis Communautaire. Any solution has always needed to rely on a certain degree of trust and acceptance that some leakage is inevitable – and the previous three years suggests that the EU’s fears of goods streaming into the Single Market via Northern Ireland were grossly exaggerated.
While a UK-EU détente is welcome, the evidence suggests that without the more combative approach of Sunak’s predecessors, it is unlikely that the EU would have moved at all. In June 2021, the EU continued to insist that the UK implement the Protocol in full and that it could not be renegotiated. By October 2021, the EU was prepared to recognise that the Protocol was causing practical issues and put forward its own package of proposals, promising “approximately an 80 per cent reduction in checks” on most retail goods moving from Great Britain to Northern Ireland. However, on closer inspection, this apparent concession did not live up to Brussels’ billing and would still have resulted in cumbersome processes which would be unworkable for many traders.
The DUP’s decision to pull out of Stormont and the resulting collapse of the Belfast/Good Friday Agreement institutions seems to have had some impact on the EU’s thinking. Meanwhile, with the 25th anniversary of the Good Friday Agreement approaching, both sides are under moral pressure, including from Joe Biden, to reach a compromise.
The political stakes are high. Not only for the Prime Minister, who must convince many in his own party that any deal will solve the practical issues affecting East-West trade. But, also for the situation in Northern Ireland, where the DUP will need to decide if a deal provides enough political cover for them re-enter the institutions.
So what might the mooted deal look like? The UK has always accepted the need for checks on goods entering the EU via Northern Ireland, but has argued that formal EU border procedures should not be needed for the vast majority of goods, which remain in Northern Ireland. Indeed, the Protocol introduced the concept that goods “not at risk” of entering the EU could be eligible for different tariff treatment. However, up to now, the EU has taken a very maximalist view of the potential risk of goods entering the Single Market, insisting on customs and regulatory checks that are disproportionate and politically unsustainable.
This week RTÉ News reported that the EU will accept the principle that goods shipped from Great Britain to Northern Ireland and staying there should be treated differently to goods moving south into the single market for customs purposes. This would enable green lanes with lighter checks to be established at ports, as previously proposed by the UK.
Subsequently, the Guardian reported that an agreement has been reached on extending the green and red lane model beyond customs processes and broadening it to food safety and animal health checks – which are by far the most burdensome border procedures. The green/red lane proposal is predicated on the deal struck last month whereby the UK agreed to share real-time commercial data on goods moving across the Irish Sea, allowing random checks to be carried out on suspicious movements.
Despite the apparent progress on customs and food safety, EU officials have suggested that solving the governance issues raised by the Protocol are more difficult. Last week, the Financial Times suggested that one proposal under consideration would see a greater role for the Northern Irish judicial and political institutions, with the ECJ one step removed from supervising disputes. After all, the ECJ is not mentioned explicitly in the DUP’s seven demands on the Protocol.
Ultimately, nothing has yet been published and, with the Protocol, the devil is in the detail. Many of the ideas being floated in recent weeks have been around for a long time. For example, the European Commission proposed an “express lane” in its October 2021 package, which flattered to deceive.
Given that EU officials will be entitled to download information on the content and form of goods going through a green lane, it is assumed that a degree of data will be required from traders. What will traders need to do to qualify for the use of any green lane? How much documentation or data will need to be provided? Ultimately, these practical questions are what will make the difference – or not – to traders moving goods from Great Britain to Northern Ireland.
It is important that these questions are asked of any deal. However, no compromise will be perfect.
Politically, if the Government is satisfied with the outcome of negotiations, the best that can be hoped from the DUP is probably a grudging acceptance. Ultimately, the DUP are running their own race and mindful of more hard-line Unionists on their flank. If the DUP are unwilling to re-enter the Executive, this tension will need to be tested in fresh Stormont elections.
Meanwhile, in Westminster, concluding a deal will inevitably cost the Prime Minister some political capital with his hardliners in the ERG. However, what is a probable alternative? The Labour Party is waiting in the wings prepared to negotiate a deal that would require the UK to shadow EU food safety and animal health regulations in perpetuity, which would solve the Irish Sea border problem but reduce the UK’s flexibility in non-EU trade negotiations.
On the other hand, reaching an acceptable, if not perfect, compromise could unlock useful UK-EU cooperation on research and development, energy, and asylum. This would allow the Government to truly present Brexit as “done” and allow the Conservatives to argue that it is possible to have a functional relationship with Europe without a Labour government.