The recent excitement over a ‘breakthrough’ in the talks on the Northern Protocol revealed what many had suspected. This was that the formal talks taking place over recent months solely addressed EU concerns, in this case, the EU desire for real-time access to UK customs data which is currently provided by all firms selling goods into NI from GB. The EU now has details of all goods bound for NI even before the lorries board the Irish Sea ferries. Actually, they have had this data for the last three months, during which they have been trialing the new customs declaration system which HMRC have been developing for two years. A further move towards meeting EU demands has been the announcement of legislation for UK oversight of border customs posts in NI (despite the previous Irish demand for no border posts anywhere on the island).
The ‘breakthrough’ was not in meeting UK demands. It comes instead in removing the roadblock to the start of intensive discussions. Until now the EU have not permitted any formal talks, as far as we know, to address the UK proposals outlined in Lord Frost’s July 2021 Command paper. Media reports of the ‘breakthrough’ gave no explanation for why the UK proposals could not have been discussed in parallel with the EU demands for access to data. However, there do seem to have been background contacts to prepare the way for the current talks which this week’s Times story suggests are making some progress. The Times story of an incipient agreement may have been kite-flying but gives us some insight into the nature of the agreement being discussed.
The suggestion is that checks will be reduced further on goods going into NI from GB (but no indication that customs declarations will be removed). The role of the ECJ, it was suggested, will be pushed further into the background with more input from NI’s (nationalist-dominated) courts. This takes us a little way, but not nearly far enough in agreeing the UK’s Command paper proposals and hence the DUPs seven demands which overlap with these.
The UK’s 2021 proposals are firstly, applying full Irish Sea customs and food-checking (SPS) processes only to goods destined for the EU and not to those destined solely for NI. Second, that the EU-controlled regulatory environment in Northern Ireland should be loosened to allow goods regulated by UK authorities to circulate freely in Northern Ireland. Thirdly, the relationship between the UK and the EU is not ultimately policed by the European Court of Justice. Finally, there is need for reduced EU involvement in VAT rates and structures. To protect the EU Single Market, the UK is willing to introduce export controls described as “new legislation to deter anyone in Northern Ireland looking to export to Ireland goods which do not meet EU standards or to evade these enforcement processes “.
What can we realistically expect from the current negotiations? The EU showed their hand in October 2021 when they claimed to have offered cuts of 80% in customs declarations. Lord Frost later revealed that these involved no reductions in the number of declarations. Instead, they removed less-important lines required in customs declarations but saved little time, effort or cost for firms. Most importantly, they did nothing to address the demands of Northern Ireland’s unionists for the complete removal of the trade border between NI and GB and the restoration of democratic processes for commercial regulations within NI. The EU was only willing to ease the application of the Protocol but not change the Protocol itself. It saw the problems solely as practicalities and did not address the constitutional issues which lie at the core of unionist and ERG concerns. In particular, there was no willingness to remove undemocratically imposed EU regulations in NI, nor to drop ECJ oversight on the application of these regulations.
Three years after the UK left the EU there does however seem to be an EU recognition of a need for amicable co-existence to replace the pique of a rejected partner. The UK government would also love to get this running sore out of the way. Some progress is now possible. The new agreement on EU access to UK trade data provides a potential way forward on trade. At present, the data consists of customs declarations but could be diluted to consist merely of invoices or similar commercial information for ‘green-lane’ goods destined solely for NI. In this case it could be claimed that a green lane is not a customs border and hence not of constitutional importance. The trade data would instead merely be to help the EU police its real border, the land border in Ireland.
This would only be a start. Goods entering NI for processing rather than consumption would still worry Brussels since the processed goods could still easily enter the EU across the uncontrolled land border. For the same reason, the EU will object to the proposal that UK regulations could be used for goods produced within NI and not destined for the EU since unregulated goods can easily cross into the Republic. There is little sign that Brussels accepts a need to rely on UK legislation to forbid exports to the EU which contravene EU regulations. Until it does so, the undemocratic EU regulations and constitutionally unacceptable customs declarations will remain a block on progress.
The EU cite the example of infected South American oranges entering GB. If these got into NI and across into the Republic of Ireland, they could end up severely damaging the Spanish orange industry. The same oranges could of course enter the EU from Dover but in theory they could be intercepted by French customs. In practice, this would only occur if French customs had intelligence that they were coming, but potential interception would act as a deterrent. In NI without a land-border, vigorous enforcement by the UK would be needed to support legislation protecting the Single Market. The EU has always, perhaps wilfully, mistrusted UK intentions on such issues. We will see whether this has changed but there is little sign of a new approach from Brussels. Nor is the EU willing to agree the key DUP demand of completely removing ECJ oversight of the Protocol.
Rishi Sunak has faced the difficult decision of deciding whether to take on either the EU or the DUP plus the ERG, Boris Johnson and Liz Truss. He has already stalled the Protocol Bill in the Lords thus easing pressure on the EU. Keir Starmer’s oily Belfast speech offered Labour’s help in overcoming what he described as ‘the Brexit purity cult’ of the DUP and ERG. The PM of course hopes that a deal with the EU can be reached to satisfy both sides. If, as seems likely, Brussel’s offers only minor improvements to the Protocol he will be faced with an implacable DUP and no NI Assembly. Closer to home he would also face a party split with the ERG opposing any fudge. A temptation to use Labour backing in removing the cross-community consent core of the Good Friday Agreement to get the Assembly back in action risks a new generation of grievance in Northern Ireland and will split his party.
In clearing his lines for the next general election Sunak will want to avoid the distractions of conflict in NI and, more than anything, a split party. He is also likely to view the possibility of open conflict with the EU, and a trade war, as electoral poison. The most likely way through this impasse is a new agreement, sitting on top of the existing Protocol and introducing a new set of principles on how the Protocol will be operated. It is essential that such an agreement preserves the constitutional status of Northern Ireland. Brussels appears to be closer to understanding this but is unlikely to offer enough to get us over the line of restoring the NI Assembly and saving the Good Friday Agreement.
Dr Graham Gudgin was special advisor to First Minister David Trimble in Northern Ireland 1998-2002. A version of this article appeared on the Conservative Home website at: https://conservativehome.com/2023/02/03/graham-gudgin-the-northern-ireland-protocol-brussels-is-still-unlikely-to-offer-enough-to-restore-the-assembly-and-save-the-good-friday-agreement/