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Who was responsible for the NI Protocol?

2023 04 25 22 35 02

Responsibility for the Northern Ireland Protocol will be a controversial issue for historians for many years to come. In this article Andrew McCormick contests the account given by Lord Frost of why the Protocol was agreed.

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In his forward to Roderick Crawford’s paper for Policy Exchange advocating renegotiation of the Protocol, Lord Frost reaffirmed his arguments that the Johnson Government had no option but to accept the Withdrawal Agreement in October 2019. In his speech in April 2022, he had said that:

“We faced a choice – take this deal and try to get it through Parliament, and sort out the detail in 2020 while we were negotiating the trade agreement… or walk away, fail to deliver Brexit on 31 October, and almost certainly see the Government collapse.”

I have reason to doubt that account but in this paper I want to focus attention in particular on Lord Frost’s reference to “sorting out the detail in 2020” – as whatever may or may not have been the case in 2019, the negotiations in 2020 were a real opportunity, and the facts about what happened then are clearly known, understood, and stated in official documents.

For simplicity, I propose to focus on the issue of Border Control Posts (BCPs) as one of the most contentious aspects of the settlement. I am not seeking to argue for or against the merits of the approach taken by the UK government at any stage, but to focus on the facts about how the problems arose.

The May administration had striven to deny or avoid the hard choices that were needed, but were clearly leaning towards the option of continued UK-wide regulatory alignment. The Protocol was the consequence of the Johnson administration’s clear choice (as stated explicitly in his speech on 2 March 2023 at the Global Soft Power summit) of leaving the Single Market and avoiding a hard land border in Ireland. The government was also well aware of the very serious adverse consequences that would have arisen from a “no deal” outcome in the particular context of Northern Ireland, and while Parliament had intervened to prevent “no deal”, its potential consequences remained relevant to the decision on how to proceed. Boris Johnson claimed to have ditched May’s “anti-democratic backstop” but instead was opting for a border in the Irish Sea, because his priority was to enable Great Britain to have a form of Brexit that would allow as much divergence between UK and EU regulation as the UK might wish to have in future. But by October 2019, it was crystal clear that that choice could only mean checks and controls between Northern Ireland and Great Britain.

At a meeting between a group of senior Northern Ireland civil servants and the Barnier Task Force in October 2017, we were told that the Commission’s view of risk in relation to the controls over agri-food products entering the EU, was “zero tolerance” (because these controls aim to protect animal and plant health, and hence human health). I heard that main point repeated many times, even up to 2022. The UK negotiators must have also heard and understood the same message. BCPs are a central feature of EU’s approach to controlling what enters its borders.

In a conversation in October 2019, after the Withdrawal Agreement had been settled, UKG officials warned me that the deal would place a real and difficult responsibility on the NI Civil Service to operate the BCPs at the points of entry to Northern Ireland, as the relevant responsibilities are devolved to the NI Executive (as to the Scottish and Welsh Governments).

In considering the issue of the need for BCPs, and the scope of their functions, the following four statements are relevant:

“…we were even told that we would “not be able to move one kilo of butter from GB to Northern Ireland”, that is that agrifood rules and standards might be used to ban some movements altogether.” [implicitly if the UK was not implementing the Protocol]

  • “Agri-food goods entering Northern Ireland from Great Britain would do so via a Border Inspection Post or Designated Point of Entry as required by EU law, building on the provisions that already exist to support the [Single Epidemiological Unit].”
    • “ [if further designation of BCPs is not achieved in time]…by the end of the transition period…. there will be no entry point solution in Northern Ireland for [some essential categories of agri-food produce]”

“During the above-mentioned period of time [the grace period in relation to most agri-food goods], the UK authorities will take all necessary measures to ensure compliance with the Protocol and relevant Union law as of 1 April 2021. The UK accepts this solution is not renewable.”

 These differ markedly in tone and style, but all have exactly the same substantive meaning – that the Protocol included agreement that EU law would apply to all agri-food goods entering Northern Ireland – legal obligations which include the designation of BCPs to facilitate the agreed controls.

The first of the four is from Lord Frost’s speech on April 2022, and rhetorically implies that, during 2020, the EU was acting in a way that was unexpected and unreasonable.

The second is from the paper that Prime Minister Johnson sent to President Juncker on 2 October 2019 as a key element of his proposals to replace the Backstop. This shows without ambiguity that the UK proposed the full application of EU law at BCPs (some of which already existed to deal with imports from non-EU countries).

The third statement is from a letter from DG SANTE to DEFRA in April 2020, which states the same point in a different way. As I was told at the time, the letter reflected concern on the EU’s part that there was no evidence of progress towards the creation of the new or expanded BCPs, which were needed to implement a central and essential element of the Protocol. My colleagues in DAERA had estimated that establishing BCPs that would meet the standard requirements would take over a year. The DG SANTE letter led to a strongly stated request from UK officials to me and my colleagues in the NI Executive to act urgently to create the BCPs, given that, as I had been told in October 2019, only the Executive and not UKG had the legal powers to create and operate BCPs in Northern Ireland (a position only recently amended by a special legislative intervention at Westminster). I have rarely known such pressure to comply (as UK officials told me the matter was on the critical path in the discussions on the Protocol) nor such gratitude for the part I played in contriving a way forward – when the Executive agreed formally to comply with the need to create the BCPs at a meeting in May 2020.

Not only was the need for the BCPs known and understood (as is also crystal clear in the Command Paper on the Protocol of May 2020), but UKG officials can only have been acting under firm direction from Ministers in wanting urgent progress on the issue. That position was indeed subsequently confirmed in formal Ministerial correspondence. So, it was clear UKG policy in 2020 that the BCPs should be created and should have the capacity to apply the full original terms of the Protocol, which would have required them to be able to deal with the full scale of lorries arriving from Great Britain with agri-food produce.

During 2020, exactly as Lord Frost said in his speech, there were detailed discussions on the Protocol, when most of the complex obligations, especially on agri-food goods, emerged for all to see (though I and others were prevented from explaining to the EU some unique aspects of the challenges).

In light of these clear facts, and remembering the approach stated by the Barnier Task Force from October 2017 onwards, I do not see why the stern words quoted by Lord Frost (within the first of the four quotations above) would have been at all surprising or different from the agreed legal position. Nor can I explain the claims that the UKG did not appear to realise that all agri-food goods entering Northern Ireland would be subject to checks and the full application of EU law. Prime Minister Johnson’s paper does not make any reference to checks applying only to goods that might enter the EU, but dealt simply with all goods entering Northern Ireland – for the clear and simple reason that the absence of a land border means that all such goods could possibly enter the EU, and hence the BCPs were the agreed means of ensuring the necessary protection of the animal and plant health status of the island of Ireland as a Single Epidemiological Unit. Having different controls on issues related to animal and plant health (from the import of live animals to movement of soil, or agri-food goods of all kinds) would appear to contradict or undermine that concept.

This confirms beyond any doubt the clear fact that the implications of the deal were known and understood at latest in the course of 2020. Indeed, the Impact Assessment is clear evidence that all the key issues were known in October 2019 and before. Lord Frost and the then Prime Minister have claimed that they did not expect the Protocol to have the effects that began to emerge as soon as it started to be implemented in January 2021, but I find that impossible to reconcile with the documentary evidence, or my recollection of the events in which I was involved at that time.

My central point is that the natural reading of Lord Frost’s speech would be that their intention in October 2019 had been that 2020 would have been used to seek to correct or replace the unsatisfactory aspects of the Protocol that (allegedly) had had to be accepted in haste and under duress in 2019. But no. The fourth quotation above is from one of the key documents agreed at the end of 2020 – a unilateral declaration by the UK, which committed to full compliance with the agreed original terms of the Protocol after a three-month grace period. The declaration does not make any amendment to the terms, and explicitly gives no latitude for any extension of the grace period. So, the evidence shows that the UK government did not use 2020 to “sort out the detail” and soften the potential application of the Protocol, while negotiating a TCA which allowed no scope for any mitigation of checks and controls on agri-food goods moving from Great Britain to Northern Ireland. I am well aware that in the negotiations in 2020 the UK pressed very hard for more favourable and flexible terms, but in the final analysis they agreed to the terms summarised above, and presented them publicly as acceptable and deliverable.

Much has changed since then – not least the fact that, from February 2021 onwards, the government changed its stance radically: instead of saying that the arrangements agreed in December 2020 were a good basis for moving forward, they started saying (correctly) that a much longer preparation period was needed for implementation of the Protocol. In addition, it was only after that point that the UKG began to argue that there were major issues of principle (though nothing that was not apparent at the time when the Withdrawal Agreement was negotiated and ratified). These facts beg the question – why did the UK not only agree the Protocol in October 2019, but go on (in December 2020) to confirm firmly and without equivocation that it could and would be implemented – long after any issue of duress, or difficult parliamentary arithmetic had disappeared, and the so-called Surrender Act had been repealed?

The answer is pretty clear – for all their rhetoric, the UK needed a trade deal, and were committed to securing the maximum scope to diverge from EU regulations. That could only be secured alongside re-affirmation of the Protocol.  They had clear alternatives – for example, the Northern Ireland First Minister and deputy First Minister advocated a veterinary agreement in a joint letter in November 2020, and both they, and we as their officials, urged on a weekly basis through the autumn of 2020, that the TCA negotiations should take careful account of the implications for the operation of the Protocol. But it seems clear that regulatory freedom for GB was the absolute focus, and, in 2020 as in 2019, the Northern Ireland issues were treated carelessly and as of little importance.

The need for BCPs to check all agri-food goods entering NI from GB arose from the clear and conscious decision by the Johnson government on their approach to Brexit, and the EU’s insistence that the standard approach that applies at the EU’s external borders should apply. The basic idea that a third country (the UK) would be responsible for protecting part of the EU’s external border was itself unprecedented, and hence negotiating further unique and unprecedented detailed arrangements was difficult in 2020. No viable alternative was identified at that time. Only very recently, in the Windsor Framework, has a different approach emerged, with a bespoke solution that applies controls that are proportionate to the (relatively small) actual risks.

In summary, I find it impossible to reconcile Lord Frost’s interpretation of the events of 2019 and 2020 with the documents of record as issued by the government, nor with my clear recollection of the key events in which I participated. The UK government’s present approach is a very significant step, and has secured concessions that I had thought very unlikely. Hence, there is now an opportunity to move forward and build on the position now agreed between the UK and the EU.

Dr Andrew McCormick was a senior official in the Northern Ireland Civil Service holding the posts of Permanent Secretary in Economy and in Health and finally Director General for International Relations in the NI Executive Office. He is currently Chair of the European Christian Mission Ireland.

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About the author

Dr Andrew McCormick