Three months have passed since the UK government declared it wanted to fundamentally rewrite the Northern Ireland Protocol, and the EU has now put forward an ‘alternative model’. It has portrayed this as a response to concerns raised by political leaders and businesses in Northern Ireland, but while both the EU and the UK have come to realise difficulties which they hadn’t foreseen Lord Frost will see this as a vindicating his tough negotiating stance and repeated threats to trigger Article 16. A route to a deal looks possible.
However, while the EU has offered real concessions, these proposals are far from ‘oven ready’, and further compromise on both sides will be necessary. For the UK, this requires setting aside is ideological opposition to the role of the European Court of Justice in exchange for fixing some of the practical problems on the ground.
The European Commission has, until now, been unwilling to compromise on the strict application of its rules on animal and plant health that it argued were vital to protecting the EU single market. But the EU says its latest proposals will reduce these checks by 80%, suggesting the kinds of easements that it rejected during the years of negotiations with Theresa May’s government.
The EU has also offered to remove some customs paperwork for traders whose goods meet the criteria to prove they are staying in Northern Ireland, and has made some further proposals to minimise disruption to the supply of medicines.
This is all good news for Northern Ireland businesses, addressing many of the problems they have raised. However, while Commission vice president Maroš Šefčovič has said it was Northern Ireland stakeholders who informed and shaped the proposals, it is the UK government that the EU will be negotiating with – and these proposals fall still short of the UK’s demands.
While the new approach would free business from much of the bureaucracy of the current protocol, the EU’s proposed flesibilities comie with conditions and safeguarding measures which will be unappetising to UK ministers.
The EU may have found a solution to allow sausages – usually prohibited from moving from a third country to the EU’s regulatory zone – to cross the Irish sea, but this requires Great Britain to align with EU production standards. There are also mechanisms to allow the EU to act swiftly and unilaterally if it feels rules have been breached, and new rights for EU officials to monitor checks on the grounds. This is likely to be a sensitive topic, with the UK already having refused permission for Commission to have a permanent office in Belfast.
Several proposals also include review or termination clauses, which mean the flexibilities could end at the EU’s behest. It is understandable that the Commission wants mechanisms to penalise a government with form on going back on agreements, but the UK government – which has repeatedly demonstrated that sovereignty is a prize to be a valued above any other – will be resistant.
While the EU’s proposals are a big opening offer, the biggest problem is what these proposals leave out. The UK wants to see changes to VAT, state aid, the movements of pets and, most problematically, the role of the European Court of Justice in enforcing EU law in Northern Ireland, but – so far at least – the EU is not willing to make further concessions in these areas.
For the UK, the role of the ECJ is about sovereignty. Having fought so hard to avoid a role for the court in the UK-EU Trade and Cooperation Agreement, even compromise options – like the Swiss model that maintains a role for the court but gives final decisions to an arbitration panel – may well be unacceptable to Brexit minister Lord Frost. But the EU sees the ECJ’s role in upholding EU law as central to its legal order, and a red line that cannot be crossed.
To date, the prime minister has backed Lord Frost’s approach – but Boris Johnson will be under pressure to compromise if it paves the way for an agreement that addresses the practical problems on the ground.
Solutions that address many of the UK government’s concerns with the protocol are available, but any way forward will involve a role for the ECJ. The next few weeks will determine whether the government will opt for practical fixes, or sacrifice them in the name of preserving its red lines.
This comment was co-authored with Joe Marshall