Careful reading would indicate that, in essence, what the government sees as the way forward is to take considerably large steps backwards into a UK-EU ‘negotiation process’.
These would be quite different from the technical talks that have been ongoing between officials in the joint institutions that oversee the Protocol under Lord Frost and Vice-President Šefčovič.
The government wishes to see UK-EU negotiations so substantive as to create a ‘new settlement’ that would supersede parts of the Protocol (paragraphs 45, 70). In terms of ambition, this is quite some command paper.
But, without putting too fine a point on it, this won’t happen. The paper identifies no legal grounds for (re)opening negotiations. There is no evidence of an appetite for ‘Brexit: Round III’ from any member state. The EU Commission’s response was unequivocal: ‘we will not agree to a renegotiation of the Protocol’. And the Prime Minister’s efforts to persuade EU leaders otherwise have so far failed.
Nor does the paper change anything as far as the operation of the Protocol is concerned. The existing arrangements continue.
There is no indication of progress made following the EU’s ‘significant set of practical solutions’ announced on 30 June, and the clock continues to run down towards another cliff edge: 30th September, when most of the ‘grace periods’ expire.
Nevertheless, this command paper is far from mere gesture or game-playing. It has four weighty consequences for the situation around the Protocol, and in Northern Ireland.
What is its most important ask, and why should the EU pay heed?
The most substantive element in it relates to that ticking clock. The UK government seeks to ‘agree with the EU’ [the use of that verb is important] ‘a ‘standstill’ on existing arrangements’ (para.77). It includes the grace periods in this, plus ‘a freeze on existing legal actions’.
The latter is pretty hopeless (given the news that the EU is taking the next step in proceedings against the UK over its unilateral action in March), but the former is at least a possibility. Most close to the ground would say it is a necessity.
The UK is no more ready to see those grace periods end than it is to see its border operating model fully in force.
For all the drive to ‘get Brexit done’, and indeed to face two types of ‘no deal’, the UK is not yet fully able to manage the consequences of it at its borders. And – the government is absolutely right here – the fact that these requirements are to apply to intra-UK movement adds particular difficulty, regardless of the fact that it is across a sea rather than a land border.
Though it may feel frustration at the lack of readiness on the UK’s part, the EU will have to make a judgement as to the risks associated with the ending of the grace periods. The longer they go on, the greater the apparent risks to the integrity of its Single Market. But if they end too soon, then the risks of disruption are not confined to Northern Ireland.
The Protocol will feature heavily in the next Assembly election (due in May 2022) as a totemic issue. Those MLAs elected will have a ‘democratic consent vote’ on Articles 5-10 of the Protocol at the end of 2024. This constitutes a route by which the UK and EU could well end up renegotiating the Irish sea/land border issue anyway.
In this way, and as unlikely as it sounds, just as the EU’s decisions in the coming months will affect Northern Ireland, so the decisions of NI voters within the next 10 months will be consequential for the EU.
What does it mean for business, and why might it disappoint many?
The command paper notes that the intended purpose of those grace periods is to allow businesses ‘to adapt’ to the new arrangements (para. 16). Such adaptation includes adjustment to avoid barriers to trade.
However, business efficiency in sourcing locally and making use of free access to the Single Market (i.e. across the Irish land border) to lower costs and offer consumers choice is seen here as wholly negative. So much so, in fact, that it is labelled as ‘diversion of trade’ (para. 29, 31) and thus reasonable cause to use Article 16.
The paper posits such safeguard measures as potentially being used to extend grace periods or to change the ‘broader arrangements’ under which goods enter NI from GB (para. 32).
Thus, despite recognising that it is ‘vital to provide certainty and stability for businesses’ (para. 77), the government holds out the possibility of future unilateral action, potentially in the autumn, that could well literally (but temporarily) shift the boundaries.
This is despite the fact that few business voices in Northern Ireland or Great Britain have been calling for Article 16 to be triggered or for the Protocol to be scrapped. What they have been repeatedly requesting – since long before the end of the transition period – is certainty, stability and clarity of procedures.
The difficulties that most businesses complain about with the Protocol are with respect to the complexities of the situation, such as mixed loads with goods from GB destined both for NI and ROI, paying EU tariffs on EU goods entering NI via GB, and glitches and inadequacies in the IT systems.
These are burdensome and they do have negative consequences, but they hardly constitute the ‘unacceptable disruption to day-to-day lives’ (para. 74) that the government claims (especially while the grace periods are in force).
Such matters can be resolved largely through the work of the Specialised Committee, whose continuing technical talks are leading to some legislative change in the EU to allow flexibilities for Northern Ireland. Or, if more substantial, the Joint Committee could adopt a decision to amend the Withdrawal Agreement if ‘necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed’ (Article 164[d]).
The UK government is seeking fundamental changes of the type and scale it thinks requires renegotiation, but fails here to present evidence as to what cannot be resolved through the existing means.
What does it mean for stability in Northern Ireland, and what are the effects?
The command paper seeks a ‘new balance’ in the Protocol, and this can be interpreted in two ways. One is a new balance between the UK and EU in a ‘partnership of equals’ (para. 66); the other is the balance between north/south and east/west relations between these islands (para. 7).
As noted above, the command paper hints at a ‘zero-sum’ interpretation of the situation, in which cross-border trade is at the expense of GB-NI trade, or north/south cooperation is at the expense of east/west. When this view is attached to political identity in Northern Ireland, it can only deepen divisions.
The command paper states that ‘disruption to trade has in turn exacerbated the perceptions of separation and threat to identity within the unionist community’ (para.29). It claims that the lack of unionist ‘buy-in to the existing arrangements’ brings tension into the power-sharing institutions (para. 29) and thus the basis for ‘the functioning of the Belfast (Good Friday) Agreement’ risks being undermined (para.24).
As an aside, it may be said that the absence of buy-in from nationalists (and the majority of NI voters) to Brexit similarly brings tensions to heart of the Executive and Assembly – but the UK government never does say this.
Nor does it make efforts to acknowledge that the fact that Northern Ireland is outside the EU and inside the UK is fundamentally far more in accordance with the sensibilities and wishes of pro-Leave unionists than pro-Remain nationalists. It is necessary to place the debate in this context.
This is a peculiarly unhappy and fragile situation, and there are no winners here.
Given all this, those in Northern Ireland who are seeking to hold up the democratic institutions and keep them operational, those who try to hold back forces of violence and keep them marginal, and those who work to sustain the economy and keep people in jobs are the ones who should be being recognised and listened to.
But the focus in this command paper is on a different (minority) group and on a different objective. It points to ‘a backdrop of growing protests, including instances of disorder’ (para. 25) as evidence of serious ‘societal difficulties’ that could potentially justify the use of safeguard measures.
As such, the negotiating hand of the government is apparently strengthened by acts of disorder. Loyalist protestors were quick to catch onto this, as one of the most prominent such agitators articulated in his analysis of the paper for Unionist Voice:
the protests, all of them, and especially the campaign of unnotified public processions … played a key role in creating the circumstances for the triggering of Article 16. It is obvious to therefore point out that a renewed and intensified campaign of protest… provides a clear lever for the PUL [Protestant Unionist Loyalist] community to pull in order to dictate the pace of progress in the ultimate removal of the Protocol.
However sincere the government’s concerns are for stability and the 1998 Agreement, the language it is using about the Protocol is currently encouraging and incentivising those who seek instability and the collapse of the Agreement’s institutions.
It may be a rather phoney UK-EU war, but it has all too real – and, once unleashed, hard to contain – consequences in Northern Ireland.
What hopes does it raise, and to what ends?
The UK government wants some things to be entirely different after Brexit (no Court of Justice role, no EU subsidy control rules [para. 64]); and it wants some things to be exactly as they were before Brexit.
It goes so far as to hold out the prospect of NI having ‘normal access to goods from the rest of the UK’ (para. 40). In fairness, this would be a wish of all citizens from all viewpoints on the island of Ireland. But in reality, there is nothing in this paper that would grant them this, even if Article 16 was invoked.
The UK government is careful to state here that it is not going to be ‘over-prescriptive about solutions’ (para. 46). This is perhaps is understandable given the reaction to previous models, but also rather leaves the onus with the EU to come up with solutions to a problem it is not convinced exists.
What the paper offers as ‘one possible compromise model’ would recognise the regulatory and customs border GB-NI but get around the most awkward consequences of it being there. It does not seek to remove the need for paperwork, but it does seek to minimise the number of checks.
In essence, the UK government hopes that Northern Ireland could operate a dual regulatory system for goods (including agri-food) even as GB and EU standards diverge, simplified paperwork for GB goods destined for NI, a more inclusive trusted trader scheme, and world-class market surveillance and data-gathering, albeit with minimal means of verifying said data.
When all is said and done, the command paper is directed at the British and not the Europeans. It was judged to be just enough to convince a domestic audience that there are ‘pragmatic’ alternatives to the proper operation of a regulatory and customs border.
Crucially it is enough to convince those opposed to the Protocol, particularly unionists, that its full implementation is unreasonable and unnecessary.
Feeding the notion that Brexit can mean sovereignty without the downsides (in other words, that border checks and controls are optional) keeps the discussion of Protocol in the realms of denial and fantasy. In the context of Northern Ireland politics, this means further frustration and polarisation.
What is the upshot of all this?
This is a strategy that simply deepens the hole that the UK government has dug for itself over this.
The UK is clearly counting on the fact that the EU won’t impose border controls on the island of Ireland or between Ireland and the rest of the Single Market. As such, it rather cynically judges the problem, ultimately, to be the EU’s.
This may work well for a domestic audience. But take such a strategy to the international stage and, to coin a phrase, you would have to have a screw lose to think that this a good look for Global Britain.
We are left with three possible reactions from the EU. It has a sudden change of mind (perhaps a pang of conscience over the 1998 Agreement) and decides to trust the UK government with a light-touch, honesty-box customs and regulatory border. There is no evidence that this could happen, especially not now.
Or it loses patience and utilises the tools at its disposal to ‘retaliate’. This could include tariffs on some sectors of GB-EU trade, or exclusion from EU programmes. Such a response would have far more of a negative impact on Britain than the Protocol currently or potentially does.
Perhaps the government thinks that it could take it, but at what cost – and why?
Or the EU simply redoubles efforts to make the Protocol work through the institutions and mechanisms that exist; that is, ‘through cooperation and consultations, to arrive at a mutually satisfactory resolution of any matter that might affect its operation’ (Withdrawal Agreement, Art. 167).
This is what it has indicated it intends to do: ‘Joint action in the joint bodies established by the Withdrawal Agreement will be of paramount importance over the coming months.’
We can only hope, after a summer like this one, that September will bring less heat and more light to the Northern Ireland Protocol.
By Professor Katy Hayward, senior fellow at UK in a Changing Europe.