The first months of 2021 have been a tumultuous period for the Protocol on Ireland/Northern Ireland, as the UK and the EU have been faced with the economic, legal, and political realities of Brexit and of understanding and implementing what they jointly agreed with the Withdrawal Agreement.
These early months were always going to be challenging as the inevitable disruption of the UK leaving the EU Customs Union and Single Market at last kicked in.
The Protocol has rarely been out of the headlines, what with vocal unionist opposition to it, calls for the UK Government to trigger unilateral safeguard measures under Article 16, assorted threats to do so, the political furore around the European Commission’s near use of Article 16 as part of its export authorizations for Covid-19 vaccines, and EU concerns about the UK’s implementation efforts.
With the joint statement following the most recent meeting of the UK-EU Joint Committee on 24 February, a page appeared to have been turned.
In a ‘spirit’ of ‘joint action to make the Protocol work’ the committee’s co-chairs, Michael Gove and Maroš Šefčovič, reiterated the ‘full commitment’ of the UK and the EU ‘to the proper implementation of the Protocol’.
There was a ‘shared commitment’ to give effect to solutions to issues agreed in December, a ‘shared desire to act at pace’ and an agreement that a further Joint Committee would be held ‘to provide further steers and where appropriate approvals’. The idea was to re-convene in mid-March.
Then came the UK Government’s announcement on 3 March that it was taking unilateral action on the implementation of the Protocol. It would be extending a three-month grace period for supermarkets to adjust to new arrangements for the movement of agri-food products into Northern Ireland until 31 October.
Announcements concerning an extended grace period for parcel movements and to ‘address practical problems on soil attached to the movement of plants, seeds, bulbs, vegetables and agricultural machinery’ would follow.
News of the UK move was met with a swift and forthright response from the European Commission. The UK action amounted to ‘a violation of the relevant substantive provisions of the Protocol … and the good faith obligation under the Withdrawal Agreement’. Once again, the UK Government was ‘set to breach international law’. The European Commission would be responding ‘with the legal means’ established in the Withdrawal Agreement.
Whether the European Commission does launch infringement proceedings remains to be seen. It did so in October 2020 over the UK Internal Market bill, so there is no reason to doubt that it would again. Given reported frustrations over the UK’s approach to implementation of the Protocol generally and the reaction to the UK unilateral action, there may well be strong voices of encouragement coming from some member state capitals, even if others (e.g. Ireland) are not keen to see legal proceedings.
Equally there will be voices focusing more on following through on what Gove and Šefčovič agreed at the Joint Committee on 24 February.
Some may be tempted to view the UK unilateral action as essentially David Frost announcing his arrival as the UK minister now responsible for UK-EU relations and the implementation of the Protocol.
A benign view is that the move puts into the public domain what the UK regards as a pragmatic response to calls from the business community and others for the grace periods to be extended so as to deliver on the UK-EU commitment of ‘avoiding disruption to the everyday lives of the people of Northern Ireland’.
It is also worth noting that the existing grace period is based on a unilateral UK declaration of which the EU then took note in December, albeit stressing that ‘This approach will inform the position of the Union as regards recourse to the exercise of the powers referred to in Article 12(4) of the Protocol’.
As Frost maintains, the UK is essentially extending arrangements already in place and doing so in a manner ‘entirely consistent with our intention to discharge our obligations under the Protocol in good faith.’
Others will disagree given the concerns that have existed throughout the period since the UK formally withdrew from the EU on 31 January 2020. Many of these will view the UK unilateral action as a breach, at least in spirit, of its obligations under the Protocol.
These include implementing EU law as specified in the Annexes to the Protocol as well as managing implementation of the Protocol through the institutional framework that has been set up and to which the UK formally remains committed.
Full and effective UK-EU engagement through that framework needs to be routinized if there is to be successful management of the Protocol’s implementation.
This includes finding the ‘pragmatic solutions’ and adopting the ‘further steers and where appropriate approvals’ to which the Joint Statement following the recent Joint Committee refers.
Having jointly agreed the Protocol, an important step in the much-needed rebuilding of trust around its implementation is engagement with its mechanisms for and working towards joint action.
The extent to which the UK now uses the Specialized Committee and Joint Committee and works actively in the establishment and effective operation of the Joint Consultative Working Group is going to be an important indicator of its commitment to addressing relevant Protocol issues jointly with the EU.
Securing the shared UK and EU objectives of the Protocol – addressing ‘the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions’ – requires a joint approach to issues. It also requires trust, and solo runs rarely help. Given the events so far in 2021, both the UK and the EU must be aware of this.