Uncertainty has been a recurring theme in the EU–UK relationship since 2016. The TCA, signed in 2020, remained deliberately silent on future cooperation in several key policy areas, and both sides have had to juggle the impact of a new agreement upon their trading relationship with the consequences of a global pandemic.
Matters are further complicated by the fact that the EU does not simply have a relationship with the United Kingdom as a whole. As a result of the Protocol on Ireland/Northern Ireland negotiated as part of the Withdrawal Agreement of 2019, it enjoys subtly different relations with Great Britain on the one hand, and Northern Ireland on the other. And it is the fallout from the Protocol that continues to dominate the broader relationship between the EU and the UK.
At the time of writing, the two sides find themselves in a stand-off over the UK’s insistence that the Protocol is not working and will need to be either renegotiated or unilaterally amended. Given the insistence of the EU on the need for technical negotiations to address practical problems, and its consequent refusal to contemplate the amendment of the Protocol itself, the British Government unveiled legislation allowing it to unilaterally overturn parts of the agreement. In response, the EU has threatened retaliation.
It has been a long and bumpy road from the referendum of 23 June 2016 to where we are today. The story of much of that intervening period has been recounted many times and does not need retelling here. Suffice to say that the sheer length of the Brexit process, and the bitterness and polarisation it engendered left the UK profoundly divided between rival political camps calling — respectively — for a second referendum and a hard Brexit.
Boris Johnson’s election as leader of the Conservative Party ensured the latter outcome. This in turn raised the thorny issue of the so-called Northern Ireland ‘trilemma’. Simply put, absent something approximating Single Market and Customs Union membership (negotiated by Theresa May in the form of her infamous ‘backstop’), the choice was between a border on the island of Ireland (rejected by both the UK and the EU) and some kind of special status for Northern Ireland that obviated the need for intra-Irish checks, consequently requiring them between Great Britain and Northern Ireland.
Mr Johnson opted for the latter. However, the way he did so — denying that the Protocol would necessitate any checks between Great Britain and Northern Ireland — laid the foundations for the bitterness that was to follow.
The Withdrawal Agreement containing the Protocol was agreed on 17 October 2019 and came into force on 1 February 2020. From April of that year, the EU– UK Joint Committee that it created negotiated how precisely the Protocol was to be implemented. Even before those negotiations started, the UK had produced a Command Paper (in May 2020) that argued for flexibility when it came to the frequency and complexity of checks on agri-food moving from Great Britain to Northern Ireland.
Because the Joint Committee did not come to an agreement until 10 December 2020, the two sides agreed on some ‘easements’ to allow businesses time to adapt.
A dispute over vaccine production in January 2021 led the EU to trigger Article 16 of the Protocol, blocking the transport of vaccines across the Northern Ireland border. The Commission argued that this was a necessary step to avoid ‘serious societal difficulties’ and protect vaccine supplies to member states, but eventually backed down.
Yet, tensions once again flared in March 2021, as the UK unilaterally extended the three-month grace period on agri-foods, leading the EU to begin legal proceedings against the government.
In July 2021 the UK Government published a Command Paper arguing not only that the Protocol was not working, but that technical fixes would not suffice. Rather, it argued that a renegotiation was necessary and the arrangements for overseeing the functioning of the Protocol — and particularly the role of the EU’s Court in those arrangements — must be overhauled.
Responding to the Command paper, on 27 July the EU halted its legal proceedings to allow time for negotiations. On 13 October, it published detailed proposals to simplify operation of the Protocol.
However, by the spring of 2022 the UK Government was arguing that such technical solutions were not enough and insisting again on a renegotiation while threatening unilateral action to amend the Protocol.
How the EU approaches future relations with the UK will hinge to a significant degree on the fate of the Protocol. Although cooperation will continue, notably over responses to the conflict in Ukraine, a number of issues will remain unresolved as long as uncertainty over the arrangements for Northern Ireland persists.
More broadly, as long as the UK is arguing in favour of a renegotiation, for which there is simply no support in the EU, relations will continue to be tense. More broadly, the threat of unilateral UK action keeps alive the prospect of retaliation from the EU, including the suspension of parts or all of the Trade and Cooperation Agreement, meaning continued uncertainty over the future trading relationship.
Peering further ahead, with all the caveats that this implies, there seems little scope for any further institutionalisation of EU–UK cooperation. The current Government is unlikely to agree provisions for formalised security cooperation (the prevailing view in London seems to be that events in Ukraine have illustrated that cooperation can take place absent such arrangements) or negotiate provisions for services trade as a supplement to the TCA (the allergy to anything smacking of freedom of movement led to the rejection of the EU’s offer of a mobility package during the original negotiations for the TCA).
The EU has little incentive to initiate such discussion whilst there is no desire from London. Going forward, though, there may be scope for the negotiation of additional arrangements under a different government — Labour have signalled their willingness to sign up not only to an SPS agreement, but also a security arrangement.
More broadly, the conflict in Ukraine — and consequent debate on potential Ukrainian EU membership — led to President Macron’s call for a ‘European Political Community,’ incorporating all those European states that are not members of the EU. This is a debate for the longer term, but any discussion of a Ukrainian relationship with the EU short of membership will necessarily involve talk of the UK–EU relationship, and whether this can be formalised in some way that reinforces cooperation.