In just over a year of negotiations, the Government completed our withdrawal from the EU and agreed a Trade and Cooperation Agreement – the broadest and most far-reaching bilateral trade agreement ever. Unfortunately, one vital area of this partnership is not working well – the arrangements relating to Northern Ireland set out in the Northern Ireland Protocol.
Unfortunately, the Protocol is not working in its current form. It is not delivering on core objectives: to minimise disruption to everyday lives, respect Northern Ireland’s integral place in the UK’s internal market and preserve the delicate balance in the Belfast (Good Friday) Agreement in all its dimensions – East-West as well as North-South.
The EU’s inflexible approach to customs checks and processes required by the Protocol is having a significant impact on the everyday lives of people in Northern Ireland, with reduced choices for consumers and increased costs for businesses. This is not sustainable and has already increased community tensions. The Government has tried to operate the Protocol in good faith, but the problems are significant and growing. There is political turbulence, societal difficulties, and trade diversion.
The Protocol itself provides a safeguard mechanism, under Article 16, which is in place to address circumstances where the application of the Protocol has led or would lead to serious societal and economic difficulties liable to persist, or where diversion of trade would occur. Unlike the EU, the UK has not sought to invoke this safeguard mechanism so far, notwithstanding the very considerable challenges that we have seen since the turn of the year and particularly in recent months.
Despite the unusually broadly drawn text of Article 16 being designed precisely with such circumstances in mind, and the government firmly showing that that the circumstances exist to justify using Article 16, the Government has quite rightly chosen to pursue a path of consensus. On this basis, the Government presented a Command Paper to Parliament in July, titled ‘Northern Ireland Protocol: The Way Forward’ which sets out and proposes three solutions that seek to address the unique circumstances in Northern Ireland.
The first is to ensure that full customs processes are only applied to goods genuinely destined for the EU. The second is to allow goods meeting both UK and EU standards to circulate freely in Northern Ireland and the third is to remove the role of the European Court of Justice in governing the Protocol.
- On solution one, the Protocol itself already accepts the principle of different treatment of goods depending on their ultimate destination, and that the parties must use best endeavours to streamline trade and avoid controls at Northern Ireland ports and airports. We need to find a way of ensuring that full customs and SPS processes are applied only to goods destined for the EU.
- On solution two, we need a full dual regulatory regime in Northern Ireland. Goods should be able to circulate within Northern Ireland if they meet either UK or EU rules, as determined by UK or EU regulators, and should be labelled accordingly. Of course, goods destined or produced for the EU Single Market would need to meet EU rules in full.
- On solution 3, the relationship between the UK and the EU should not be ultimately policed by the EU institutions including the Court of Justice. The existing arrangements are highly unusual and have not proven conducive to solving the issues that have arisen. Arbitration is the correct approach but it shouldn’t be unfair.
Fundamentally, a deeply unsatisfactory situation in Northern Ireland has emerged and it right that the UK and EU assess the role of the Northern Ireland Protocol and the negative impact that some of the measures are having.
These issues can have serious impacts on businesses in the South West (as well as the rest of the UK) who export to Northern Ireland, therefore it is crucial that solutions are found. As ever, any measures agreed to need to show that all parties’ commitment to the Belfast (Good Friday) Agreement is unshakeable and resolute.