It is easy enough to find fault with the existing Northern Ireland Protocol, but how should it be revised? The objective was, and remains, to obviate the need for a customs and regulatory land border between Northern Ireland and the Republic. When the Protocol was first drafted, it was not certain the EU and the UK would agree to duty-free trading.  When that happened, many in the UK naively believed it would remove the need for more than token checks at the border.  They had forgotten that the EU is besotted with regulation but that is where the problem mostly lies, and not just in Ireland.

The alignment of regulations is the nub of the whole problem, followed by the need for a pragmatic approach to paperwork and inspections. The EU is demanding all kinds of bureaucracy, paperwork and veterinary inspections, and even the colour of ink used on forms, which some believe to be punitive rather than businesslike. 

The problem concerns goods, not services, traded from Northern Ireland to the Republic, i.e. the EU.  The UK should not be bothered by imports and it is bizarre that the UK is creating blockages from, as well as to, Ireland. The problem can be divided into two: goods from Great Britain and goods created in the Province, both intended for the Republic. 

An earlier blog suggested that the blockages to GB shipments to Northern Ireland could be resolved by demarcating them “north” or “south” according to their final destination, with the former needing no paperwork or customs formalities, and only the latter receiving the customary checks by EU officials. There is a simpler solution: ship the latter goods direct to the Republic.  That would only leave the question of goods becoming part of products made in the Province and then destined for the Republic.  They could be treated in the same way as other goods made in the Province. As the Province is part of the UK, no Irish Sea border would then be required, thereby honouring Boris Johnson’s promise. 

The EU is concerned with the potential for GB goods going to the Province and then entering the Republic notwithstanding any commitments that they will not do so.  This would be smuggling and smuggling is not dealt with by paperwork, but by detection and severe penalties when it is discovered. Smuggling is a matter for each country’s customs agency, in this case the Republic’s.  The Republic may well ask for goods destined for the Province and the Republic to be labelled differently which would make prosecution easier.  No doubt exporters from Great Britain would be glad to comply, if it avoided the current paperwork.    

We are left with how to ensure the Province’s exports to the Republic comply with EU regulations and directives. The starting point should be EU recognition of Mrs May’s legislation that swept all EU regulations into British law: “retained EU legislation” is “set out in sections 2 and 3 of the European Union (Withdrawal) Act 2018 (c. 16). Section 4 of the 2018 Act ensures that any remaining EU rights and obligations, including directly effective rights within EU treaties, continue to be recognised and available in domestic law after exit.” Northern Ireland legislation is therefore now compatible with EU regulations and all the attention given to that by the Protocol is redundant – along with the paperwork and bureaucracy. The EU’s interpretation of the legal situation is the problem, not the reality.  

Of course, one of the reasons given for Brexit was the UK’s freedom to change regulations in the future and the UK will not be bound by future EU directives and regulations.  The word “future” is only used six times in the Protocol, mostly to do with agricultural financial support and twice in terms of the general relationship: “The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship.” (Article 184) 

Article 13, however, gives the EU the right to propose that any new law of theirs that “falls within the scope of this Protocol” should also be adopted for Northern Ireland. If the Joint Committee fails to reach agreement, whether for or against, “within a reasonable time, the Union shall be entitled, after giving notice to the United Kingdom, to take appropriate remedial measures.” There is no reciprocal right for the UK. 

If a new EU law affects a product sector which is a major export category for Northern Ireland to the Republic, agri-food or machinery for example, Northern Ireland will have to comply with it for those exports. It should be free to adopt it for the Province’s internal use, as the Protocol envisages, but that should not prohibit goods conforming to UK regulations being sold within the Province as well.  Northern Ireland can be a member of both common markets at once. Likewise, if Westminster wishes to change or adopt a new regulation, it may, for the same pragmatic reasons exempt Northern Ireland which is, after all, a devolved nation. The existing Protocol does not mention this right but neither does it prohibit it. 

In short, if both parties intend really to cooperate, as distinct from pretending to, a new Protocol which meets all the objectives of the original but does not involve delays, wasteful paperwork and bureaucracy or an Irish Sea border, is perfectly possible. 

We now know from Irish diplomats that background talks are inching towards a revised agreement.  This has been confirmed, off the record, by a UK minister. The most useful progress appears to be a proposal from the EU for “a joint EU UK veterinary agreement which, officials say, could do away with up to 90% of the checks and controls on the Irish Sea.” On the other hand, the EU’s attitude remains high-handed: “EU diplomats say that if London continues to show it is implementing the protocol, then flexibility would be forthcoming.” In other words, comply and then we will consider being flexible. It is possible that a fresh joint agreement will be announced by early May. 

The lack of openness by the UK government is worrying. The Irish diplomats claim that the UK government proposals were delivered to Brussels on 31st March but we do not know if politicians in Northern Ireland would find them acceptable even in the unlikely event that Brussels did. If Dublin is fully involved in the negotiations but Belfast is not, that would be a grave error. Lewis and Frost could be getting us into another fine mess.