In the nearly six years since the UK public voted to leave the EU, negotiators have yet to come up with a plan that meets the needs of both sides with regards to Northern Ireland. Tony Connelly outlines the negotiation issues, the problem with the NI Protocol and what could change in the future.
As 2022 gets underway, it is striking to realise that it is nearly six years since the Brexit referendum and a full year since Britain’s formal departure from the European Union (EU). Despite the desires among fervent Brexiteers for a clean break, the past year has taught us that Britain and the EU will remain entangled in each other’s affairs for some time to come.
The problem of the NI Protocol
The Northern Ireland Protocol remains at the heart of that entanglement. While European capitals are growing weary of the perpetual antagonism over Britain’s departure – including the Irish question – the incoming French Presidency of the EU has made it clear the first step in normalising a post-Brexit relationship is a resolution to the Protocol standoff.
The EU’s support for Ireland’s position remains striking. Irish diplomats have always feared that the Irish border question would end up as the “stone in the shoe” – a minor, regional irritation that should not stand in the way of a broader EU–UK relationship. So far, that has not come to pass despite some reliably-sourced occasions where the UK has appealed bilaterally to capitals for a more pro-British understanding of the Protocol. Dublin, indeed, remains alert to the UK’s efforts to place the problems of the Protocol in a broader geopolitical context.
In her first detailed remarks on the subject, the UK’s new Brexit negotiator, Liz Truss, specifically linked the Protocol negotiations to conflicts elsewhere. “I believe that the United Kingdom and the EU, as believers in freedom and democracy, are capable of working out a solution which delivers for the people of Northern Ireland,” the Foreign Secretary wrote in the Sunday Telegraph on 8 January. “This will enable us to focus our energies on major external threats – such as Russia’s aggressive activity towards Ukraine – and building our economies following this pandemic.”
The EU would undoubtedly like to deepen its strategic relationship with the UK. The UK resisted any attempt to include a treaty-based relationship on foreign and security policy in the Trade and Cooperation Agreement (TCA). However, Brussels would still like one to develop.
“There is a common-sense willingness and political will [among member states] to engage with the UK…and having the UK as a partner,” says one EU diplomat. “It’s simply been blocked by the noise of the TCA, the Protocol, and the fact that the Brits say they don’t want to have a formal agreement. I’m not hearing people saying, ‘over our dead bodies’, ‘the Brits have nothing to offer’, ‘Brexit means Brexit’. We were never hearing that.”
For now, no such relationship is maturing. The EU invests a lot of energy in its economic and security relationship with the United States, but there is no outline of what a long-term partnership could look like with the UK. London has refused to articulate what it wants, and the EU lacks the tools (the “scaffolding”, as one diplomat puts it) to construct one.
What is the economic damage of Brexit?
The COVID-19 pandemic has obscured the true economic impact of Brexit, and that means it is hard to predict.
1 January 2022 saw the full introduction of customs checks and controls on EU goods entering the UK, meaning a more realistic picture of trade friction will emerge, but it is not fully apparent yet.
“As the UK starts phasing out all of its derogations and starts actually implementing checks, we will see how things bite and the impact that will have on trade flows,” says one EU official. “As the pandemic starts to lift and people start to travel again, that will be the moment that the penny really drops: just what is the damage here?”
The UK has exempted goods from the Republic of Ireland from its new checking regime. This is good news and bad news: while it keeps trade – especially the agri-food trade – flowing, it has caused frustration for many companies that have invested heavily in preparing systems and training staff.
Many Irish companies have been looking beyond the UK, not least because of the uncertainty about London’s intentions. Irish food, drink and horticultural exports to other markets have increased. Although exports to the UK are still significant (Bord Bia recently reported sales worth €4.4 billion or 33% of total export value), there was a 9% decline in volume between January to October 2021 compared to the previous period in 2020. This was partly due to stockpiling in late 2020; however, it also suggests that food exports to the UK will suffer. The big concern is the requirement for UK export health certificates on Irish beef, cheese, lamb and other valuable commodities, due from 1 July.
Irish companies importing goods from the UK have adapted after a challenging first quarter in 2021. “As companies got used to the new controls, particularly food companies, where they’re having to get their heads around [EU] health cert requirements, month-on-month it’s probably just got better and better,” says Carol Lynch, a partner in BDO Customs and International Trade Services department.
The major development of 2021 was undoubtedly the decline of the UK landbridge as the preferred route into Europe (and vice versa) as direct, two-way sea crossings to Europe increased from a pre-Brexit level of 12 to 44 crossings last year.
This growth reflects the real-world adaptation by companies. What is harder to predict is Brexit’s overall impact on the island of Ireland economy. The deadlock of the Northern Ireland Protocol means that exporters and importers, and foreign direct investment remain in a holding pattern while the politics remain unresolved.
As is so often the case, Ireland is hostage to the internal dynamics of the Conservative Party – the same dynamics which gave rise to the referendum in the first place.
May UK elections and the Protocol
Liz Truss has introduced a more cordial style to the relationship with the European Commission, in contrast to the antagonistic approach favoured by her predecessor Lord Frost. The EU delegation warmly appreciated her welcoming of the EU’s chief negotiator Maros Sefcovic to Chevening House in Kent for their first face-to-face meeting. Still, once the pleasantries were out of the way, both sides retreated to well-worn positions on the Protocol.
The fact that Truss is a front-runner in any contest to succeed Boris Johnson as Conservative Party leader will undoubtedly restrict her room for manoeuvre. Suppose there is to be a leadership challenge after the May local elections. In that case, Truss will need the support of the hard Brexit European Research Group (ERG) to get into the second round, so she is unlikely to sign up to a deal on the Protocol which does not meet its sovereignty yardstick.
For his part, Boris Johnson is launching a raft of right-wing initiatives, from reducing the number of migrant boats crossing the English Channel to freezing the BBC licence fee, to expressly appeal to the kind of Tory backbenchers who have been the most unyielding on the Protocol. This does not bode well for an agreement by the end of February, which the Irish government had recommended to avoid the issue colliding with the Northern Ireland Assembly elections scheduled for May.
The UK government, leadership contest or not, will also be determined to ensure that the DUP maximises its vote. Will London play hardball and refuse to compromise on its maximalist Protocol position in order to give the DUP a rallying point? Or, will Truss decide that a quick deal on the Protocol can be dressed up as a win for Jeffrey Donaldson (the Foreign Secretary has not shied away from championing post-Brexit agreements even where the detail does not quite match the hyperbole)?
Moving negotiations forward
So far, the Protocol negotiations have remained stuck. The UK believes the EU October proposals to ease the burden of the Protocol don’t go nearly far enough, and the EU says they can’t go any further, and certainly not as far as the UK Command Paper.
The EU has dealt with the issue of how to ensure the free flow of medicines (both generic and innovative) to Northern Ireland by reforming its own legislation, so the focus now is on reducing customs and agri-food controls.
London believes there should be no checks or controls on British goods clearly destined only for Northern Ireland end-users. In other words, it should be as easy to move goods from Birmingham to Belfast as it is from Cardiff to Glasgow.
The UK does accept there should be checks on goods heading for the South via Northern Irish ports (in that sense, London has acknowledged the need for an Irish Sea border). Differentiating the two goods streams should be up to commercial British operators through a trusted trader scheme based on enhanced product line surveillance.
The EU more or less accepts this approach in principle, to the extent that Brussels would permit green lanes at Northern Ireland’s ports for such consignments. However, working out the safeguards and reassurances is proving very difficult. Brussels insists a discretionary level of checks on British goods must still happen (even if traders say the goods are staying in Northern Ireland) because a risk-based approach requires it.
There must also be strict labelling of individual items to indicate that they can only be consumed in Northern Ireland. In some instances, goods would have to be manufactured according to EU standards.
While each consignment would have a smaller number of data lines under the Commission’s proposals, they would be backed up by detailed information – pre-notified electronically – to ensure traceability.
Checks would, therefore, be reduced but not eliminated; the UK wants checks eliminated (at least for NI-only trade flows).
The retail industry in Northern Ireland insists that for smaller and medium-sized operators involved in Irish Sea trade, complying with all three requirements – labelling, conformity, pre-notification – would be too expensive or would not be worth the hassle.
Frost’s insistence that the European Court of Justice no longer has a role on the Protocol did not lend itself to an atmosphere in which a deal looked doable. The question is whether or not Liz Truss can break the deadlock.
The Irish Government believes an improved atmosphere cannot but help and that a deal based on the Commission’s October proposals and packaged as a victory by Truss might be possible. But the margins will be tight.
“The Commission isn’t an independent actor in this,” says one EU diplomat. “The package that’s on the table was agreed with the 27 member states, and it was agreed with considerable difficulty inside the European Commission. The member states somewhat reluctantly signed off on it, and it was made clear that we were at the limit of legal and political acceptability.
“The Commission has come a tremendously long way. And yet, the British are right in saying that last year the Commission was ruling out a lot of this stuff. So, with the right packaging and the right presentation, Truss could present it as a big victory.”
That suggests a lot of careful diplomacy and expectation management. Yet, the process, already under time pressure, is playing out amid the helter-skelter turmoil of Westminster. London has not abandoned the threat of triggering Article 16, although with each new survey showing Northern Ireland businesses and manufacturers acclimatising to the Protocol (or even thriving), it is a weapon that looks riskier and riskier.
By January 2022, the Central Statistics Office confirmed what many had predicted: exports from Northern Ireland into the South had surged by 64% in the first 11 months of 2021, while exports in the other direction rose by 48%.
The EU’s instinct at previous upheavals in the Brexit process has been to hold firm and let the Westminster histrionics play themselves out. But politics in Northern Ireland do not enjoy the same luxury.
Tony Connelly is the Europe Editor at RTÉ.
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