Roderick Crawford edited Parliamentary Brief 1992-2012 and currently works in conflict resolution. He is director of If You Are Safe I Am Safe.
Though the UK agreed the Northern Ireland Protocol it did not design it. As the party responsible for its implementation — as well as the good governance of Northern Ireland — it has every right and obligation to use safeguards to make sure that the protocol achieves its stated aims, as set out in Article 1 and the extensive preamble of the protocol and to argue for the changes that will make it work.
The Government has been accused of breaking international law by not implementing the Protocol in full, whereas in fact it is implementing the Protocol in line with its stated aims and its own wider obligations, it is just that this requires — indeed triggers — the use of safeguards.
The EU, on the other hand, wants the Protocol fully implemented first, and only then will it discuss any changes that are needed. However, full implementation would cause considerable disruption to the everyday lives of the people of Northern Ireland, and cause further social and political upheaval that no responsible government can be expected to allow.
The UK has always been clear that it would prioritise the upholding of the Belfast Agreement above the Protocol – an objective the protocol arguably supports. It does so at considerable cost diplomatically but with no selfish gain in mind. It is admirable and right to do so.
The EU – Commission and member states – see things differently. There may be a large element of the dialogue of the deaf about this, but there is more to it than that. Take the Commission’s proposal that the UK enter into a temporary Swiss-style SPS agreement with the EU, promoted by Maros Sefcovic. He argues this would deal with 80 per cent of the problems being faced on GB-NI trade, and that this agreement could be suspended if the UK needed to do so in order, for instance, to conclude trade deals with others.
However, if such an SPS agreement made the Protocol work effectively, how could we remove it? There could be no US-UK trade agreement built on this formula. It does not take much thought to realise that this approach would achieve EU aims of tying the UK to the EU’s regulatory orbit, and hamper the future of an independent UK trade policy, and thus much of the rationale for the type of Brexit that has been achieved. It is not a solution to the better working of the Northern Ireland Protocol: it is a trap, and a rather obvious one at that.
Rather than look outside the Protocol, we should look within it to see if we can re-engineer the text to better accomplish its aims. There is an article in the Protocol that could provide a considerable contribution to a solution. It would contribute not only to an easing of the trading difficulties but also of the social and political ones. It could reset the mood in Northern Ireland. And because it is in the Protocol, the re-engineering can be argued to be a technical fix, not a renegotiation.
The 900 words of Article 5 of the Protocol makes up a considerable amount of the articles 5-10 that deal with trade related issues. This article provides for special treatment for goods not at risk of entering the Single Market; specifically, it states that customs duties will only apply if goods are deemed at risk of entering it.
Because the Trade and Co-operation Agreement has created customs free trade in goods between the UK and EU, the easements that this article would have provided are redundant. The 35 words of Clause 4 of this article apply the regulations of the Single Market (as set out in annex 2) to all goods, regardless of whether those goods are at risk of entering the market or not. Article 5 therefore plays no part in making the Protocol work effectively and acceptably.
Given that the Commission accepts that there are goods not at risk of entering the Single Market — goods that the Joint Committee were obliged to identify by the end of December 2019 — why should such goods have to comply with EU regulations at all?
If clause 4 of article 5 was amended so that EU regulations were not applied for goods not at risk of entering the Single Market (or in the case of processing of goods, not applied at the discretion of the Joint Committee) then the Protocol would have much of the flexibility it needs to work to the satisfaction of all parties – bar those elements playing silly games. This would, for instance, allow the retail sector to work without hindrance from the Protocol – and after all, unlike manufacturing, the Protocol offers it no upside).
We don’t need a new Protocol, though we might want one: we need it re-engineered. The problem with describing the P as “international law” is that you are either obeying the law or breaking it. In reality the Protocol is as much policy as law. It attempts to address a unique situation; it has never been done before; it was not road-tested and those for whom it was applied were only partly and imperfectly consulted.
The UK wanted to await the results of the EU-UK future relationship before finalising the framework for Northern Ireland; had we waited it is hard to see how Article 5 would have been worded as it is in the current Protocol. The idea that the Protocol would or could work without re-engineering along the way was unrealistic in the extreme and surely arrogant too. We are living with the consequences.
The Commission has claimed that there is no alternative to the Protocol, that it cannot be amended and that any failure to implement in full is a breach of the UK’s international obligations. None of this is the case. If we cannot sort out the design faults in the Protocol, then the UK will have to use Article 16 safeguards to ensure that Northern Ireland is protected from the serious economic and political consequences of the protocol’s failings; that is what they are there for.
This would not be ideal, but the Government has to have the power as well as the responsibility to govern properly in Northern Ireland. The publication in this last week of Northern Ireland Life and Times annual survey, the most reliable survey of public opinion there, shows only 26 per cent supporting a united Ireland: 55 per cent supporting the continuance of the Union. This reaffirms the necessity of ensuring the long-term stability of a workable Protocol, and the moral and legal authority the UK brings to the table as it works with the EU to achieve this.