Northern Ireland

Northern Ireland Protocol legal, political battle begins

The United Kingdom has plunged its relationship with the EU into a fresh state of crisis with the publication of a proposal to unilaterally override key trade provisions of the Northern Ireland protocol.

New draft legislation presented to the UK parliament on Monday (13 June) would permanently remove the current bureaucratic barriers to the movement of goods between Great Britain and Northern Ireland, by disapplying specific aspects of the protocol in UK law.

The much-anticipated announcement by UK foreign secretary Liz Truss met with an angry reaction from European Commission vice-president Maroŝ Šefčovič.

The vice-president said the Commission would take action as early as this week to resume the EU’s infringement procedure at the European Court of Justice, which was launched in response to the UK’s unilateral extension in March 2021 of post-Brexit ‘grace periods’.

That legal action was paused in September last year in the hope that it would create space for a negotiated settlement in the long-running discussions over the protocol.

The Commission will also consider launching new infringement procedures “that protect the EU Single Market from the risks that the violation of the Protocol creates for EU businesses and for the health and safety of EU citizens,” Šefčovič said on Monday.

The UK government insists that its move is lawful, despite a widespread perception that the UK is infringing international law by unilaterally abandoning key parts of the protocol.

Presenting the proposed solution to parliament, Truss claimed that the plan would “meet both our and the EU’s original objectives for the Protocol”, addressing frictions in GB-NI trade, while also protecting the EU single market.

Truss defended the decision to take unilateral action by claiming that the EU was constitutionally unable to show the flexibility the UK desired.

“The challenge is that this solution requires a change in the Protocol itself, as its current drafting prevents it from being implemented, but the EU’s mandate does not allow the Protocol to be changed,” she told MPs.

‘Red’ and ‘green’ channels for intra UK goods movements

The UK’s proposal has four key elements – one relating specifically to GB-NI trade, and three more relating to wider regulatory and governance questions.

The proposal would create a so-called ‘green’ channel which would exempt trusted traders, such as supermarkets, from any of the border procedures which the protocol currently requires for GB-NI trade.

Under the terms of the protocol, which the UK co-signed with the EU as part of the EU-UK Withdrawal Agreement in 2019, Northern Ireland is effectively part of the EU single market, and goods moving into Northern Ireland from Great Britain are hence deemed to be “potentially at risk” of being moved into the wider EU market.

But this state of affairs continues to be opposed by the UK, which points to a drop-off in GB-NI trade volumes since the protocol came into effect at the start of 2021, and a big jump in trade between Ireland and Northern Ireland.

Under the new proposal, goods not destined for consumption in Northern Ireland, or which are not imported by a ‘trusted trader’, would go through a ‘red’ channel and be subject to full EU border checks.

Further offers on flexibility

The Commission proposed a similar, albeit less far-reaching, solution last October, but this was dismissed by the UK as inadequate.

However, Šefčovič said on Monday that the Commission would “soon present in greater details our model for the flexible implementation of the Protocol, based on durable solutions within the Protocol”.

This creates the prospect of a resumption of negotiations on a bilateral solution to the border issues involved with GB-NI trade, despite the precarious political situation.

‘Dual regulatory regime’ proposal

A more contentious proposal by the UK is the plan to establish a new “dual regulatory” model to allow producers in Northern Ireland to choose between UK or EU rules.

“Goods can be placed on the market in NI if they meet either UK rules, EU rules, or both,” said a UK government explainer.

This would simplify the regulatory environment at the most basic level, although Northern Irish businesses have already pointed out that their current unfettered access to the EU market may be jeopardised if the current requirement for Northern Ireland’s regulatory environment to be aligned with that of the EU were to be relaxed.

Other elements of the proposal, which will be equally challenging for the EU to accept, is to remove Northern Ireland for the scope of EU state aid rules and VAT provisions, and also removing the role of the EU’s Court of Justice in dispute settlement relating to Northern Ireland.

Long UK parliamentary battles ahead

The UK’s proposals will not come into effect immediately.

They will need to be approved under the normal regulatory route by both houses of parliament. This will be a long road, with fierce internal opposition expected in the House of Lords in particular – but also from a group of Boris Johnson’s own Conservative MPs in the House of Commons, who have already voiced their opposition to what they see as a contravention of international law.

The plans are thus likely to be debated in the background while the UK and EU see if there is scope to progress the negotiated settlement which both sides say they would prefer to see.


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