What’s the EU really trying to do with the Protocol?

Brussels isn’t living up to the commitments it made

I was at a political event in Winchmore Hill on cold evening in December 2017 when I received a late call from the then Chief Whip, Julian Smith, to brief me on the announcement Prime Minister May was making the following day in Brussels.

In the Joint Report on Brexit negotiations which she duly announced, Mrs May conceded that no physical infrastructure would be added to the Northern Ireland border with the south. Not only that, but any “related checks and controls” were also ruled out.

 Boris Johnson’s renegotiation could only ever be an exercise in damage limitation

This enabled the EU to claim that any kind of border compliance procedures or checks anywhere on the island of Ireland had been taken off the table; and they used this to rubbish the extensive work done by Prosperity UK and others, including Nobel Prize Winner, David Trimble, on how to deliver a north south border which is free flowing and invisible, but which also safeguards the integrity of the single market.

The EU have repeatedly claimed that their stance on the border was motivated by support for the Belfast Good Friday Agreement and the peace it underpins. But they used the issue to drive a hard bargain with Mrs May. The so-called Irish backstop to which this led caused the greatest ever Parliamentary defeat suffered by a Government and a year of Brexit crisis votes.

It was also a drag anchor for Boris as he embarked on renegotiating the thrice defeated May Withdrawal Agreement. That he secured changes at all was a significant achievement after the EU, and their cheerleaders in the Remain establishment in Britain, said this was completely impossible.

But the mistakes made by his predecessor meant that this renegotiation could only ever be an exercise in damage limitation, and very painful compromises were made on the Northern Ireland Protocol.

I strongly believe that the commitment of people in Northern Ireland to exclusively peaceful means for determining their future is rock solid. But the Protocol does have the potential to create serious political instability.

The commitment to peace is resolute, but recent years have demonstrated the fragility of the institutions created by the Belfast Agreement and the political relationships across parties which are essential for those institutions to function.

One sandwich or ready meal could require several certificates signed off by a vet

The concerns about unnecessary barriers to trade with Britain go beyond inconvenience and potential economic damage. The abolition of customs duties and the free movement of goods between the two islands is a fundamental part of the 1801 Articles of the Acts of Union between Britain and Ireland. The symbolic impact, for example, of the EU’s ban on import of British soil into Northern Ireland, even a few traces on a tractor, is significant.

Whilst the majority of trade is still flowing relatively smoothly between Northern Ireland and Great Britain we need urgent solutions to the immediate problems which have occurred, as well as a concerted effort to develop a workable long term replacement for the Protocol, as envisaged under Article 13(1) of Boris’s amended Withdrawal Agreement.

A key problem is subjecting food moved from Great Britain to NI to so-called Sanitary and Phyto-Sanitary (or “SPS”) procedures. For example, one sandwich or ready meal could require several certificates signed off by a vet; a single lorry load of food could require hundreds of certificates. 

Even now, before the expiry of grace periods, the Department of Agriculture in Stormont estimates that it is undertaking a staggering 20% of the total for SPS regulatory checks carried out right across the EU. Northern Ireland’s Chief Veterinary Officer has said that if flexibilities are not agreed by the EU, the number of food certificates required in the Northern Ireland could soon almost match the total processed in the entire EU.

Whilst useful, grace periods can, by definition, only provide a temporary fix. Ministers should be seeking permanent changes to how the Protocol is operated. There are a range of flexibilities which the EU could grant and still maintain the integrity of their single market and consistency with their legal order.

The EU’s approach to the Protocol is not consistent with its own treaty commitments

For example, goods sent to Northern Ireland, but not viewed at risk of entering the EU single market, are already largely exempt from customs formalities. The same principle should apply to SPS checks on food destined for the supermarket shelf in Northern Ireland, rather than onward transport to the south. If the EU refuse a full SPS exemption for “not at risk” food, at the very least, the compliance regime should be much lighter for such products and incorporated into the UK trusted trader scheme already operating to streamline customs compliance. That should include a fully digitised platform for issuing vet certificates.

There will be those who say securing these goals is impossible. But the successful outcome to the negotiations on the Trade and Cooperation Agreement with the EU demonstrates that the robust approach advocated by Lord Frost can deliver impressive results.

Inevitably, the new Brexit Minister’s decision to unilaterally extend current grace periods has caused indignation in Brussels. But arguably the EU’s approach to the Protocol is not consistent with its own treaty commitments.

The free trade agreement concluded on Christmas Eve obliges the EU to take a proportionate and risk based approach to border related controls. It is also a long established principle of international rules on trade, by which the EU is also bound, that SPS rules should be based on evidence and risk.

The EU has seemed determined to view Northern Ireland through a lens focused on the nationalist side of the community

As the UK has food standards which are every bit as good as the EU’s (arguably they are more rigorous than the EU’s in relation to animal welfare), it is entirely disproportionate to impose the full rigour of a one-size-fits-all SPS regime designed for places as diverse as Thailand and Peru, on a country which has provided safe, high quality, highly regulated food to the EU for decades. 

Ever since the 2016 referendum, the EU has seemed determined to view Northern Ireland through a lens focused on the nationalist side of the community. It has never given the weight to Unionist concerns which it should have done if its professed concerns about the Belfast Agreement were anything much more than cynical furtherance of its own negotiating interests.  

If the EU really does care about securing a stable and prosperous future for everyone on the island of Ireland, now is the time to adopt a much more pragmatic approach to the Protocol, lighten compliance obligations to reflect the very low level of risk that GB to NI trade actually poses for the single market, and engage seriously with UK negotiators on alternative arrangements to replace the Protocol altogether.

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