This paper – from an organisation committed to constructive relations between the EU and the UK’s Conservative government – presents a solution to make the Northern Ireland Protocol work sustainably for the long term with minimal impact on the people of Northern Ireland.
The regulatory border between Great Britain (GB) and Northern Ireland (NI) is having a severe impact on people and businesses in Northern Ireland. This is set to worsen when important grace periods expire. Unionists see the introduction of regulatory barriers between GB and NI as undermining the position of Northern Ireland within the Union and breaching the principle central to the Belfast Agreement / Good Friday Agreement (BA / GFA) that there should be no change in the constitutional status of Northern Ireland without cross-community consent. Within Northern Ireland, divisions over the Protocol largely reflect sectarian divisions, making it even more difficult to build a genuinely shared society.
The Protocol on Ireland / Northern Ireland – known as the Northern Ireland Protocol (NIP) or the Protocol – is necessary to prevent the seriously destabilising consequences of a land border between Northern Ireland and the Republic of Ireland and to protect the EU’s Single Market and its consumers. Checks and other non-tariff barriers (NTBs) – necessitated by the UK’s decision to remove Great Britain from the Single Market – apply to goods crossing the sea from Great Britain to Northern Ireland, just as they do on direct shipments crossing the sea from Great Britain to the Republic of Ireland, so that they do not apply on the land border.
However, while all goods entering Northern Ireland must comply with the Single Market standards applied there, for most this is a given: regulatory standards in Great Britain are still predominantly Single Market standards. Furthermore, most such goods will not move on to the Republic. One can hence argue that the impact is disproportionate to the risk to the EU.
At the time the Protocol was drafted, this comprehensive approach was appropriate. A system to distinguish goods staying in Northern Ireland from those liable to move to the Republic was unlikely to come to fruition by the end of transition. It needs time and trust. Unfortunately, the current atmosphere is characterised by a lack of trust on both sides, pushing pragmatic solutions out of reach.
The UK Government needs to recognise the need for the Protocol and commit to its success to build the trust necessary for a Northern Ireland-specific solution. To gain cross-community support for the Protocol in accordance with the BA / GFA, the EU must likewise show that it understands the concerns of Unionists and re-iterate its commitment to the clauses in the Protocol that safeguard Northern Ireland’s place in the UK and its internal market and that call for the application of the Protocol to have minimal impact on everyday life in Northern Ireland.
Our solution focuses on the agrifood sector, in which sanitary and phytosanitary (SPS) checks create, or threaten to create, most of the friction. We call for a temporary UK-wide solution, with a Northern Ireland-specific solution developed in the interim.
Our solution complies with all sides’ red lines. It does not require renegotiation of the Protocol, but it does end the jurisprudence of the Court of Justice of the European Union (CJEU): it calls for a standalone SPS treaty that is consistent with the Protocol but separate to it. It maintains the UK’s autonomy with respect to Great Britain’s regulations but eases the burden where those regulations are aligned with those of the Single Market. It does not require the EU to blindly trust Great Britain’s standards or to grant its producers access to the Single Market with a lower level of NTBs than faced by other countries with a similar level of regulatory alignment.
In 2017/18, when arguing for Northern Ireland's border with the Republic of Ireland to be dealt with in the Withdrawal Agreement rather than in the Future Relationship negotiations as the UK’s other EU borders were, the EU cited two principles to justify treating Northern Ireland as a special case. The first principle was necessity: peace in Northern Ireland was a vital interest of the EU; it was therefore necessary to treat it differently. The second was proportionality: cross-border trade on the island of Ireland was so insignificant in the context of UK/EU trade, let alone the entirety of the EU Single Market, that it was proportionate to make Northern Ireland a special case. Those two principles surely apply with equal force today.