The tempo of Protocol politics is quickening. Fresh from calling into the Arcadia deli on the Lisburn road ( a favourite haunt of SDLP, Alliance and Green voters no doubt as it once was of mine ), Brexit minster Lord Frost has issued what sounds like an ultimatum to the EU.
“If the Protocol operates so as to damage the political, social, or economic fabric of life in Northern Ireland, then that situation cannot be sustained for long”.
The new DUP leader Edwin Poots is reported to have set a deadline of 12 July for a result – a choice which will mystify nobody. Behind the noise the UK Government has been a little more constructive. They have last announced a road map for a solution within the terms of the protocol, leaked to the BBC, as reported by Adam Fleming chief political correspondent :
The UK is proposing to phase in new Irish Sea border checks on food products in four stages from October. It suggested that phase one in October will cover fresh meat products and phase two at the end of January 2022 will cover dairy products, plants and wine.
Phases three and four would cover fruit and vegetable marketing standards, pet food, organics and composite products.
No dates are given for phases three and four with the document saying a full timeline “requires additional clarity on infrastructure and staffing” as well progress on integrating the UK and EU certification systems.
It is not yet clear if the EU would consider these timelines to be reasonable.
Some details are included on the UK’s Digital Assistance Scheme (DAS) which is intended to digitise the agri-food certification and verification process.
It said first users should be registered next month with final testing in August, roll out in October and integration with the EU system in January.
Some parts of the roadmap are vague.
For example, no target dates are suggested for the construction of permanent border control posts at Northern Ireland’s ports despite these facilities having planning permission and funding.
However, the document added the government will set out “a detailed delivery plan” for permanent facilities.
In other areas, there is a greater commitment to giving dates.
The UK, for instance, said it proposes to issue guidance by the end of this month on the long-term arrangements for business-to-consumer parcel deliveries from Great Britain to Northern Ireland.
The gaps are left open for the EU to help them fill. The implication seem to be, no agreement on a phased certification plan greatly simplifying bureaucracy, no customs posts at the four ports. That should please Edwin Poots. The UK government and the DUP in synch!
The EU have issued pained press comment: We need solutions not soundbites. Recent comments in the press were not helpful. But they pledge to keep plodding on. John Campbell BBCNI’s economics editor asks the difficult questions.
This roadmap also shows the potential trouble ahead. If the UK’s scheme for sending supermarket goods from Great Britain to Northern Ireland is going to be phased in during 2021 and 2022 (and 2023?) then the UK will probably have to ask the EU for another extension to the grace period before European laws will be fully respected, which won’t go down well in Brussels.
Then the EU also needs to agree that British-regulated medicines can be sold in Northern Ireland.
And when exactly will the Northern Ireland Executive start building the bricks and mortar customs facilities that the UK has promised the EU but which are so offensive to the DUP’s newly-elected leader? The dates are still a secret.
And a moment of truth seems to be brewing, with the Brexit Minister Lord Frost suggesting that in June or July the UK will decide whether the protocol can be made to work in the long term.
From the unfortunate attempt to put a hard border on the island of Ireland for vaccine exports, to the threats to cut off electricity to Jersey or to retaliate against our financial services, we haven’t always heard much enthusiasm to make things work.
The fundamental aims behind this new Protocol are worthy ones – to protect the peace process and the Belfast (Good Friday) Agreement, to support Northern Ireland’s prosperity by keeping borders and trade open, and to minimise disruption to everyday life in Northern Ireland.
It is perfectly possible to deliver those aims while at the same time protecting the EU’s single market – but not in the way the Protocol is currently operating.
I saw this for myself this week when visiting Arcadia, a deli which has been an institution in Belfast for the best part of a century.
Its shoppers have always been able to choose from a variety of goods, from artisan jams, to pork pies, to Norfolk sausages, from all over the UK.
They find it too difficult and too time-consuming to deal with the paperwork. This means less choice for Northern Ireland consumers than in the rest of the UK.
All this paperwork and checks – to deal with a risk that does not exist.
The EU takes a very purist view of all this. It seems to want to treat goods moving to Northern Ireland from the rest of the UK in the same way as the arrival of a vast Chinese container ship at Rotterdam. We did not anticipate this when we agreed the Protocol and it makes no sense.
I totally understand why this makes unionism in Northern Ireland anxious and why consent for the Protocol is now fragile. Protests have been occurring and political stability is at risk.
Our overriding aim has always been to protect the Belfast (Good Friday) Agreement. If the Protocol is not protecting it, it is not working.
The EU has a responsibility here. The Protocol is a shared UK-EU agreement. The EU needs, rapidly, to find a new approach and new solutions.
Northern Ireland is fully part of our UK union. We have seen this in action with the vaccine rollout and the furlough scheme.
If the Protocol operates so as to damage the political, social, or economic fabric of life in Northern Ireland, then that situation cannot be sustained for long.
We are responsible for protecting the peace and prosperity of everyone in Northern Ireland and we will continue to consider all our options for doing so.
So my message to our friends in Europe is: stop the point-scoring and work with us. Seize the moment, help find a new approach to Northern Ireland, and then we can build a new relationship for the future.
The more constructive terms of the road map has the advantage of letting everyone see what practical steps are proposed .
Edwin Poots may be shrewd enough to realise they will be popular well beyond the ranks of the DUP or unionism as a whole. He would do well to wait and see what Frost and the EU come up with by the summer.
“For me, this is not a unionist issue. This is a Northern Ireland issue. At the end of the grace period we are looking at 15,000 checks being applied on goods coming into Northern Ireland from Great Britain.
“On supermarket goods and the food that ends up in your corner shop, that is going to affect every consumer in Northern Ireland.
“Ninety-eight per cent of our drugs and medical devices come from Great Britain. Those are going to be subject to these checks after the scrutiny period and problems with getting things in, including cancer drugs.
“It is just entirely unacceptable that our health service could be hit with additional cost, and indeed with maybe not having certain material that is needed as a consequence of it.
“We need to find a solution which overcomes all of this. We need the EU to recognise this protocol is not fit for purpose. It isn’t working and it cannot work and therefore we have to go back to the drawing board.
“We have more checks taking place between Great Britain and Northern Ireland than all of the eastern border of the EU.
“Goods that are staying in the UK in my view should not have checks. That is my ultimate goal.”
But what if the UK terms are rejected? A mainly Ulster Unionist legal challenge to the Protocol is under way, led in court by the former very individualist and very smart Attorney General John Larkin.
Launching the challenge on Friday, John Larkin QC said the judge, Mr Justice Colton, would be asked to take a view on the legality of the protocol.
He told the court: “It’s not about the decision way back when to make the protocol, it is asking Your Lordship to accept that the protocol is unlawful on a number of grounds and therefore it’s unlawful to try and give effect to it.”
The regulations are incompatible with the Act of Union in providing for the continuation of the protocol, which is itself incompatible with the Union.” He also argued that the Protocol was rotten to the core and incompatible with EU law.
Mr Larkin then referred to an affidavit from Jim Allister, one of a number of unionist politicians who has brought the legal challenge.
He said: “He makes the point the Act of Union cannot be disregarded, bypassed or misapplied. “The UK created by these Acts, he says, and the place of Northern Ireland is fundamentally changed.”
“Northern Ireland is subject to taxation without representation.
“It can be likened to the position of the Vichy regime which was relied on to do the bidding of the occupiers; the occupiers were free to inspect or deny things, but when push came to shove the occupiers gave an instruction and the Vichy authorities would quickly fall into line.”
Larkin has since argued that the protocol is ‘rotten to the core,’ focusing on TEU Art 10 & Art 50 (par 3) being incompatible with EU law.
Poots is planning DUP catchup with their own legal challenge. But the legal route has the whiff of ultimate failure about it or at best a long wrangle that would fail reduce the rising heat of politics.
Will Poots introduce the Protocol dispute into the election of the new FM dFM team? Let’s go down a dark corridor of speculation.
Say the DUP refuse to sanction north-south ministerial meetings and Sinn Fein insist on the prompt passage of an Irish Language Act. What do you think Murphy? Pulling the Assembly plug is at best absurdly premature. The political risk to the DUP of crashing the Assembly would be massive.
Raise the spectre of more loyalist violence? Not implausible if they keep ramping up the temperature. Would the EU be impressed? They just might. Johnson and Frost won’t be above raising the threat of loyalist unrest, just as the Irish government counted on the spectre of dissident republican action against a so-called hard border.
Poots’ best option would be to sit on his hands and give wary support to Frost who will be only too delighted to accept the pressure. He can argue that Frost has identified with deep concerns over the effects of the protocol in a way Johnson never did when he betrayed them to set it up. The UK is in a very different position now, thanks to their slap dash, last minute negotiating style to try to big up their position to equal terms with the EU and leave cleaning up messes to later. Frost’s brinkmanship may be rhetorical but it is still a high risk gamble for the UK . For if protocol strategy fails it plunges the UK and the EU into a whole new crisis. Both sides have every reason to agree on major mitigation. The DUP- Conservative relationship may be an uneasy marriage of convenience but there’s life in it yet.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London