Five ways to scrap the protocol…

The UK has refused to engage with extensive proposals from the EU to introduce an “Express Lane” for goods intended only for consumption in N. Ireland, and to radically reduce the amount of paperwork associated with phytosanitary controls. The Joint EU UK committee to oversee the workings of the protocol hasn’t even met since last February.

Instead, the UK has gone for a “maximalist” position, passing legislation in the Commons to give Ministers the power to disapply large parts of an international Treaty, remove the oversight of the European Court of Justice (ECJ), and strip the N. Ireland Assembly of the power to vote on the continuance of the operation of the protocol on a regular basis.

The DUP, too, has maintained a maximalist position that the Protocol must be scrapped rather than merely operated in a more efficient way, as it is seen to create a “border down the Irish sea” and treat N. Ireland differently from the rest of the United Kingdom.

It has therefore declined to operate the institutions of the Good Friday Agreement by refusing to engage with the North-South institutions (despite a Belfast High Court finding that it is legally obliged to do so), elect a Speaker of the Assembly, or facilitate the formation of an Executive by nominating a Deputy First Minister.

All of this is despite the fact that the Protocol is an integral part of Boris Johnson’s “fantastic oven ready deal”, signed by the British government, ratified by the UK Parliament, and endorsed by the UK electorate at the subsequent general election, which gave Boris Johnson a stonking 80 seat majority based on his proposals to “get Brexit done”.

So how might the protocol indeed be scrapped? There are at least five options:

Firstly, the EU could continue to allow goods originating in, or transiting through, the UK to be shipped to N. Ireland, and from there to cross the open Irish border into Ireland and possibly the rest of the Single Market without being at least spot checked. To date, this has caused minimal real-world problems, as UK has only begun to consider how to diverge from EU standards and sign trade agreements with third-party governments allowing their exports to do so as well.

However, one of the main benefits of Brexit was supposed to be to allow the UK to access world markets for food and other products which did not meet EU standards, and which were cheaper than the EU’s relatively expensive goods produced under the Common Agricultural Policy or subjected to the EU’s extensive regulatory regime.  To this end, the UK government has announced a plan to scrap thousands of inherited EU regulations wholesale.

It will only take a few consignments of mislabelled non-EU compliant GMO, hormone-treated, or anti-biotic resistant beef to appear in the Single Market to create a crisis in UK EU relations, dent consumer confidence, and damage the “integrity of the Single Market” – something all EU leaders have pledged to defend, and indeed touted as their highest priority.

 

To prevent the possibility of this happening, the EU has already instigated several infringement proceedings against the UK in the ECJ for failing to implement the protocol, which could result in fines and other sanctions against the UK. Given the UK’s stated aversion to being subject to ECJ rulings, this can only lead to an escalating confrontation with the EU.

A second way the Protocol could be scrapped is for Ireland to agree to operate customs controls near the N. Ireland land border instead. As there are hundreds of minor road crossings through the 500km land border and there is a history of smuggling in the area, this would be considerably more difficult to operate than at a few ports in N. Ireland.

Many have argued that this would breach the Good Friday Agreement (GFA) as one of its main benefits was the dismantling of border posts and the promotion of an all-Ireland economy and greater north-south social interaction. All parties, north and south, and the two governments have therefore claimed to rule out this option.

A third way the Protocol could be scrapped is for the UK to revert to the earlier Theresa May proposal, whereby the whole of the UK would return to the Single Market. This would mean there would be no need for a regulatory border down the Irish sea. However, the UK government has set its face against any such proposal, and even Labour Leader, Keir Starmer, has ruled out doing so if Labour return to government.

A fourth way the Protocol could be scrapped is effectively what the UK is currently doing – giving Ministers the power to dis-apply many of its provisions through domestic legislation.

The EU has condemned this as a flagrant breach of the Withdrawal Treaty, and EU Vice President Maroš Šefčovič has hinted strongly that this could lead to the EU giving 12 months’ notice of termination of the Trade and Cooperation Agreement, as it was only negotiated based on the Withdrawal Treaty having been agreed.

This would give hard-line Brexit supporters the “no deal Brexit” many of them advocated for at the time. However, this was on the assumption that World Trade Organisation (WTO) rules would then apply. The EU is unlikely to regard the UK as a “good faith” trading partner in those circumstances and is almost certainly going to apply trade sanctions to the UK if it fails to abide by ECJ rulings.

Trade wars have a way of becoming embedded and long-lasting, as the Irish experience of the 1932-38 Anglo-Irish trade war or “Economic war” demonstrates. They can also be very damaging to both parties. With 42% of UK exports going to the EU (and only 13% of EU exports going to the UK), the greater damage is likely to be suffered by the UK economy, which is 7 times smaller than the EU, and already reeling from the effects of a post Brexit economic crisis.

However, there is also a fifth way the Protocol could be scrapped. A Border Poll called by the Secretary of State for N. Ireland under the terms of the GFA would, if passed, re-unite Ireland, and return N. Ireland to be a fully fledged member of the EU. The Withdrawal Treaty and its controversial Protocol would then no longer apply.

With a history of overplaying their hand, the DUP need to be careful what they wish for.  With all the other options having been ruled out or becoming increasingly expensive, this may become an increasingly attractive option to many in Westminster.

Although a majority for a United Ireland is currently unlikely, the failure of the institutions of the Good Friday Agreement to operate effectively has led many moderates in N. Ireland to re-consider a more radical alternative to the status quo.

Throw in a severe trade war-induced recession in the UK, dramatic cuts in public expenditure and the Barnett formula linked subvention to N. Ireland, and even some unionists might be forced to reconsider their attitude to reunification.

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