Lord Frost has told the Conservative Party conference that the ‘long bad dream’ of our EU membership is over, as he warned the EU that unless they bow to his demands to renegotiate the Northern Ireland protocol, he will trigger article 16. This allows either side to take appropriate safeguard measures if the protocol leads to serious economic, societal or environmental difficulties – ones that are liable to persist, or to lead to a diversion of trade.
The lines he quotes at the end, by the way, are from an obscure Kipling poem (Dawnwind) which Margaret Thatcher used to mark the fall of the communist regime in Russia. This will not help his case in Brussels.
Speaking in Manchester, Lord Frost has said the UK “cannot wait forever” for a response from the EU to its July command paper proposals to change the protocol. Such a threat however is unlikely to be any more successful now than no deal threats were in 2019. The EU have flatly refused any renegotiation.
Sky News report that the former chief negotiator acknowledged the UK “willingly entered into the protocol”. But he claimed in his speech that “the arrangements have begun to come apart even more quickly than we feared”.
Having negotiated and signed up to the arrangement, the UK now wants to change it. But the government is being slightly coy. Not only did they negotiate and willingly enter in to the agreement – they were responsible for proposing it in the first place.
What ‘safeguarding measures’ are permitted?
Article 16 is not a silver bullet. The aggrieved side is only allowed to take measures that are “restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol”.
Annex 7 outlines that there needs to be a period of consultation to seek a solution and sides may not take action for one month, and only under “exceptional circumstances requiring immediate action” can one side act unilaterally.
The other side under those circumstances is permitted to take “proportionate rebalancing measures as are strictly necessary to remedy the imbalance”.
So, the tougher the UK acts, the tougher the EU can react.
The Northern Ireland protocol was Johnson’s idea
On 2 October 2019, with time running out before his own self-imposed deadline expired and with the EU showing no sign of any movement or indeed any concern about threats from the prime minister to leave without a deal, Johnson wrote to commission president Jean Claude Juncker (copy to EU leaders and Michel Barnier) with a proposal.
His letter talks of the “creation of an all-island regulatory zone on the island of Ireland, covering all goods including agrifood. For as long as it exists, this zone would eliminate all regulatory checks for trade in goods between Northern Ireland and Ireland by ensuring that goods regulations in Northern Ireland are the same as those in the rest of the EU” [our emphasis].
Helpfully, he even attaches an ‘explanatory note’ to flesh out his ideas for the benefit of EU leaders and Barnier’s team.
In the letter, Johnson says he is proposing that “all customs processes needed to ensure compliance with the UK and EU customs regimes should take place on a decentralised basis, with paperwork conducted electronically as goods move between [the UK and Ireland], and with the very small number of physical checks needed conducted at traders’ premises or other points on the supply chain.”
He went on to suggest each side put in place “specific, workable improvements and simplifications to existing customs rules between now and the end of the transition period” and that both parties commit to never “conduct checks at the [land] border in future.”
Johnson’s explanatory note is even clearer
The explanatory note says (point 7) that at the end of the transition period Northern Ireland would “align with EU SPS rules, including those relating to the placing on the market of agri-food goods. Agri-food goods entering Northern Ireland from Great Britain would do so via a Border Inspection Post or Designated Point of Entry as required by EU law, building on the provisions that already exist to support the SEU [Single Epidemiological Unit]. They would be subject to identity and documentary checks and physical examination by UK authorities as required by the relevant EU rules” [again our emphasis].
The note also says Northern Ireland will align with “all relevant EU rules relating to the placing on the market of manufactured goods” with “regulatory checks” being “implemented at the boundary of the zone, as appropriate and in line with relevant EU law, minimising the potential for non-compliance. This would be supplemented by on-the-market surveillance, as it is now”.
The benefit of the proposal was set out in point 10: “The regulatory checks and controls taking place on goods entering Northern Ireland from Great Britain would not apply when goods enter Ireland from Northern Ireland. The UK would not apply corresponding checks or controls on goods entering Northern Ireland from Ireland.”
The regulatory checks and controls on goods transported GB-NI (the ones Johnson later said would not exist) were intended to make the same checks at the NI-Ireland land border unnecessary.
In short, the problems arising out of the checks and controls stemming from the protocol are a direct result of the proposals Johnson himself outlined two years ago, and which formed the basis of the NIP as agreed 15 days after his letter was sent.
The Northern Ireland protocol was based on the EU draft of February 2018
This is not to suggest that Johnson’s ideas were wholly new. They are based on the draft withdrawal agreement published by the EU on 28 February 2018 that caused Theresa May to tell MPs that if implemented, the agreement would “undermine the UK common market and threaten the constitutional integrity of the UK by creating a customs and regulatory border down the Irish sea. No UK Prime Minister could ever agree to it, and I will be making that absolutely clear”.
But in October 2019, with time running out and a brick wall approaching fast, Johnson had no choice but to suggest and then accept something very close to what the EU had first outlined. The only alternative was a no-deal Brexit that would have caused massive problems – as Johnson well knew.
Only now are we seeing the chaos and shambles resulting from Britain leaving WITH a trade deal. It does not require much imagination to appreciate what would have happened had we left 14 months earlier with no enhanced trading arrangements, WTO tariffs on goods, no energy agreement, no reciprocal citizenship rights and so on.
What changes did Johnson make to the deal May rejected?
The Institute for Government looked at the key differences between the Northern Ireland protocol agreed to by Johnson and the EU version of February 2018. The changes are limited to the dual tariff system, allowing GB to adopt its own tariff rate schedule, and a consent mechanism.
The common travel area, regulations, VAT, enforcement mechanisms and governance are all as the original EU draft, demonstrating just what a weak hand the UK held at the time.
Circumstances are, if anything, even more heavily stacked in the EU’s favour now. The UK government is struggling with supply chain issues caused in part by Brexit and has had to delay implementing controls on EU imports. Meanwhile, the EU is carrying out checks on all UK exports to the bloc and could easily apply tariffs if it so wished. There have also been discussions about using the electricity interconnectors between the EU and the UK to limit power supplies.
Johnson’s protocol is set to poison relations between the UK, Ireland and the European Union for years to come and his name will forever be linked to it. Frost’s own long bad dream is only just beginning.
