Kildare Nationalist – Explained: The Northern Ireland Protocol – what is it and why is it so controversial?
By David Young, PA
As the EU prepares to come forward with new proposals to address issues with Northern Ireland’s Brexit Protocol, the UK government has warned Brussels that reforms must include removing the oversight role of EU judges.
It is the latest twist in a long-standing political drama over the Withdrawal Agreement’s most controversial element.
Here are the answers to some key questions about the protocol.
What is the protocol?
An agreement governing trade across the Irish Sea after Brexit. Negotiated between the UK and the EU as part of the Withdrawal Agreement, this was how the two sides overcame the main blockage in the Brexit divorce talks – the Irish land border.
To avoid disrupting cross-border trade and a return of checkpoints along the politically sensitive border, London and Brussels have essentially agreed to move new regulatory and customs processes to the Irish Sea.
This meant controls on trade between Britain and Northern Ireland, rather than on goods moving north and south into the interior of the island of Ireland.
Products shipped from Northern Ireland to Great Britain are largely unaffected by the protocol.
Rather, the red tape applies to movement in the other direction.
As of December 31, a series of animal and plant safety regulatory checks have been in place, including physical inspections for part of the cargo arriving at ports in Northern Ireland.
Customs declarations are also required for incoming commercial goods.
How does the protocol work?
While the rest of the UK is gone, Northern Ireland has remained in the EU’s single market for goods.
The region also enforces EU customs rules at its ports, although it is still part of UK customs territory.
The protocol also provides for Northern Ireland to comply with certain EU rules on state aid and VAT on goods.
Is the protocol fully operational?
No. Late last year, the UK and the EU agreed to a series of grace periods designed to reduce the level of Brexit bureaucracy in the first few months of operation.
Although a series of new controls and processes have been applied since January, these would be eclipsed by the volume of paperwork expected if the exemption periods were to expire.
Northern Ireland’s chief veterinarian has warned that if the grace period limiting checks on agri-food products from supermarkets ends, the region would have to process the same number of veterinarian-approved export health certificates as the whole of the EU does this in total every year.
Stormont’s health minister also warned of the risk of drug shortages if new rules come into force that restrict Northern Ireland’s ability to access supplies from Britain.
Aside from the 12-month drug exemption, most of the other grace periods are expected to have already expired according to an original timeline agreed by the EU and UK last year.
However, political discord over the protocol has seen these exemptions extended on several occasions, sometimes with the agreement of the EU, but mainly as a result of unilateral action by the UK.
In the last solo race in the UK, the government declared an indefinite extension of all exemptions while seeking permanent changes to the protocol.
So what is the so called “sausage war”?
A term used by some to illustrate and simplify the protocol debate.
It only concerns one aspect of the single market rules that apply to Northern Ireland under the agreements – the ban on chilled meats.
Under EU rules, the importation of these products from third countries is prohibited. This means Northern Ireland may no longer be able to import sausages from Britain and other chilled meats on the ban list.
The ban did not go into effect because the chilled meat trade is covered by one of various grace periods that the UK has unilaterally extended indefinitely.
However, it is already difficult to find British sausages on shelves in Northern Ireland, as many retailers have adjusted their supply chains in anticipation of the ban.
Why focus on the European Court of Justice (ECJ)?
Under the terms of the protocol – agreed by the UK and the EU in 2019 – the CJEU would be the final arbiter for any future disputes between the UK and the EU over the operation of the protocol.
In its July command document on the protocol, the UK said it was time to “normalize” this oversight arrangement and replace it with a model of international arbitration.
The UK government said it had only accepted a role for the ECJ in the protocol because of the “very specific circumstances of this negotiation” as the UK pushed for a Brexit deal.
The issue of the ECJ has not figured significantly in the intense public and political debate on the protocol in Northern Ireland.
For example, it is not mentioned explicitly in any of the seven tests that the DUP has put in place to judge the proposed changes to the provisions.
The perceived lack of attention to the issue to date has led critics of the government to accuse it of introducing a new “red line” as it appears the EU is on the verge of solving practical problems causing daily trade friction.
Sinn Féin described him as Brexit Minister Lord Frost throwing a “dead cat” on the negotiating table.
Who is unhappy with the protocol and why?
Companies transporting goods from Britain to Northern Ireland have faced additional costs and tons of new red tape.
There has undoubtedly been some disruption, as many traders have encountered problems shipping goods across the Irish Sea.
In the first weeks of 2021, this was demonstrated by the depletion of supermarket shelves in Northern Ireland. While bureaucracy has continued to hamper commerce ever since, many companies have adjusted and adapted their processes to try to minimize the impact.
Politically, trade unionists and loyalists are constitutionally enraged.
They believe the agreements have created a wedge between Northern Ireland and the rest of the UK, with the protocol forcing an economic shift with the Republic of Ireland.
Unionist politicians have demanded that the British government intervene to radically redesign the protocol or abandon it altogether.
They called on the British Prime Minister to trigger a mechanism in the protocol – Article 16 – to unilaterally suspend aspects of its functioning in order to start new negotiations with the EU on the issues.
The protocol has undoubtedly been a contributing factor to the flow that has been observed within political unionism since the start of the year.
This was illustrated by the chaos that engulfed the DUP over the summer, when two leaders, Arlene Foster and then Edwin Poots, were ousted in successive internal uprisings.
Current DUP leader Sir Jeffrey Donaldson has threatened to collapse power-sharing institutions in Stormont within weeks if major protocol changes are not achieved.
Away from the political arena, latent discontent within the loyalist community turned into street violence in April, with protocol a major factor in the riots that broke out in various parts of Northern Ireland.
However, fears of further unrest around the summer parade season of faithful Protestant orders did not materialize.
With Boris Johnson having previously pledged never to put economic barriers in the Irish Sea, trade unionists and loyalists see the protocol as a Brexit “betrayal” they wanted.
They believe that the whole of the United Kingdom did not leave the EU under the same conditions, Northern Ireland being left behind, partially trapped in European structures.
All of this is playing out in a year when Northern Ireland marks the centenary of its founding and as Republicans continue to push for a referendum on Irish unity.
What about the other major parties in Northern Ireland?
Sinn Féin, the SDLP and the Alliance were all opposed to Brexit. These parties insist that the problems in Northern Ireland are the result of Brexit, rather than the protocol itself.
While recognizing that the problems related to the protocol must be resolved, they oppose any initiative to remove the provisions completely.
They also highlight the potential benefits of the protocol, in particular the unique status it gives traders in Northern Ireland to sell both in the UK domestic market and in the EU single market without restriction.