EU-UK Relations Nose-Dive as Northern Ireland Protocol Stand-Off Heats Up

The EU-UK relationship remains in a dire state. From the EU side, trust and confidence in the UK government could hardly be lower. Current talks around the Northern Ireland protocol are limping along even if the rhetoric has been toned down in the last week. Kirsty Hughes asks: Will a compromise finally be patched together or is an EU-UK trade war really looming – with all the impact that would have in Northern Ireland, Ireland, Britain and for the EU?

In signing up to the Withdrawal Agreement at the end of 2019 and to the Trade and Cooperation Agreement at the end of 2020, the EU and UK ensured that they would be locked in a permanent state of dialogue. Multiple specialist committees oversee detailed issues and at, top level, there’s the EU UK partnership council. And since the two sides are condemned to talk, there will inevitably be times they disagree, with disputes procedures for such instances.

This would all be well enough in a reasonably rational partnership. But that is not what either Boris Johnson or his emissary David Frost appear to be after. Their broad aim looks like one of permanent dispute, with Brussels still cast as the enemy and the EU, not Brexit, to blame for any difficulties. Whether this destabilising UK government behaviour will really bring them the headlines and public support they seek is an open question. And in the case of the Northern Ireland protocol, it is inflammatory – and deeply irresponsible. But at a time when the Johnson government is under increasing pressure over sleaze, creating a major EU-UK row may also look to Johnson like a temporary escape route. On the other hand, it could suggest an even more out-of-control government than at present.

How did we get here?

The UK government has gone from praising the 2019 Withdrawal Agreement to the skies to demanding that there is a fundamental renegotiation of the protocol, with proposals it set out in July, including removing the role of the Court of Justice of the EU (unacceptable to Brussels). EU voices are warning clearly, both on and off-the-record, that the Withdrawal Agreement, including the protocol, and the Trade and Cooperation Agreement are one relationship and go together – breaching one will impact on the other. The EU, while underlining its expectation that the UK respects the international agreements it signed up to, has offered an outline package of flexible adjustments, within the context of the protocol, in October.

But, so far, there appears to have been little progress in the talks on the EU’s proposals, with the UK sticking to its July aims of renegotiating the deal. And the UK government continues to toy with its threat to trigger the Article 16 safeguard procedures in the protocol. However, the UK side did reduce its belligerent rhetoric around the last negotiators’ meeting a week ago. There are EU complaints that the UK is not even moving forward on setting up border control posts despite those being necessary even if many but not all checks are removed. And, while the EU’s October proposals are not fully detailed, it is also clear that the EU will not be coming back with a further or different package – the end of the road is approaching.

Boris Johnson does have a track record of making big threats only to back down – the ‘mad man’ approach to negotiations. ‘No deal’ threats in 2019, over the Withdrawal Agreement, and in 2020 over the Trade and Cooperation Agreement were eventually withdrawn – and neither agreement shows any obvious big negotiating wins for the UK from these no deal warnings. Johnson and Frost may pretend they somehow got something from taking it to the wire in 2019 and 2020, but that doesn’t square with now saying the Withdrawal Agreement success is actually a failure, negotiated under pressure, and must be fundamentally changed.

At the heart of the Northern Ireland protocol stand-off between the UK and EU lies the fact that the protocol Johnson signed up to does indeed put a customs and regulatory border between Britain and Northern Ireland. It was an extraordinary, cavalier act on Johnson’s part to put such a border within the UK and it represented the main change he made in the 2018 Withdrawal Agreement that Theresa May had agreed the year before.

Having taken such a step, Johnson now says it is politically unacceptable to implement the border that he signed up to in order that Britain (but not Northern Ireland) should go ahead with a hard Brexit outside the EU’s customs union and single market.

What next?

No-one is sure where this will go next. There is still more support for the protocol than not in Northern Ireland but it is highly divisive between unionist (broadly against) and nationalist and ‘neither’ (broadly in favour) communities, as recent Queen’s University Belfast polling has shown. An EU-UK deal to move forward is badly needed – and one that the UK government commits to and implements.

The core question is whether Johnson wants the stand-off to be resolved in a deal where he can claim a ‘win’ or whether he really wants a full-scale trade war. What is different in the current dispute is that it is not only the UK government that is making threats – with its suggestions it could trigger Article 16. If the UK did trigger Article 16 on a major scale, lifting border controls between Britain and Northern Ireland, the EU is starting to make it clear it would respond very strongly.

Article 16 is a process and any unilateral safeguard measures are meant to be limited and proportionate; if such safeguard measures are introduced then the EU and UK should immediately enter into discussions on the situation. The real question occupying Brussels is whether the UK government would trigger Article 16 in a limited way, with relatively minor measures, or whether it would remove all border controls.

Removing all Britain-Northern Ireland controls would mean a big hole in the EU’s external border and, from the EU’s point of view, would threaten Ireland’s place in the EU’s single market. This is the scenario that has led to suggestions the EU could potentially give a one-year notice of ending the Trade and Cooperation Agreement (although there are provisions for suspending the TCA within 30 days under certain circumstances). Whether the EU would move straight to suspension or to intermediate measures (particular tariffs, etc.) is unclear. But what is clear is that the UK reneging on the protocol and threatening or undermining Ireland’s place in the single market will provoke a very strong EU response.

If the EU did suspend the TCA, the already damaged and fractious EU-UK relationship would certainly get yet worse. But it would also, in the end, force more talks between the two sides. And suspending the TCA does not solve the problem of how to avoid a border on the island of Ireland or between Ireland and the rest of the EU if there is no border in the Irish Sea between Britain and Northern Ireland. Rather it puts the maximum pressure on the UK – but to what final outcome is also uncertain.

There may well be more sound and fury in the EU-UK talks yet to come. But the hope has to be that just as Johnson backed down in his no deal threats twice in the last two years, he will also back down from a trade war, the huge political row that would accompany that and the further destabilisation of Northern Ireland and the peace process. If not, the future looks bleak indeed.

Kirsty Hughes is a writer and researcher on European politics and a Fellow of the Royal Society of Edinburgh, and a member of the European Institute Advisory Board.

Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL

Photo is by UK Prime Minister on Twitter: ‘Prime Minister Boris Johnson signed the Withdrawal Agreement for the UK to leave the EU on January 31st’, posted 24 January 2020. Open Government License 3.

A previous version of this post was published by the European Movement in Scotland.

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