Northern Ireland Protocol: conciliatory EU proposal allows UK to claim victory

The first thing to say about the EU’s latest offer on the Northern Ireland Protocol is that it is generous and forward-looking. It is less a retreat – which is how many in the Tory press will choose to present it – than a shrewd tactical withdrawal from the Commission’s earlier stated position. 

In the words of the European Commission Vice President Maros Sefcovic, the EU has come up with a positive solution to a range of issues, even, in the case of access to medicines, turning its existing rule-book “upside-down and inside-out”.  

The package provides exactly the light touch that Lord Frost, the UK’s chief negotiator, said he wanted. Regulations governing key import sectors (medicines, farm products, plants and cut flowers, food and drink processing) have been significantly relaxed, leaving very little over which legitimate argument remains.  

And that, as far as Brussels is concerned, ought to be an end to the matter. The British government and the Tory Party should be aware that this is about as far as the Commission and Council are prepared to go. They have bent, but they will not break. It will be a case of either take it or else leave it and live with the consequences.  

The second thing to be said is that the EU has not given ground to the UK on a key demand – that the European Court of Justice should no longer have the final word in disputes over the operation of the Protocol. The red line that was there from the start looks to be as red as ever and, if today’s offer is accepted, the best Britain can probably hope for is that the court’s powers will very rarely be tested or invoked. 

At a press conference in Brussels yesterday, Sefcovic tried as best he could not to mention the obvious outstanding problem, focusing instead on what he said were “creative, practical solutions” to the complexities of Northern Ireland. Answering questions, the most he said – and it was like pulling teeth – was that the Luxembourg court was “the final arbiter of the Single Market” and that “this is very clear.” 

In choosing to accentuate the positive – an 80 per cent reduction in goods checks and a complete overhaul of paperwork required to import goods into Northern Ireland from the rest of the UK – Sefcovic was putting the ECJ ball firmly in Britain’s court. He hopes to have lunch on Friday with Lord Frost, the UK’s post-Brexit negotiator, at which, presumably, Frost will attempt to nibble away at the role of the court in favour of independent arbitration.    

If so, my guess is that he will finally come up against a brick wall. But who knows? Boris Johnson and Frost look to have chosen to make the role of the court – viewed as a serious encroachment on British sovereignty – paramount in the discussions rather than the impact of the Protocol on the status of Northern Ireland.  The PM could threaten to invoke Article 16 of the Withdrawal Treaty, which gives both sides the right to disapply certain provisions of the deal. But if he does, he will have opened a can of worms that British exporters would much prefer to keep closed.   

Seen from Downing Street, the dispute over the position, post-Brexit, of Northern Ireland, which has smouldered on and off for at least the last three years, was never about the border down the Irish Sea or the province’s land frontier with the Republic. It was always about the completion of Brexit, meaning the clear establishment of the UK as wholly separate from the EU.  

In Northern Ireland, Unionists – the DUP in particular – like to insist that both sides of the community have been materially affected by the Protocol and are demanding that it be removed. This is nonsense. It is true that unionists in general are worried about a perceived erosion of their Britishness. Only a minority, however, regards stepping up the Sausage Wars as more important than carrying on with business as usual. At the same time, the Catholic/nationalist population, due within the next ten years to form a majority of the electorate, is perfectly content with the new reality, which emphasises the link with Dublin and Brussels as much as that with London.  

Overwhelmingly, it is hardline Loyalists – the ones who take to the streets in support of Soldier F and regard bonfires decked with the Irish tricolour as an expression of their culture – that have raised the issue from one of regulation and legal argument to a cause for conflict, even insurrection. Backed by the DUP (whose support for Brexit was clearly motivated by the desire to see the Irish border reimposed as an international frontier) and led by the paramilitary UDA and UVF, it is Loyalists who have stirred the current, and waning, societal unrest.  

Manufacturers in NI are for the most part supportive of the Protocol, which gives Ulster the unique advantage of being able to sell freely, without let or hindrance, into both the UK and EU markets.  

To take one example, Wrightbus of Ballymena, acquired in 2019 by Jo Bamford, son of JCB tycoon Tony (Lord) Bamford, has won orders to supply more than 1,000 hydrogen-powered buses to European cities, without regard to tariffs or customs barriers of any kind. How many companies in England would give their eye teeth for such an arrangement?  

Just this week, a new terminal was opened at the port of Dunkirk aimed at maximising the access to the EU of trucks from north and south in Ireland. Drivers from Belfast, Derry and Newry now have a choice each week of 44 direct crossings to Dunkirk, Cherbourg, Roscoff and Santander, avoiding the so-called land bridge and the long lines and checks that hold up British trucks bound for Europe. 

Today, with the Commission having proposed a comprehensive raft of changes, all designed to make life easier for NI traders, it is surely time for unionists – if not Loyalists – to say, we’ve got what we wanted, time to move on.  

Lacking a crystal ball, I can’t say how the British Government will respond to the Sefcovic package or how the DUP will resolve the effective downgrade of the Protocol from existential threat to a question of administrative tedium. Lord Frost seemed to be digging his heels in when he told an audience in Portugal on Tuesday that the jurisdiction of the ECJ was a red line for Britain. Equally, Jeffrey Donaldson, the DUP leader, might feel he now has to make good on his vow to bring down the Stormont Assembly if the Protocol is not removed in its entirety.  

Or – as it may be – both Frost and Donaldson might discover within themselves the humility to accept the Commission’s offer as genuine and reasonable and leave any remaining outworkings of the Protocol to experts who know what they are about. 

As for the Prime Minister, he will be frustrated by the fact that, for all that its role was underplayed today in Brussels, the ECJ continues to haunt the process. On the other hand, he may feel that it is now up to the UK to show willing and there is enough on the table to enable him to claim victory, which in the end is, to him, what Brexit is all about.