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Desperately seeking a solution to the Northern Ireland Protocol

Anton Spisak is a senior fellow at the Tony Blair Institute for Global Change.  

When Liz Truss was first in charge of relations with the European Union as the United Kingdom’s foreign secretary, she was seen as a relative pragmatist. 

She welcomed her counterpart Maroš Šefčovič to her Chevening residence, replaced the cavalier bombast of her predecessor Lord David Frost with a more serious tone, and presented herself as a dealmaker. But that impression only lasted until she showed no hesitancy in aggravating U.K.-EU relations by introducing legislation that would unilaterally rewrite the Northern Ireland Protocol, the post-Brexit agreement designed to avoid a hard border on the island of Ireland.   

As she entered Downing Street just a few weeks ago, Truss has carried that legacy of mistrust with her, along with the constancy in her position on the Protocol. But now, as the U.K. finds itself in desperate need of repairing relations with the EU, it is time for both parties to come back to the table and negotiate a way out of the impasse. 

Fixing the agreement, in Truss’ view, calls for a political solution — a more fundamental overhaul of the treaty, not just technical fixes seeking to reduce checks on goods moving into Northern Ireland from Great Britain. And if the EU refuses to agree to her plans, she warns that her government will implement them through domestic law anyway. 

The EU, for its part, has consistently said that checks and “easements” to cut paperwork are possible, but a renegotiation of the treaty is not. The view across European capitals is that the U.K.’s proposals are not only unworkable but also wrong in principle. How, European diplomats from Dublin to Tallinn ask, can a community based on observance of rules make concessions to a partner seeking to override an international treaty into which it recently voluntarily entered? 

Worse, what signal would it send to other countries waiting to flout the rules-based order? 

For all their differences, however, there have been some encouraging signs in recent weeks.  

For a start, the British government and the European Commission have agreed to depoliticize their disagreement over steel tariff rate quotas by setting up a process to avoid levying a 25-percent tariff on steel products moving into Northern Ireland. 

The two sides have also avoided a diplomatic confrontation that appeared all but inevitable after the Truss government warned it would invoke the now-infamous Article 16, allowing it to override contentious parts of the Protocol. In the end, London, instead, sent a written request to keep the “standstill” arrangements in place, and Brussels informally agreed — for now — to not refer the case to the Court of Justice of the EU. 

Additionally, there is now talk of setting up a “joint process” to look over substantive issues once more. Both sides are pinning their hopes on finding agreement on data sharing, as the Brits edge closer to giving EU officials near real-time data access on the east-west movements of goods. This, they believe, could unlock new discussions about what would be a sensible risk-based approach to managing the controls. 

In a world of low expectations, simply being in the same room for such discussions may count as progress. But for the negotiations to be productive, two things must happen:   

First, they must be underpinned by mutual agreement — however tacit — that for the duration of talks, the British government would pause the passage of the Northern Ireland Protocol bill through parliament in exchange for the Commission pausing its infringement cases. 

Second, a high-level agreement must be reached on the principles guiding negotiations on four core issues — how to treat goods moving into Northern Ireland from Great Britain; how to address the implications of future regulatory divergence; what can be done with state aid and value-added-tax (VAT) provisions; and how the Protocol should be governed.  

These principles must start with a recognition that the checks and requirements on goods moving into Northern Ireland from Great Britain could vary according to their final point of sale. The negotiators would then need to work out how those requirements differ, how to enforce them and, critically, what safeguards should be put in place.   

Both sides should also agree that managing future regulatory divergence requires finding a governance system, which would minimize future trade barriers and manage future disagreements that are bound to arise — such as whether the EU’s carbon-border adjustment mechanism would apply on some imports from Great Britain into Northern Ireland.  

In order to deal with the U.K.’s further concerns, the two sides should agree to explore potential carve-outs for specific products on VAT, and whether the provisions of the trade and cooperation agreement can supersede the Protocol’s state aid clause. 

And on governance, the presumption must be that any changes to dispute settlement can only be discussed after most substantive questions have been settled — not vice versa.  

Finally, the focus must be on finding agreement on the solutions, not the exact legal form in which they would be packaged — a temptation that typically derails productive negotiating efforts.  

Any compromise solution is also complicated by the fact that it must encourage Northern Ireland’s Democratic Unionist Party (DUP) back into the governing institutions. The DUP might resist most compromises, but it will, ultimately, be the negotiating progress between London and Brussels that will increase its electoral cost of continued intransigence.  

What is currently driving a change in attitude toward the problem is a combination of factors. In London, there is recognition that a serious confrontation with the EU would damage not only its economy at the worst possible time but also its diplomatic ties with Washington. Meanwhile, Brussels increasingly sees the argument over the Protocol as a distraction from other issues and wants it to be settled. 

Both parties appreciate that the failure to find an agreement — at least in principle — before the 25th anniversary of the Good Friday Agreement in April would be a diplomatic failure.  

Whether they can thrash out a compromise in six months remains to be seen, of course. But there is now an opening for both parties to get back to the negotiating table, and put in the effort that the people and businesses of Northern Ireland deserve. 

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