The UK says it will have to take unilateral action to roll back part of the Northern Ireland Brexit protocol unless the EU shows the “required flexibility”. The EU said it believed a deal could be reached, but only through negotiation.
So what are the differences between the two sides and is the latest dispute more about politics than substance?
Where are the negotiations?
Talks between officials have been ongoing since March 2021, when David Frost took the unilateral decision to extend the grace period for checks on goods, including supermarket food. They nearly collapsed in June and then November when Lord Frost repeatedly threatened to invoke Article 16 and walk away from the negotiating table.
He resigned in December with the baton handed over to Liz Truss, and talks continued with optimism that a new and less combative approach by the Foreign Secretary would yield results after a “constructive” first meeting in Chevening, the grace and favor of the Minister of Foreign Affairs.
Was there no hope of a deal after Frost left?
Yes, the UK took a new approach in December, conceding that a staggered deal was more practical to separate trade barrier issues from the more delicate issue of the role of the European Court of Justice (ECJ). He was considering an interim deal easing checks in the Irish Sea in March, before the start of the pre-election period in Northern Ireland.
But Russia invaded Ukraine and the talks, other than exchanges between officials, fell into disuse.
They were about to restart but are now mired in a row due to unilateral action. As one source put it: “It’s as if the UK has backtracked.”
What does the UK want?
Last week, Truss released a list of seven demands:
Abolition of customs declarations for postal parcels, which would mean the restoration of online shopping for some of the large retail chains which have stopped delivering to Northern Ireland.
Ability to control the VAT rate in Northern Ireland. Truss complained that the protocol means certain VAT reductions, including relief on energy bills, which apply in the rest of the UK, cannot be applied in Northern Ireland due of the protocol.
What does the EU offer?
Last October, the EU unveiled four documents covering what it described as “wide-ranging” proposals to address UK concerns.
He has proposed scrapping sanitary and phytosanitary (SPS) checks on chilled meats with a new ‘national identity’ exemption for British sausages and other products destined for supermarkets in Northern Ireland. He offered a “tailor-made solution” which he said would remove 80% of SPS controls on foodstuffs. In exchange, the UK should complete the construction of border controls and ensure a new labeling system “for Northern Ireland”.
It offered an “enhanced” role for Stormont, businesses and civic stakeholders in the implementation of the protocol, including participation in meetings of the specialized committees responsible for overseeing the operation of the protocol.
Have any of these issues already been agreed upon?
Yes. In December, the EU announced changes, agreed with member states, allowing medicines, including new cancer treatments, to be authorized under UK national procedures. In June, he announced protocol changes to ensure live animals for breeding could move freely from GB to NI.
What are the chances of an agreement? Is there a landing zone for both sides?
Sausages and deli meats
Chances look strong for an agreement on some SPS controls, ending controls on UK sausages and chilled meats.
There is little chance of reaching an agreement on composite foods such as “Thai green curry prepared dishes” which do not meet origin standards which require mainly European-sourced ingredients. And meat from outside the EU will be considered a disease control risk. However, as the UK has long agreed that the island of Ireland is an epidemiological unit, this latter request can be dropped in a compromise scenario.
Wider SPS controls
Compromise is needed here. The EU has said that if the UK agrees to align with EU rules on animal and plant products, controls could be scrapped. However, London had in the past ruled out this ‘Swiss-style’ deal because it would force the UK to follow EU rules. He also said it would be a barrier to future trade deals where the UK might want to deviate from standards for pesticides, antibiotics or hormones. The EU has even suggested a temporary agreement, subject to review if a big trade deal emerges.
Green and red lanes
A deal here is very likely, with the UK seeking green and red lanes at ports and the EU offering ‘express’ lanes.
Customs declarations and parcels
The EU has offered to cut red tape by 50%, but there appears to be disagreement over what that looks like, making a deal less likely. Before quitting, Frost said it was misleading because it was simply a 50% reduction in boxes on customs forms.
Governance and ECJ
The EU will not budge on the role of the ECJ. However, the UK softened its stance in December that the tribunal should be eliminated from dispute settlement entirely. Instead, he thinks an arbitration proposal in the wider Withdrawal Agreement – which settles disputes in the political arena in the first place – could work in the Northern Ireland context. There is room for manoeuvre.