Non-enforcement has eroded trust – The UK in a changing Europe

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Problems with the implementation of the Protocol on Ireland and Northern Ireland have pushed the formal relationship between the UK and the EU to its limits. Since the entry into force of the protocol on January 1, 2021, the fears of the EU over the non-implementation of an agreement on the British side, an agreement which it had signed a few months before, seem to have been confirmed.

The Protocol on Ireland and Northern Ireland – part of the Withdrawal Agreement – was agreed by the UK and the EU in October 2019. The protocol keeps the border open after the UK leaves United of the EU in accordance with the Belfast/Good Friday agreement. .

However, it does provide for checks on goods moving between Britain and Northern Ireland, as the latter remains in the EU’s single market for goods and EU member states must prevent the entry of goods which do not meet EU standards or which compete unfairly with the EU. producers. The principle that checks are carried out before they reach the island of Ireland was agreed between Prime Minister Boris Johnson and Taoiseach Leo Varadkar in October 2019, as a solution to the ‘Irish trilemma’.

When Boris Johnson addressed the UK Parliament in October 2019, he called the protocol a “good deal” which balances “the special circumstances in Northern Ireland with the minimum possible bureaucratic consequences at a few points of arrival in Northern Ireland. North” while “ensuring an open border on the island of Ireland”. The UK’s impact assessment published with the withdrawal agreement on October 21 lists the checks that will take place between Britain and North Ireland.

A few days before the entry into force of the application of the protocol, on January 1, 2021, the United Kingdom and the EU adopted decisions to facilitate the implementation of the protocol. The UK has agreed, for example, to provide EU authorities with continuous, real-time access to their relevant IT systems and databases as a solution to facilitate customs controls.

The two sides also agreed on a series of temporary solutions. For example, medicines would benefit from a one-year exception and there were grace periods for the trade in chilled meats and export certificates for supermarkets. The EU has made it clear that these solutions are “temporary in nature” and come with “strict conditions”.

Yet just a month later, in a letter to his European counterpart, Maroš Šefčovič, Michael Gove called for the temporary measures and grace periods to be extended and for permanent solutions to be found. In his response, Šefčovič stressed that the solutions “agreed six weeks ago…must urgently be fully and faithfully implemented” before “any further facilitation is necessary and justified”.

However, in early March 2021, the UK government announced unilateral decisions to extend a number of grace periods agreed under the protocol without informing the EU of its intention. As a result, on March 15, 2021, the European Commission sent a letter of formal notice to the United Kingdom, thus launching an infringement procedure.

In the interest of reaching an agreement in October 2019, the EU had agreed that British authorities would carry out checks on goods entering the single market between Britain and Northern Ireland under EU supervision. . The EU viewed the UK’s actions in early 2021 not just as a failure to implement the protocol, but as illustrations of bad faith.

Lord Frost has since explained that, although the UK signed the agreement in good faith, “we knew that certain aspects of the protocol … were problematic. We didn’t particularly support them ourselves. We agreed with them because it was the right thing to do for our country as a whole, given the wider political debate and the need to consider Brexit.

By June 2021, tensions had escalated. Prime Minister Boris Johnson has declared himself ready to invoke Article 16 of the Protocol while European Commission President Ursula von der Leyen declared that “both parties must implement what we have agreed upon”. Section 16 is a last resort safeguard mechanism that allows either party to undertake unilateral measures.

In July 2021, the UK published a new approach, in which it calls for the renegotiation of the protocol. EU quickly rejected renegotiation and insisted on developing solutions within the framework of the agreement. Nonetheless, the EU suspended legal action against the UK over breaches of the protocol “to provide space to reflect on these issues” and implementation solutions. In October 2021, he presented a series of proposals for “tailor-made arrangements” to limit any disruption to the Northern Irish economy. The four non-papers cover customs, sanitary and phytosanitary issues, the movement of medicines and give Northern Ireland stakeholders a greater role in the implementation of the protocol.

In December 2021, the two parties reached an agreement on the circulation of drugs. Grace periods for chilled meat products have also been extended indefinitely as implementation talks continue. But, throughout the fall of 2021, talks between the UK and the EU have been tense, with the UK repeatedly stressing its willingness to invoke Article 16 of the protocol. Member states have reportedly considered the possibility of suspending entire parts of the ACT in the event the UK decides to unilaterally suspend parts of the protocol.

Although relations improved from January 2022, patience was at an end. For example, Šefčovič recently expressed the frustration of the EU that the UK had still not provided the EU with access to its relevant computer systems and databases almost 16 months after agreeing to do so.

In addition, confirmation by Boris Johnson in April 2022 that his government was considering legislation that would allow ministers to override parts of the protocol has heightened EU concerns. When reports surfaced that Foreign Office officials had drawn up legislation and British Foreign Secretary Liz Truss had indicated she would act unilaterally, Maroš Šefčovič issued a measured statement.

The Dutch prime minister struck a similar tone, saying “It’s not unreasonable for us to expect the UK to stick to this deal” and to “find the solution within the protocol”. But a number of European leaders, including the German chancellor, the Belgian prime minister and the Irish Taoiseach, have publicly warned London against unilateral action.

The UK’s position was already damaged when it twice tabled legislation in autumn 2020 that put the UK in breach of international law. The latest flare-up in tensions has further eroded confidence, with many doubting that the UK government really intends to facilitate implementation.

By Dr Cleo Davies, Senior Research Associate, University of East Anglia.

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