The UK is saying it will have to take unilateral action to override part of the Northern Ireland Brexit protocol unless the EU shows the “requisite flexibility”. The EU has said it believes a deal can be done but only through negotiation. So what are the differences between the two sides and is the latest row more about politics than substance? What is the status of 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 came close to collapse in June and again in November when Lord Frost repeatedly threatened to invoke article 16 and walk away from the negotiating table. He quit in December with the baton handed to Liz Truss, and talks continued with optimism that a new and less combative approach by the foreign secretary would yield results after an initial “constructive” meeting at Chevening, the foreign secretary’s grace and favour home. Wasn’t there hope of a deal after Frost’s departure? Yes, the UK took a new approach in December, conceding a phased deal was more practical separating trade barrier issues from the trickier problem of the role of the European court of justice (ECJ). It envisaged an interim deal easing checks on the Irish Sea in March, before the pre-election period in Northern Ireland kicked in. But Russia invaded Ukraine and talks, other than exchanges between civil servants, went into cold storage. They were about to restart but are now mired in a row over unilateral action. As one source said: “It’s like the UK has turned back the clock.”
What does the UK want? Last week Truss published a list of demands: Removal of checks on British sausages and other chilled meats. She also cited barriers to the supply of “Thai green curry ready meals, New Zealand lamb and Brazilian pork”. Removal of customs declarations for parcel post, which would mean the restoration of online shopping for some of the big high street chains that have stopped delivering to Northern Ireland. Removal of veterinary certificates for pets travelling from Northern Ireland to the rest of the UK. Ability to control the VAT rate in Northern Ireland. Truss complained that the protocol means some VAT cuts, including the relief on energy bills, which apply in the rest of the UK cannot be applied in Northern Ireland because of the protocol. Removal of the European court of justice as the arbiter in disputes. A green lane and red lane at ports to distinguish between goods destined for Northern Ireland and those travelling onward into the Republic of Ireland and the single market. What is the EU proposing? Last October the EU unveiled four papers covering what it described as “far-reaching” proposals to address the UK’s concerns. It offered to do away with the sanitary and phytosanitary (SPS) checks on chilled meats with a new “national identity” exemption for British sausages and other goods destined for Northern Irish supermarkets. It offered a “bespoke solution” it claimed would get rid of 80% of the SPS checks on food. In exchange the UK would have to complete the construction of border controls and ensure a new “for Northern Ireland” labelling system. It offered to reduce customs declarations by 50%. It offered an “express lane” out of ports for goods destined for Northern Ireland only. It offered an “enhanced” role for Stormont, business and civic stakeholders in the implementation of the protocol including attendance at meetings of specialised committees charged with overseeing the operation of the protocol. An uninterrupted supply of medicines was offered. Have any of these issues been agreed already? Yes. In December the EU announced changes, agreed with member states, allowing medicines, including new cancer treatments, to be authorised under national UK procedures. In June it announced changes to the protocol to ensure live animals for breeding would be able to move freely from GB to NI.
What are the chances of a deal? Is there a landing zone for both sides? Sausages and chilled meats Chances appear strong for a deal on some SPS checks, ending controls on British sausages and chilled meats. There is little chance of a deal on composite foods such as the “Thai green curry ready meals” that do not meet the rules of origin standard that require mostly EU sources ingredients. And meat from outside the EU will be considered a disease control risk. However, as the UK has long agreed the island of Ireland is one epidemiological unit, the latter demand may be dropped in a compromise scenario. Wider SPS checks Compromise is needed here. The EU has said if the UK agreed to alignment on EU rules on animal and plant products, the checks could be eliminated. However, London had in the past ruled this “Swiss style” agreement out as it would mean the UK having to follow EU rules. It has also said it would pose a barrier to future trade deals where the UK may want to deviate on pesticide and antibiotic or hormone standards. The EU has even suggested a temporary deal, reviewable if a big trade deal emerged. Green and red lanes A deal here is highly 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 slash paperwork by 50% but there appears to be a disagreement on what that looks like, making a deal less likely. Before quitting, Frost said it was misleading as it was merely a reduction in 50% of the boxes on customs forms. Governance and the ECJ The EU will not budge on the role of the ECJ. However, the UK softened its position in December that the court should be eliminated from dispute resolution entirely. Instead it believes an arbitration proposal in the wider withdrawal agreement – which allows disputes to be settled in the political arena in the first instance – could work in the Northern Ireland context. There is room for manoeuvre here.