Graham Gudgin: The Northern Ireland Protocol. Brussels is still unlikely to offer enough to restore the Assembly and save the Good Friday Agreement. | Conservative Home

Dr Graham Gudgin CBE was special advisor to the First Minister in the Northern Ireland Assembly. 

The recent excitement over a ‘breakthrough’ in the talks on the Northern Ireland Protocol (NIP) revealed what many had suspected. This was that the detailed talks taking place over recent months solely addressed EU concerns. Primarily, this means their desire for real-time access to UK customs data which is currently provided by all firms selling goods into Northern Ireland (NI) from Great Britain (GB).

The EU now has details of all goods bound for NI even before the lorries board the Irish Sea ferries. Actually, they have had this data for the last three months, during which they have been trialing the new customs declaration system which HMRC has been developing. Meeting EU demands has also meant the announcement of legislation for UK oversight of border customs posts in NI (despite the previous Irish demand for no border posts).

The ‘breakthrough’ was not in meeting UK demands. It comes instead in removing the roadblock to the start of intensive discussions. Until now the EU has apparently refused any formal talks to address the UK proposals outlined in Lord Frost’s July 2021 Command paper. Media reports of the ‘breakthrough’ gave no explanation for why the UK proposals could not have been discussed alongside the EU’s demands for data access.

However, there do seem to have been background contacts preparing the way for the current talks. The Times story of an incipient agreement may have been kite-flying, but it provides some insight into the nature of the agreement being discussed.

Checks will apparently be reduced further on goods going into NI from GB (without an indication of removing customs declarations). The role of the ECJ will seemingly be pushed further into the background with more input from NI’s courts. This takes us not nearly far enough towards agreeing with the UK’s Command paper proposals and the DUPs overlapping seven demands. 

The UK’s 2021 proposals involve applying full Irish Sea customs and food-checking (SPS) processes only to goods destined for the EU and not to those destined solely for NI and that the EU-controlled regulatory environment in Northern Ireland should be loosened to allow goods regulated by UK authorities to circulate freely in Northern Ireland.

The relationship between the UK and the EU would not ultimately be policed by the European Court of Justice. Reduced EU involvement would also be sought in VAT rates and structures. The UK would protect the Single Market by introducing export controls described as “new legislation to deter anyone in Northern Ireland looking to export to Ireland goods which do not meet EU standards or to evade these enforcement processes “.

What can we realistically expect from the current negotiations? The EU showed their hand in October 2021. They claimed to have offered cuts of 80 per cent in customs declarations. Lord Frost later revealed that these involved no reductions. Instead, they removed less-important lines required in customs declarations but saved little time, effort, or cost for firms.

Most importantly, they did nothing to address unionist demands for the complete removal of the trade border, and the restoration of democratic processes for commercial regulations within NI. The EU was only willing to ease the Protocol’s application, and not change the document itself.

It saw the problems solely as practicalities and did not address the constitutional issues behind unionist and ERG concerns. In particular, there was no willingness to remove undemocratically imposed EU regulations in NI nor ECJ oversight on these regulations’ application.

Three years after Brexit, there does seem to be an EU recognition of the need for amicable co-existence with the UK government. Some ways forward are now possible. The new agreement on EU access to UK trade data provides a potential way forward on trade.

The data presently consists of customs declarations. It could be diluted to consist merely of invoices or similar commercial information for ‘green-lane’ goods destined for NI. It could thus be claimed that a green lane is not a customs border and hence not of constitutional importance. The trade data would instead be used by the EU merely to police its land border in Ireland.

That is only a start. Goods entering NI for processing rather than consumption would still worry Brussels: they could still easily enter the EU across the land border. Similarly, the EU will object to the proposal that UK regulations could be used for goods produced within NI and not destined for the EU since unregulated goods can easily cross.

There is little sign that Brussels realises the need to rely on UK legislation to forbid exports to the EU. Until it does, undemocratic EU regulations and constitutionally unacceptable customs declarations will block progress.

The EU cites the example of infected South American oranges entering GB. If these got into NI and across into the Republic, they could damage the Spanish orange industry. The same oranges could, of course, enter the EU from Dover. But, theoretically, they could be intercepted by French customs.

In practice, this would only occur if French customs knew that they were coming, but potential interception would act as a deterrent. In NI, vigorous enforcement by the UK would be needed to support legislation protecting the Single Market. The EU has always, perhaps wilfully, mistrusted UK’s intentions. There is little sign of a new approach from Brussels. Nor will the EU agree to the DUP’s key demand: completely removing ECJ oversight.

Rishi Sunak has faced the difficult decision of deciding whether to take on either the EU or the DUP plus the ERG, Boris Johnson, and Liz Truss. He has already the stalled Protocol Bill in the Lords to ease pressure on the EU. Keir Starmer’s oily Belfast speech offered Labour’s help in overcoming what he described as ‘the Brexit purity cult’ of the DUP and ERG.

Sunak hopes a deal with the EU can satisfy both sides. If, as seems likely, Brussels offers only minor improvements, he will be faced with an implacable DUP and no NI Assembly. He would also face a party split with the ERG opposing any fudge. A temptation to use Labour backing in removing the cross-community consent core of the Good Friday Agreement to get the Assembly back in action risks a new generation of grievance in Northern Ireland and will split his party.

Sunak will view the distractions of conflict in NI, amongst Conservatives, and with the EU as electoral poison. The most likely way through this impasse is a new agreement, sitting on top of the existing Protocol and introducing a new set of principles on how it operates. Such an agreement must preserve Northern Ireland’s constitutional status. Brussels appears to be closer to understanding this. But it is unlikely to offer enough to restore the NI Assembly and save the Good Friday Agreement.