Britain and the EU are on a Brexit collision course – but there is a way out

After days of rising tensions, the European Union has agreed to drop most checks on supermarket goods arriving in Northern Ireland from Britain. But it still fears that Boris Johnson will reject the new offer.

According to Britain’s Brexit negotiator Lord Frost, speaking on Tuesday, the Northern Ireland protocol is not working – either in terms of its impact on trade or in terms of the hostility towards it from parts of the unionist population.

And so, the government presented a new legal text for a new protocol that would not only reduce the need for checks on goods travelling from Great Britain to Northern Ireland, but also minimise the role of the EU’s court in overseeing the agreement.

Frost’s claim that the European commission has been inflexible in its interpretation of the protocol has some merit. After all, the offer from European commission vice-president Maroš Šefčovič could surely have been proposed as soon as the practical implications of the protocol were becoming clear. That the commission is only coming up with these proposals now will, apart from anything else, simply strengthen the impression held by some in Johnson’s government that if they talk and act tough, the EU will eventually cave. And one can only imagine what might have happened had the EU shown the same kind of flexibility to Johnson’s predecessor, Theresa May.

The EU’s new “bespoke Northern Ireland specific solution” means checks would be removed on 80% of lines on supermarket shelves, with sourced British sausages no longer at risk of being prohibited. And lorries bound for Northern Ireland carrying meat, dairy or confectionery would have to provide only one health certificate for each journey, rather than one for each product line.

On the surface, then, it would appear that the commission is responding to UK concerns and trying to make the protocol work for both parties. But this, it seems, is no longer enough: Lord Frost says he no longer believes such technical fixes are sufficient. Yet it is here that his arguments are most flawed.

He says the protocol was negotiated under duress. Even if it is true that the pre-election parliament of 2019 had “radically undermined the government’s negotiating hand”, it’s ultimately up to ministers whether or not they sign a treaty. Johnson had a choice – to sign this deal, negotiate another, or not sign at all.

Second, Frost says: “Maybe there is a world in which the protocol could have worked, more sensitively implemented. But the situation has now moved on.” It’s too late, in other words, to try to fix a flawed agreement because some parties no longer trust it. But is this credible? If the protocol has been the source of dissatisfaction, particularly among Northern Ireland’s unionists, then surely steps to make it operate differently, and more in keeping with their wishes, might make them reconsider?

Which brings us to the nub of the problem. The government now insists that key institutional provisions – notably the role of the European court of justice – should be revised. This demand has led many observers to conclude that Britain is interested not in resolving problems but in collapsing the negotiations (a suspicion hardly allayed by remarks this week by Dominic Cummings, who said the government always intended to ditch the protocol).

Frost says it is the “facts on the ground” – ie trade restrictions and a lack of unionist consent – that matter above all and mean the protocol must be changed. Yet the role of the European court was entirely clear two years ago and has not changed since implementation. It is hard to see how a government can sign up to something one day, and claim it is opposed to it in principle two years later.

And, perhaps most importantly, it is impossible to imagine the EU being willing to even countenance a reconsideration of the role of the court: because Brussels has been adamant form the start that no renegotiation is possible; and because, under the protocol, Northern Ireland is subject to EU law, and the ultimate arbiter of disputes under EU law is … the European court of justice (ECJ).

So where does all this leave us? Britain’s combative approach will cause further irritation in EU capitals.

If, as Frost’s words imply, no amount of technical fixes would suffice, then it is hard to imagine anything other than the current standoff continuing, with the EU possibly restarting legal action against Britain for non-implementation, and the UK government seriously considering launching the article 16 process.

At the same time, however, both sides need a resolution. So maybe, just maybe, Britain will decide to test the EU proposals in practice before deciding on more drastic action. After all, in his foreword to the government’s so-called “command paper” in July, Johnson made much of the problems caused by the implementation of the protocol but said nothing at all about the ECJ.

The Northern Ireland protocol, as the prime minister has stated, represented a “huge compromise” by the UK. Indeed, in negotiating this part of the withdrawal deal, Johnson put his name to something that, in the words of his predecessor, “no British prime minister could sign up to”. His current Brexit minister seems intent on ensuring that everything on which Johnson compromised is removed. This he will not achieve. Yet there is still a chance that a functioning settlement for Northern Ireland may emerge from the current impasse.

Anand Menon is director of The UK in a Changing Europe and professor of European politics and foreign affairs at King’s College London

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