Euro Channel: Brexit’s back (as if it ever left)

Brexit is back, negotiations and all. Brexit Minister, Lord Frost and EU officials are embroiled in a new stand-off, with Britain calling for the Northern Ireland Protocol (NIP) – the sensitive compromise with the EU to prevent a hard border – to be replaced.

Frost blames the NIP for disrupting trade and inflaming political unrest. The EU said there is no alternative to the agreement and is concerned Britain is reneging on its international treaty. Since, the EU has moved their position, acknowledging there are issues and offering reforms.

The bloc has offered to reduce customs checks on goods arriving in Northern Ireland by half and inspections on many food products by eighty per cent. The changes also remove the prospect of certain British produce, like Cumberland sausages, being banned from export to the region. But a key sticking point is the European Court of Justice’s (ECJ) role in policing the Protocol – which the British government want to remove. These form the basis of the new intensive talks. If the talks fail, the U.K has threatened to unilaterally suspend parts of the existing Protocol, using the power granted in Article 16.

A welcome distraction?

With Lord Frost rejecting the proposals and Dominic Cummings claiming the UK government always intended to “ditch” the NIP, it is hard to imagine that it will end well. This is happening against a backdrop of the UK government failing to meet the challenges it would face following Brexit. With the shortage of HGV drivers, rising energy prices, inflation, fuel shortages and empty supermarket shelves another fight with the EU creates a good distraction. Furthermore, considering the UK’s request of removing the ECJ – which they know is a Brussels redline – could see talks fail and a trade war ensue between the UK and the EU.

It is unlikely that the EU will concede on the ECJ’s role, especially when its supremacy in interpreting EU law is coming into question – as seen by a recent ruling by the Polish Supreme Court. Considering serious challenges internally, the EU is less likely to budge on this issue in its talks with the UK. This would only serve as further ammunition for the UK to abandon trade talks and move to abolish the NIP and pin the blame on the EU in the process.

Could there be a compromise?

If Lord Frost’s huffing and puffing is a negotiation tactic to gain more compromise from the EU then it would be possible to see both sides alter the current agreement rather than ripping it up. Britain proposes an arbitration system to replace the ECJ, of the kind it negotiated in the UK-EU Trade and Cooperation Agreement, where the ECJ is not the final arbiter of disputes. Several commentators have referred to arrangements in other international agreements between the EU and third countries that result in the ECJ disappearing into the background, rather than removing it completely. There have been references to the Swiss model, while the Financial Times mentioned the EU-Ukraine Association agreement.

All we can do is observe.

Either the battle is an ideological one, where they see the NIP as the last impingement on the UK’s sovereignty and will look to trigger article 16 or, they believe they are making progress by being unreasonable whilst engaging with the reasonable EU. Hopefully, it is the latter, as threatening repudiation of the NIP’s provisions whilst provoking a trade war seems like a very risky strategy considering the domestic challenges Boris Johnson is facing. Furthermore, it will create significant problems for Ireland as the breakdown of the NIP will see the EU lose control of goods coming into the single market. This may cause the introduction of border control either within Ireland or between Ireland and Europe – this would, of course, undermine the Good Friday Agreement. Frost’s and Johnson’s Brexit bravado may come back to bite them. Only time will tell.

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