In Plain Sight: London’s long game on Protocol
Having laid down the gauntlet in the House of Commons on Tuesday, the British government has challenged the European Union to renegotiate the Protocol, or the UK will introduce legislation to change it unilaterally. It is immediately clear the EU is not going to give their chief negotiator Maros Sefcovic a new mandate. “Dead on arrival,” says one EU diplomat. When Sefcovic spoke to EU ambassadors on Wednesday, one told him. “Not only do you not need a new mandate, if you asked for one we would not give it to you.”
Diplomats have repeatedly (and wearily) said that Foreign Secretary Liz Truss’s proposals – essentially the UK’s Command Paper from last July – were tried time and time again by the UK, from Theresa May to Boris Johnson, and they were rejected.
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The EU was not caught off guard either. The UK has been briefing individual member states about what was coming. EU diplomats regarded the speech as clever and reasonable sounding – no admission that the UK was going to break international law – but nothing short of an attempt to turn back the clock.
Sefcovic is said to be angry and frustrated that the UK has escalated the dispute by placing a gun on the table when he, and EU capitals, believe that last October’s proposals to solve the problems had unexplored potential, and that that potential has now been dashed.
The EU feels it is being blackmailed, trust has collapsed, London is simply demanding a brand-new Protocol, and the EU’s genuine efforts to find solutions have been dismissed in favour of confrontation.
How things go from here is uncertain. Truss announced she had asked for an EU-UK Joint Committee meeting (in fact, she had made the suggestion by text message the night before), but such a meeting is normally convened when key developments need higher political attention, and it requires days of detailed work. The EU does not regard Truss’s ultimatum as a new development.
“We have no idea when [the Joint Committee meeting] will take place,” says one EU source, “and we’re not even clear if it is taking place. The message from the UK is, we don’t want to talk unless you basically sign up to what we’re suggesting. And at the same time, we’re still open to talk.”
British officials have made it clear that there is no point in talking if the EU insists the October proposals remain the baseline of the negotiations. A growing number of fundamental hurdles now prevail.
EU diplomats regarded Liz Truss’s speech as clever and reasonable sounding but nothing short of an attempt to turn back the clock
The EU feels it is being blackmailed, trust has collapsed, London is simply demanding a brand-new Protocol, and the EU’s genuine efforts to find solutions have been dismissed in favour of confrontation. Also, diplomats in Brussels restate the basic fact that, according to the Protocol – negotiated and signed by the UK – Northern Ireland is part of the EU’s regulatory and customs space, and that can’t be unravelled without casting the Protocol aside.
Britain insists that the existing Protocol is a threat to the Good Friday Agreement and that the Northern Ireland institutions cannot be restored until it is radically changed. None of this augurs well.
Maros Sefcovic is said to be angry and frustrated that the UK has escalated the dispute
EU diplomats say there is a narrow window for a deal, between now and some time before the Westminster parliamentary recess, but only on the basis of the October proposals. Member states already view the four proposals – on medicines, customs, agrifood controls and granting Northern Ireland stakeholders a greater role in implementing the Protocol – as a major shift.
Since they were presented as discussion documents (“non-papers”) they were not take-it-or-leave-it demands, but broad outlines in which both sides could forge a detailed agreement, one that would not change the Protocol, but that had the potential to largely deliver the easements Northern Ireland businesses and citizens were looking for.
The UK has set its sights firmly on replacing the Protocol completely, not simply making it easier to implement
Indeed, whereas Liz Truss told the House of Commons on Tuesday the UK would legislate to introduce a “green channel” so that GB goods going to Northern Ireland and staying there would not be subject to any customs or regulatory controls, the EU has also spoken of an “express lane” that would deliver a similar outcome. The difference is that the EU believes that an “express lane” is contingent on knowing what the risk of goods illicitly crossing the border is, and that that knowledge must be based on a real time access to UK databases that has still to be fully granted. Diplomats complain this access is now 18 months overdue.
Another fundamental blockage is that both sides start from different positions when it comes to risk. The UK argues that the starting point should be that the risk of unregulated goods entering the single market is minimal and that any risk must be proven post facto and then dealt with; the EU believes there is an inherent risk, and that the system should have to prove there isn’t a risk.
Maros Sefcovic told MEPs that the EU would be prepared to change its own customs rules to facilitate a reduction in customs formalities
British officials say the Trusted Trader Scheme (TSS) would put the burden of risk on the companies sending the goods, using commercial and not necessarily UK customs data. Officials stress that the nature of retail consignments bound for supermarkets that only have branches in Northern Ireland, and the threat of criminal sanctions against those companies which don’t comply, should eliminate the risk.
The EU believes whittling down risks requires confidence building on both sides in an organic process: The more real-world experience provides evidence of a low risk, through checks and risk analyses, then the more mitigations can follow.
“The EU position is very much focused on the facts and the risks,” says one Brussels source. “So there would only be mitigations if you’ve got the data to demonstrate that it can work. The logic is based on confidence building measures, where, based on the data, you’re able to relax things gradually.”
Diplomats concede that with 18 months of the Protocol in operation, the lived experience shows that the risk to the single market is lower than originally envisaged, and that this is reflected in the October proposals approach.
Why has the UK abandoned a collaborative process in favour of a major escalation that seems certain to derail the entire process and force a breakdown in relations, not to mention plunge Northern Ireland into a political crisis?
However, the view is that this does not warrant the entire risk model to be overturned, as the UK is demanding. Sources say that the EU has kept some of its “firepower” in reserve in terms of further concessions, because of the database issue and because the UK was simply not fully engaging in the October proposals. That give-and-take is now in jeopardy because of the UK escalation, say officials.
Reducing the number of customs entries for goods entering Northern Ireland would require changes to the Union Customs Code
“None of these options has been fully explored, and I can’t see that suddenly being the case against the backdrop where the UK is putting a gun on the table,” says one source.
This week Maros Sefcovic told MEPs that the EU would be prepared to change its own customs rules to facilitate a reduction in customs formalities, again only if the UK gets back to the October papers. Diplomats say that the Union Customs Code (UCC) only works because it is uniformly and coherently applied across the EU.
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Reducing the number of customs entries for goods entering Northern Ireland would require changes to the UCC, in the same way the EU changed its own legislation on medicines to ensure the free flow of drugs to Northern Ireland. Member states have been aware of this since last October. Again, the complaint is that it has not gotten anywhere because the UK has not engaged.
UK officials dispute this version of events. On 25 October, just 12 days after the Commission proposals were published, David Frost, then Brexit negotiator, told the European Scrutiny Committee that the EU “for the first time, acknowledge that they might be ready to change their own laws in order to deal with the special situation in Northern Ireland.” While the discussions had been “constructive” so far, Frost said “they don’t go far enough.”
David Frost has waged a campaign to locate and then repeal legacy rules as part of the project to allow Britain to set its own regulations
UK officials say the general sweep of the EU’s proposals will not remove the chilling effect whereby the paperwork discourages hundreds of GB companies from shipping goods to Northern Ireland, nor does it diminish the sense of anger among unionists that their sense of British identity is being eroded by a trade border on the Irish Sea.
A fundamental question now is: if the EU was genuinely attempting to reduce the volume of controls on GB-NI goods, why has the UK abandoned that collaborative process in favour of a major escalation that seems certain to derail the entire process and force a breakdown in relations, not to mention plunge Northern Ireland into a political crisis? A more pertinent question is: when did the UK decide to embark on this confrontational approach? UK officials have suggested that Liz Truss made up her mind “in February or March” that the current talks with the EU were pointless and that the UK now had “no choice” but to legislate.
However, it’s clear that since early 2021 the UK has set its sights firmly on replacing the Protocol completely, not simply making it easier to implement.
UK officials suggest Liz Truss made up her mind in February or March that talks with the EU were pointless
Indeed, my understanding is that legislation to do just that has been in preparation long before “February or March” of this year, and even before the EU published its October proposals. According to one source, the Cabinet Office has long been preparing a bill to this end. The bill’s initial function is to do with “retained EU law” which still peppers the domestic statute books.
As a member state, the UK regularly enshrined EU regulations into domestic law and on exiting the EU a lot of that has remained. The then Brexit minister David Frost and the current Brexit Opportunities Minister Jacob Rees-Mogg have waged a campaign to locate and then repeal these legacy rules as part of the project to allow Britain to set its own regulations, but to also cleanse the statute books of anything that smacked of legislation that was not properly British. During that committee hearing on 25 October last year, Frost told MPs: “We must be able to look at the inherited stock of EU legislation in a similarly nimble way if we are going to be able to get the benefits that we aim to get from Brexit.
That is the spirit in which we look at this.”
Without repealing Section 7(a), Downing Street would not be able to change the Protocol without facing court action
Lawyers drafting the legislation are understood to have looked at ways of giving ministers the powers to replace or repeal such retained EU laws with the stroke of a pen. However, it’s understood that lawyers have also been preparing a parallel draft that would allow the government to repeal Section 7(a) of the EU Withdrawal Act, which is what makes the Northern Ireland Protocol a binding part of domestic British law. With that section repealed, UK ministers could then decide which parts of the Protocol they could disapply.
It’s understood this will form part of the legislation that Liz Truss promised the House of Commons on Tuesday. Without repealing Section 7(a), Downing Street would not be able to change the Protocol without facing court action. If this legislation has been in the drafting phase since last September, it would suggest that, at best, the UK has been hedging in the expectation that the EU’s response to last July’s Command Paper did not go far enough.
Or, at worst, that the UK had no intention of engaging in the EU’s efforts to fix things within the existing Protocol, because London wanted it gone altogether. A careful reading of Frost’s interventions in 2021 suggest the latter explanation is possible, if not likely.
Frost said the ‘whole moral basis for the Protocol had been destroyed in unionism’s eyes’
Those interventions must be read in the context of Frost’s bitterly held view that the whole basis of the Protocol – that Northern Ireland should remain in the single market to avoid a hard border – was flawed, and was, worse, a betrayal by Boris Johnson’s predecessor Theresa May. Indeed, unusually for a policy document, the Command Paper opens with sharp denunciation of the rationale for the Protocol.
“The Government does not accept – and has never accepted – that the Northern Ireland Protocol was the only means of protecting the Belfast (Good Friday) Agreement, including this North-South dimension. It is clear, and was clear at the time, that other solutions are foreseeable both within and outside the framework of the Protocol that subsequently emerged.” The real turning point in the UK’s policy towards the Protocol was 29 January last year, when the European Commission invoked the use of Article 16 during a stormy controversy over Covid vaccines.
Until then, London seemed sanguine about its operation, having agreed a series of grace periods in early December 2020. Michael Gove, Frost’s predecessor, had described early difficulties as “teething troubles”. For a taste of how dramatically the UK’s approach changed due to a single episode on the afternoon of 29 January, Frost’s speech to the Policy Exchange on 22 April this year is instructive.
He told his audience: “We had been told repeatedly – incorrectly, but repeatedly – over the last five years that it was impossible to bring into play any new processes at the [Irish] land border. We had been told there could be no new restrictions on North/South movements… “Then the EU turned round and said…that it proposed to ban exports of vaccines across the land border.”
He added: “The whole moral basis for the Protocol had been destroyed in unionism’s eyes. The situation has never recovered. Unionist consent has been destroyed, unionist politics has gone haywire, and the Protocol is never going to be operable as envisaged.”
The trouble is that the EU had proposed no such ban. The offending clause would have meant that vaccines being exported to Northern Ireland from an EU member state would have required an export licence, while they wouldn’t if they had been going to a “regular” member state.
For Frost, a Rubicon had been crossed.
Member states immediately saw the UK reaction as a cynical and overblown weaponisation of a clumsy error. From that moment on, British rhetoric against the Protocol intensified, first that the EU was implementing it in an overly zealous way, and then that it had to be replaced altogether.
Between March and July 2021, there were hostile opinion pieces and statements, with the UK taking the first of three unilateral steps to extend grace periods, all against a backdrop of political tensions and street violence in the North. Despite a joint agreement to extend the grace period for chilled meets, and further flexibilities from the European Commission in June, Frost and Northern Secretary Brandon Lewis took to the Irish Times within hours writing that GB “goods must be able to move as freely as possible within the customs territory of the UK” – a sharp expansion of UK demands. Three weeks later the Command Paper was published.
It demanded sweeping changes to the Protocol and suggested that the UK had only agreed to it under duress (a complaint that Frost has amplified ever since). Maros Sefcovic, Frost’s opposite number, warned the Protocol would “not be renegotiated.” However, prompted by Berlin, the Commission told London it would look at the proposals seriously to see where gaps might be bridged, and technical talks got underway in London in August.
But it seemed that for Lord Frost, a Rubicon had been crossed.
The Command Paper demanded sweeping changes to the Protocol and suggested that the UK had only agreed to it under duress
On 4 September 2021, he told the British Irish Association (BIA) that it was no longer about how the Protocol was being implemented, but it was the Protocol itself. “Solutions which involve ‘flexibilities’ within the current rules won’t work for us,” he said. Article 16 was an option, he said, but the UK now preferred to work on Article 13(8) – “the explicit provision that a subsequent agreement may replace parts of the existing text.”
Frost warned his audience: “You should be in no doubt about the centrality of this problem to our politics and to this Government. The issue needs to be fixed and we are determined to fix it.” Twelve days later, Frost told the House of Lords that the government was preparing the bill to do away with retained EU law.
In another Lords appearance a week later, Frost was now framing the Protocol as a threat to the “integrity of the UK”.
By claiming the UK’s “territorial integrity” was under threat, was Frost preparing the ground for a more dramatic escalation against the EU?
At the Conservative Party Conference on October 4, with the clamour from the DUP and eurosceptics for Johnson to trigger Article 16, Frost now suggested the “territorial integrity” of the UK was under threat (something the Protocol literally rules out). To applause, he said Article 16 “may in the end be the only way to protect our country. our people, our trade, our territorial integrity, the peace process, and the benefits of this great UK of which we are all part.” By claiming the UK’s “territorial integrity” was under threat, was Frost preparing the ground for a more dramatic escalation against the EU?
He knew that Article 16 was a blunt tool to replace the Protocol. It could only be a temporary measure, and the EU would certainly retaliate quickly. There was also the prospect that the Article’s arbitration panel could have found in favour of the EU, meaning possibly more, not fewer, checks.
Also, against a backdrop where he and Rees-Mogg were more fervently championing Brexit benefits and the need to diverge from the EU’s regulatory sphere, Frost knew that such divergence would make the agreed Protocol even tougher. Indeed, Frost would go on to say that the dual regulatory regime, as suggested by Liz Truss this week, would be “a sort of safety valve to avoid [divergence] becoming a problem in future”. Frost also knew that the EU was about to publish its October papers.
Three days after Frost’s party conference speech Maros Sefcovic, who had held extensive meetings with Northern Ireland businesses and stakeholders in Newry and Belfast in early September, told the IIEA the EU was working on “far-reaching” proposals to address the problems of the Protocol. The Daily Telegraph declared an “EU surrender” in the “sausage wars”. DUP leader Jeffrey Donaldson said: “I think the pressure we have brought to bear…has focused minds both in London and in Brussels.”
However, Frost had already told the Tory party conference that “from what I hear, I worry that we will not get a response which enables the significant change we need.” Proposals which kept the UK tied to the existing Protocol would be a problem. With Sefcovic due to publish them on Wednesday 13 October, Frost appeared to torpedo them even before they were published, briefing the Sunday Telegraph that the removal of the European Court of Justice (ECJ) from the Protocol was now “a red line”.
The day before Sefcovic’s proposals appeared Frost told an audience in Lisbon that while the UK would consider them “seriously, fully, and positively”, there would have to be “significant change” if there was going to be a solution.
Truss initially promised a new style and a new constructive spirit in dealing with the EU, but talks with Sefcovic barely made progress
On Wednesday 13 October, Sefcovic told a news conference the proposals would cut customs formalities by 80pc and SPS checks by 50pc. The EU would change its own rules to deal with the medicines issue. Twelve days later, Frost gave his testimony to the European Scrutiny Committee.
He gave the clearest hint yet that work was going on in the background that would eventually come to light in Liz Truss’s speech to the Commons this week. Asked again if he would trigger Article 16, Frost said: “I would possibly give away a little too much about our positions if I was to answer that fully. “All I will say is that it is possible that amendments to our own domestic legal order [my emphasis] might be necessary to provide total clarity for economic actors in Northern Ireland.
“I do not think any Government ever rules anything out when it is a question of the territorial integrity of the country, which this is.” It seems not unreasonable to conclude that Frost was referring to primary legislation, at that point being explored if not already drafted, that would allow British ministers to give effect to the UK Command Paper and to be able to dismantle the Protocol in the future without fear of a court challenge. Even if the government were only going to trigger Article 16, it would need to repeal Section 7(a) of the Withdrawal Act anyway to avoid a court challenge.
The same legal work would be required to dump the Protocol altogether. The technical talks on the four October papers got under way. According to several EU sources, UK officials said the Command Paper (and not the Protocol) had to be the baseline for the discussions.
Frost unexpectedly resigned on 19 December, citing concerns at the direction of travel of the British government on economic policy. He was replaced by Liz Truss, who promised a new style and a new constructive spirit. Inviting Maros Sefcovic to her grace and favour mansion in Chevening, Kent, Truss said “there is a deal to be done.”
Frost resigned over concerns at the direction of travel of the British government on economic policy
However, the EU-Truss talks barely made progress.
On 25 January, the DUP agriculture minister Edwin Poots ordered sanitary and phytosanitary (SPS) checks to be suspended at Northern Ireland ports, and on February 3 the DUP First Minister Paul Given resigned, plunging the North into the stalemate which prevails, despite last week’s election. The DUP has said it will not go into Stormont until the promised legislation becomes law, a posture which has undoubtedly been facilitated by David Frost’s long campaign to have the Protocol radically changed. Frost could not conceal his pleasure at Truss’s speech this week.
“The EU’s refusal to negotiate seriously for so long means there is no alternative to acting to override the Protocol,” he said on Twitter. “I look forward to supporting the Bill through Parliament – hopefully soon.” The question is whether Boris Johnson will oblige and force a complete breakdown in relations with the EU, including a potential trade war. To keep the DUP and European Research Group (ERG) on board, the answer has to be he will.
If this is all really about Johnson’s political survival then he would most likely keep the threat of legislation on the table until the October Tory Party conference, at which point his leadership could be seen as being out of danger.
For the EU and the Biden Administration, the answer is: only if we are really pushed, and more-in-sorrow-than-anger etc.
British officials have said it is the UK’s “strongly preferred option” to have a negotiated outcome. However, it is clear the EU is not going to budge, sticking to the line that there is potential for the October proposals to deliver genuine results. The Elysee Palace and the German Chancellery have both made it clear that Maros Sefcovic’s approach is fully supported.
France in particular is watching the UK’s divergence agenda, and how that might impact upon the Protocol. “The UK has talked regularly about the importance of the EU changing its mandate,” says one EU diplomat. “The EU doesn’t have a mandate. The mandate is the protocol.
We’re not negotiating [the Protocol] with the UK, we’re discussing its implementation.” The EU has also made it clear that the legal action against the UK for its unilateral moves on export health certificates, parcels and pet travel can be unfrozen (officials say there are plenty of other examples of non-compliance which could prompt additional legal measures), and that all of the preparation for retaliatory measures, up to and including suspending the Trade and Cooperation Agreement (TCA), is ready to be dusted down and put on the table. Once again, therefore, it will come down to Boris Johnson.
Boris Johnson has been given the option of dragging the entire process over the edge before
He has entrusted his Brexit policy to hardliners – David Frost, Jacob Rees-Mogg, Attorney General Suella Braverman – and they have successfully brought their confrontational approach to this High Noon moment.
Equally, Johnson has been given the option of dragging the entire process over the edge before: in October 2019, in December 2020, in November 2021. Each time he held back. “At every point along the way, from the Withdrawal Agreement to the TCA, to triggering Article 16 before Christmas, Johnson has pulled back and done a deal,” says Paul McGrade, a former European Commission and Foreign Office official and now senior counsel with the LexComm consultancy.
If this is all really about Johnson’s political survival (and many suspect it is), then he would most likely keep the threat of legislation on the table until the October Tory Party conference, at which point his leadership could be seen as being out of danger. Then he could decide to do a deal based (roughly speaking) on the October proposals to avoid a trade war, and then sail on to the next election. The EU will almost certainly not change its view that the Protocol stays, but then that will leave the DUP once again in the ditch, with an election imminent.
Will Johnson care?