Comparing the UK and the EU’s approaches to the NI/Ireland Protocol – HRC Briefing

November 18, 2021

Nearly a year after the end of the transition period (31 December 2020), the Northern Ireland/Ireland Protocol is at the centre of continuing political instability and divisions. While the United Kingdom (UK) and European Union (EU) appear on face value to be united in their desire to overcome their ongoing disagreements regarding the Protocol, the reality is that the UK and EU approach to the future of the Protocol differs greatly and potentially forewarns of an even more difficult future ahead.

Both the EU and the UK have produced their proposed solutions to the perceived problems with the Protocol that have been identified since the Protocol started operating. The UK produced a Command Paper outlining their proposals on simplifying the operation of the Protocol and ensuring Northern Ireland (NI)’s place in the UK’s Internal Market. In turn the EU published four non-papers (meaning non-legislative documents) outlining the EU’s proposed practical solutions to the problems with the Protocol, such as customs checks, paperwork transparency in how the Protocol operates and is governed.

Both sides have expressed willingness to engage in productive conversations, but so far negotiations have been strained. On the UK side Lord Frost has committed to a December 2021 deadline for the UK and the EU to reach a mutual agreement on the future of the Protocol. In the meantime, there have also been threats to collapse Stormont if the perceived lack of progress on the Protocol continues.

For the UK their end goal seems to be a renegotiation of substantive elements of the Protocol and have called for ‘new and durable arrangements’ to be agreed between the UK and the EU. With the UK Prime Minister indicating that in the case of negotiations failing Article 16 could be triggered and that the conditions for this have already been met. For the EU renegotiation of the Protocol is not something they will agree on. The Protocol must stay and any accommodation to be reached with the UK must be within its broader framework.

This makes the future of the Protocol very uncertain in a political environment that includes a possible collapse of Stormont, early elections in NI, and a unilateral triggering of Article 16. The EU may also renew the infringement proceedings against the UK for unilaterally extending grace periods and violating aspects of the Protocol.

The contrast between the two approaches being taken by the EU and UK are substantial. The details of the respective positions can also be confusing for members of civil society and the public who are concerned about how the current discussions are developing. The Consortium has developed a short briefing (available for download below) which sets out the main differences in the content and approach of the two sides. We also raise some general broader concerns about what some of the proposals might mean in the long term if parties to the Withdrawal Agreement  assume that elements of the NI Protocol are now open for change so soon after it has come into operation.