With the different interpretations of how the Northern Ireland (NI) Protocol is being presented by the EU and UK, it is starting to look like the announcement of a Trade and Cooperation Agreement (TCA) on Christmas Eve wasn’t really a deal.
Instead, it is beginning to look more like the heads of an agreement around which the detail still has to be filled in.
The problem is that this arrangement is now the basis for trade between the EU and UK, and is complicated by the fact that the EU works to the letter of the law whereas the UK appear to have been expecting a more à la carte approach. The problem with this variance is on display, with the implementation of the NI Protocol and the issue is further complicated by becoming embroiled in the wider constitutional position of Northern Ireland as part of the UK, while simultaneously an active part of the EU single market.
Trade negotiations are a long, drawn-out process in which officials give effect to political direction on the parameters of a trade deal
Regrettably, these difficulties were foreseeable but the political urgency on the part of the UK to separate completely from the EU meant that insufficient time was available to put in place and test new border control processes.
Trade negotiations are a long, drawn-out process in which officials give effect to political direction on the parameters of a trade deal. In the case of CETA between the EU and Canada, it took seven years, and that is without the volume of trade or the complexities of the Irish border as is the case with the UK. A longer transition period would have been the ideal way to sort out the issues but that was not to be.
What we have now is an agreement that is interpreted differently by the EU and UK and is not functioning to the satisfaction of either.
The concept works perfectly for farming and businesses with NI exporters of dairy, meat and fish enjoying uninterrupted access to both the UK and EU market
What is needed now is a renegotiation of how the NI Protocol can be adapted to something that isn’t exactly what either the UK or EU wants but will function in a way that protects the integrity of both the EU and UK single markets.
The concept works perfectly for farming and businesses with NI exporters of dairy, meat and fish enjoying uninterrupted access to both the UK and EU market unlike their counterparts in Britain.
Attraction of veterinary alignment
Ideally, the UK would see the benefit of aligning with the EU on at least an interim basis until it had a reason to split. This would solve the problem exporters from Britain are experiencing in trade with the EU. More importantly, it would avoid the problems Irish exporters will experience if the UK goes ahead with the implementation of full border controls on imports from 1 October.
It is somewhat curious that the UK was in such a hurry to depart the single market and customs union transition period without being fully prepared to implement the controls it demanded.
Transactions between Britain and NI will, on many occasions, be for multiple transactions of small volumes of product
The next best option is for the EU to revisit the controls required on products of animal and plant origin moving from Britain to Northern Ireland.
The current EU position is that because it is entering the EU single market, then it has to be subject to the same controls as anywhere else in the world. This is where creativity is required.
Transactions between Britain and NI will, on many occasions, be for multiple transactions of small volumes of product, yet a 2kg block of cheese coming from Britain to a delicatessen in NI requires the same certification and inspection controls as a 20t container.
To make the protocol work, the EU needs to agree a risk-based approach with the UK that dramatically reduces the controls required for produce entering NI from the rest of the UK.
There is no point in the EU protesting about what was agreed or how there cannot be separate rules.
The reality of life is that the EU needs the UK to operate the border controls at NI points of entry and this may involve diluting principles.
The alternative is a standoff whereby the UK disengages and an increasingly disinterested EU concentrates on the legal enforcement route. This is cumbersome and sanctions will only make EU–UK trade even more difficult than it already is.
Watching all this with concern is the Irish Government because it is the one member state that is actively involved in this problem.
Pragmatic solutions combined with pragmatic politics are required to give effect to what was always going to be a second best platform for trade.