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UK Command Paper

The UK Government’s request to renegotiate the Protocol, published in its Command Paper on July 21st, is the fourth time the UK Government has requested a renegotiation of what it had previously agreed.

Lord Frost’s insouciant remarks about renegotiation being normal do not bear scrutiny. The UK’s a la carte approach is completely unsustainable and genuine confidence-building measures are required at this point.

The first request for renegotiation came in 2019. Brexit enthusiasts will recall that the original UK-wide backstop was agreed with the Government of Theresa May in 2017. When that was rejected multiple times by the UK Parliament, May was replaced by Boris Johnson.

In August 2019, Prime Minister Johnson wrote to Donald Tusk, the then President of the EU Council, indicating the UK Government’s wish to renegotiate elements of the Withdrawal Agreement as they affected Northern Ireland.

This was followed by an Explanatory Note in October 2019 outlining the UK’s approach to renegotiation. Notably, the UK Government proposed a “zone of regulatory compliance across Northern Ireland and the EU” which would involve “regulatory checks applying between Great Britain and Northern Ireland”.

The renegotiation that followed produced the current Protocol which was ratified by the UK Parliament in late 2019 in its European Union (Withdrawal Agreement) Act setting up the regulatory checks required even as Johnson claimed there would be no non-tariff barriers between GB and NI.

The second renegotiation came during the transition period in 2020. Although the UK withdrew from the EU on the night of January 31st 2020, the Protocol didn’t come into effect until January 1st 2021.

In May 2020, during this transition, Michael Gove published a UK Government Command Paper titled ‘The UK’s approach to the Northern Ireland Protocol’ which acknowledged that some new processes and formalities would be required on goods entering Northern Ireland from Great Britain.

The less said about the Internal Market Bill the better. However, in December 2020, the Joint Committee agreed a further road map for implementation of the Protocol including grace periods for certain products like chilled meats and medicines. The second UK Command Paper on the Protocol was published alongside this agreement. It stated that the UK was now in a position to “deliver in full on its commitments to the people of Northern Ireland”.

The UK Government said in the Command Paper that the package of new measures provided “the basis to give effect to the Protocol in the pragmatic and proportionate way intended”.

The third request to renegotiate came early in 2021 before the ink was dry on the December agreement when Michael Gove requested an ‘urgent reset’ as well as extensions to the previously-agreed grace periods until 2023 and other mitigating measures.

Rather than wait for an agreement, the UK unilaterally extended grace periods due to expire at the end of March until the end of October 2021.

The EU received the third UK Command Paper on the NI Protocol and the fourth request for a renegotiation on 21st July 2021.

So what do we do in September?

There are positives in the Command Paper including the recognition that regulatory checks will have to be at the Irish Sea border and not the Irish land border. The EU has committed to reviewing its contents over the summer.

But the obvious dilemma for the EU is that there is no guarantee that a further negotiation won’t lead to demands for a fifth renegotiation.

People who followed the Northern Ireland peace process over recent decades will remember the phrase ‘confidence-building measures’.

Such measures don’t have to be substantial but can demonstrate a change of approach and rebuild trust.

Here are some suggestions.

Firstly, the UK should provide the trade data that it agreed to provide to the EU through access to IT systems so that the true nature of GB-NI trade can be assessed.

Secondly, the UK should acknowledge that the EU measures announced on 30th June are a significant step in the right direction as well as the EU decision on 28th July to suspend legal proceedings arising from the unilateral extension of grace periods.

Thirdly, the UK should agree to co-host an Investment Conference for Northern Ireland to tap into the potential of the Protocol to deliver real benefits for all communities in Northern Ireland.

Fourthly, the UK should proceed with the establishment of the EU-UK Joint Parliamentary Assembly under the Trade and Cooperation Agreement as well as a Northern Ireland sub-committee under the Assembly to address issues of democratic oversight.

Finally (and I’m not holding my breath on this one), it would help generally if the UK dialled down the anti-EU rhetoric.

The UK and the EU have a much broader joint agenda, particularly delivering for the planet at COP26. Settling the Protocol is a critical element in replacing rivalry with partnership.

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