David Frost, the UK’s Brexit minister, has warned there is a big gap between the EU and the UK negotiating positions as he enters talks with the European Commission over changes to the arrangements for trade between Great Britain and Northern Ireland.
The EU has offered to sweep away most customs and health checks on animal and plant products entering Northern Ireland under a revision of the current system but both sides privately recognise that fundamental differences remain between their visions for the future.
The EU has been “preparing for the worst”, with options ranging from imposing tariffs on UK imports to termination of the entire trade and cooperation deal in case Downing Street decides to kill the talks and suspend the current Northern Ireland protocol through triggering its article 16.
A group of EU member states known as the Washington Group met the Brexit commissioner, Maroš Šefčovič, on Monday to be briefed about the proposals he announced on Wednesday. At that meeting, France, Germany and the Netherlands, with support from Spain and Italy, pushed for tough measures to be prepared.
One diplomatic source aware of the discussions played down the chances of the entire deal being terminated, however. “You would immediately lose all the main levers in the trade and cooperation agreement that can be pulled to put pressure on the UK, everything from tariffs to energy supply,” the source said. “It would be a short-term move and not in the EU’s interests. But tariffs in the short term is certainly something that people can get behind.”
Frost, while in Brussels for a lunch meeting with Šefčovič at the start of negotiations on revisions to the current protocol, said he had been “quite encouraged” that the EU had “definitely made an effort in pushing beyond where they typically go in these areas”.
Within the UK’s Brexit withdrawal agreement with the EU, the Northern Ireland protocol lays out arrangements that effectively keep Northern Ireland in the single market, drawing a customs border between it and the rest of the UK, with checks on goods passing from Great Britain to Northern Ireland.
That means there is no requirement for checks across the UK's land border with Ireland. The 1998 Northern Ireland peace deal requires keeping the land border open and that there be no new infrastructure such as cameras and border posts.
However. both the British government and the European Union recognise that the implementation of this deal has triggered the disruption of supply chains, increased costs and reduced choice for consumers in Northern Ireland.
The rules means that goods such as milk and eggs have to be inspected when they arrive in Northern Ireland from mainland Britain, while some produce, such as chilled meats, cannot be imported at all. This is because the EU does not want to risk them entering the single market over the land border and then being transported on.
What is article 16?
Article 16 is an emergency brake in the Irish protocol, that allows either side to take unilateral action if the protocol is causing “serious economic, societal or environmental difficulties that are liable to persist”, or diversion of trade. Serious difficulties are not defined, giving both sides leeway for interpretation.
This would launch a process defined in the treaty as “consultations … with a view to finding a commonly acceptable solution”. Article 16 is meant to be a temporary timeout, not an escape hatch.
But he offered some words of warning over the fundamental differences between the EU and Britain over the policing of the laws and regulations in Northern Ireland, which he has previously said come down to a matter of sovereignty.
He said: “We’ve got the commission proposals. Obviously ours are on the table as well, so we’re looking forward to good discussions and there’s a lot of work to do because there are gaps. The governance arrangements don’t work – we need to take the court out of the system as it is now and we need to find a better way forward. So all this is for discussion and I’m looking forward … but our position is clear, and it always has been, as set out in the command paper.”
The crucial issue is whether EU law in Northern Ireland will continue to be policed by the European court of justice (ECJ). The UK government believes it has been proved to be politically unsustainable for Northern Ireland to be under laws supervised by an EU court over which its own people do not have a say.
The UK government has shown little appetite for a possible compromise solution similar to the one offered to Switzerland, in which the ECJ would have an advisory role in disputes over the interpretation of EU law but where issues would be initially settled through an arbitration court.
The leader of the DUP, Sir Jeffrey Donaldson, has said the EU proposals “fall far short of the fundamental change needed”.
An EU official said regarding the compromise suggested by some thinktanks in recent weeks: “The Swiss-inspired model is that the court of justice remains at the apex of the system. I’m not sure how much that will change the deal from the UK perspective.”
Asked about the possibility for retaliatory action should the UK use article 16 to suspend parts of the Northern Ireland protocol, a European Commission spokesperson would not be drawn. He said: “What we are concentrating now on, is finding solutions for the people in Northern Ireland.”
Meanwhile, the Jersey government has hit back against threats made by France to limit or cut off energy supplies to the island in a row over post-Brexit fishing rights.
“It would be unprecedented for a member country of the G7 to seek to interfere with that private contract and cut off the electricity to Jersey’s hospital and schools. Even if that were to take place then we would revert to a power station on the island but it’s carbon footprint is excessive and that is not something we want to do,” the minister for external affairs, Ian Gorst, told reporters.
He said he did not know why France had threatened its energy supply given that they were still in “dialogue” with fishers over licences and such a move would be “disproportionate” and potentially a breach of contract.
Jersey had awarded 95 licences to French fishers and was giving a further 75 fishers 30 days to supply sufficient evidence to prove they were genuine and had fished for 10 days during the past three years.
Gorst noted that the number of applications for licences was much lower then the 350 licences it had issued under the pre-Brexit Bay of Granville treaty.