Brexit: What is the Northern Ireland Protocol and why is it so contentious?

·6-min read
A lorry at Belfast Harbour, as controversy over Brexit’s Irish Sea border deepens (Brian Lawless/PA) (PA )
A lorry at Belfast Harbour, as controversy over Brexit’s Irish Sea border deepens (Brian Lawless/PA) (PA )

The UK could suspend the Northern Ireland Protocol to safeguard the peace process, the Brexit minister has warned.

Lord Frost said the protocol, agreed with the EU as part of the UK’s divorce settlement, was not working and that fundamental change was necessary if it was to survive.

He said the UK was prepared to trigger Article 16, which allows either side to override large parts of the agreement, if that could not be achieved in a keynote speech in Lisbon.

On Wednesday, the EU outlined proposals to reduce trading disruption and friction witnessed since the protocol came into effect in January.

However, the 27-nation bloc has made clear it does not intend to move on a key UK demand - removing the role of the European Court of Justice in overseeing the protocol.

But what exactly is the protocol and why it is so contentious?

– What is the Northern Ireland protocol?

Part of the Withdrawal Agreement, it was how the EU and the UK overcame the main sticking point in the Brexit divorce talks – the Irish border.

To avoid disrupting cross-border trade and a return of checkpoints along the politically sensitive frontier, both sides essentially agreed to move new regulatory and customs processes to the Irish Sea.

That means the checks are now focused on trade between Great Britain and Northern Ireland, with goods continuing to move freely within the island of Ireland.

Trade between Northern Ireland and Great Britain is largely unaffected by the protocol.

The red tape applies on movement in the other direction. Since December 31, a range of regulatory animal and plant safety checks have been in operation, including physical inspections for a proportion of arriving freight at new port facilities.

Customs declarations are also required for incoming commercial goods.

– How does the Northern Ireland protocol work?

Northern Ireland remains in the EU single market for goods. The region also applies EU customs rules at its ports, even though it is still part of the UK customs territory.

The protocol also sees Northern Ireland follow certain EU rules on state aid and VAT on goods.

– Who is unhappy about it and why?

Businesses who move goods from GB to NI have been saddled with added costs and reams of new red tape due to the protocol.

There has undoubtedly been disruption, as many traders have encountered problems shipping goods across the Irish Sea.

In the early weeks of 2021, this was evidenced by depleted supermarket shelves in Northern Ireland.

While the bureaucracy has continued to hinder trade since, many businesses have adjusted and adapted their processes to try to minimise the impact of the protocol.

Politically, unionists and loyalists are furious on a constitutional level.

They believe the arrangements have driven a wedge between Northern Ireland and the rest of the UK, with the protocol forcing an economic reorientation with the Irish Republic.

– How has that anger manifested itself?

Unionist politicians have demanded that the UK government intervene to radically redraw the protocol or ditch it completely.

A protest sign near Belfast’s harbour (PA)
A protest sign near Belfast’s harbour (PA)

They have called on the Prime Minister to trigger a mechanism within the protocol – Article 16 – to unilaterally suspend aspects of its operation in order to enter fresh negotiations with the EU on the problems.

While the government has said that the conditions for triggering Article 16 had been met, it stopped short of invoking the mechanism, instead urging the EU to agree to changes.

The protocol has undoubtedly been a factor in the flux that has been witnessed within unionism since the turn of the year.

This has been shown by the chaos engulfing the DUP in recent months, when two leaders – Arlene Foster and then Edwin Poots – were ousted in successive internal revolts.

Away from the political sphere, simmering discontent within the loyalist community spilled over in April into street violence, with the protocol a significant factor in rioting that broke out in various locations across Northern Ireland.

While there have been fears of further disorder around the summer Protestant loyal order parading season, this has yet to materialise.

With Boris Johnson having previously pledged never to put economic barriers in the Irish Sea, unionists and loyalists view the protocol as a “betrayal” of the Brexit they wanted.

Boris Johnson (PA)
Boris Johnson (PA)

They feel the whole of the UK has not left the EU on the same terms, with Northern Ireland left behind, partially trapped within European structures.

All this is playing out in a year that Northern Ireland marks the centenary of its foundation and as republicans continue to press for a referendum on Irish unity.

– What about the other main parties in Northern Ireland?

Sinn Fein, the SDLP and Alliance were all opposed to Brexit. Those Remain parties insist the problems being experienced in Northern Ireland are a consequence of Brexit, rather than the protocol itself.

While acknowledging that issues with the protocol need to be addressed, they oppose any move to bin the arrangements entirely.

They also highlight the potential benefits of the protocol, in particular the unique status it gives traders in Northern Ireland to sell in both the UK internal market and EU single market without restriction.

– Is the protocol fully operational?

No. The agreement came into force on 1 January 2021 and is now part of international law.

However, late last year the UK and EU agreed a range of grace periods designed to reduce the level of Brexit bureaucracy in the initial months of operation.

Supermarkets and other big food retailers were given three months to adjust to the new food checks.

From April 1, they would have been required to produce vet-approved export health certificates for every animal-based food product they shipped to Northern Ireland.

But before this exemption period ended, the UK government stepped in and unilaterally extended that grace period to the autumn.

Some products are to be prohibited from entering Northern Ireland altogether under single market rules.

Sausages and other chilled meats, which are on that banned list, had been granted a specific six-month grace period to enable their import from GB to continue until June, using temporary certificates.

Taking a differing stance from the unilateral moves of the spring, the UK agreed to extend that exemption with the EU for a further three months.

In regard to the movement of medicines from GB to NI, there is a 12-month grace period in place, with new regulatory processes due in 2022.

On Wednesday, the EU unveiled a series of proposals that would slash the red tape burden on Irish Sea trade created by by the protocol.

The European Commission measures would see an 80 per cent reduction in checks envisaged for retail agri-food products arriving in the region from Great Britain.

The proposed changes to the contentious post-Brexit trading arrangements would also remove the prospect of certain British produce, including Cumberland sausages, being banned from export to Northern Ireland.

The plan also includes a 50 per cent reduction in customs paperwork required to move products into Northern Ireland from Great Britain.

However, the proposals contained in four separate papers published by the bloc do not offer any concession on a key UK Government demand, the removal of the oversight role for the European Court of Justice (ECJ).

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