What is the Northern Ireland Protocol and why is it needed?

Britain is warning that it will move to tear up parts of the Northern Ireland Protocol unless Brussels caves in to its demands to renegotiate the Brexit treaty.

Here we tell you everything you need to know about the Protocol, how Boris Johnson wants to change it and whether or not the UK and EU are headed for a trade war.

What is the Northern Ireland Protocol?

The Northern Ireland Protocol is part of the Brexit Withdrawal Agreement and was negotiated in 2019.

It is the treaty that created the Irish Sea border between Britain and Northern Ireland.

It means that Northern Ireland continues to follow about 300 EU rules after Brexit but it also grants the country a unique dual access to both the EU and UK markets.

Why is it important?

The Protocol prevents the need for a hard border on the island of Ireland, which would be highly controversial because of The Troubles.

The EU carries out checks on non-EU goods and animals entering its territory to ensure they meet its rules and standards.

Moving checks on non-EU British goods to the Irish Sea means the border controls do not have to be carried out at the invisible frontier between Northern Ireland and Ireland.

So what’s the problem?

Unionists fear the Protocol is driving a wedge between Northern Ireland and the rest of the UK.

The DUP claims the checks are driving up the cost of living but this is disputed by other parties in Northern Ireland, which claim the country’s special status in the Single Market has shielded its economy.

The British Government argues that the Protocol is having a chilling effect on trade from the rest of the UK, which is Northern Ireland’s principle trading partner.

Supply chains are shifting to EU suppliers to avoid the extra checks, which London says is unacceptable trade diversion.

Boris Johnson has also said that the Protocol is undermining the Good Friday Agreement because it does not have the support of unionists.

This is hotly contested by supporters of the agreement who see it as mitigation against the consequences of Brexit.

What is being done about it?

The UK set out a list of demands to rewrite the Protocol in a July command paper. These included no checks on British goods meant for Northern Ireland only and for the role of the European Court of Justice to be stripped out of the deal.

Brussels responded in October, offering to cut a number of the customs checks on British goods in return for bolstered market surveillance which would show they were not crossing the invisible border.

The EU also agreed an effective standstill on grace periods foregoing checks on certain products while negotiations over the Protocol continue and to change its law to protect the supply of medicines from the NHS to Northern Ireland.

Britain wants the Protocol overhauled but the EU is adamant it will not be renegotiated wholesale and any solutions have to be found within the legal framework of the original agreement.

Progress since has been slow and talks were disrupted by elections to the Northern Ireland Assembly and the war in Ukraine.

Why is the Protocol back in the news?

The DUP has refused to enter into power sharing in Stormont with Sinn Fein after elections that made the supporters of Irish reunification the biggest political party in Northern Ireland for the very first time.

The DUP made its opposition to the Protocol central to its campaign and is blocking the restoration of the Northern Ireland Assembly until it is removed or replaced, which means the Executive cannot tackle problems such as the cost of living and healthcare.

The Government is also keen to get UK-EU negotiations restarted after the elections. It has told the European Commission it needs a new negotiating mandate from EU capitals so it can offer more in the talks.

Boris Johnson has said the treaty was negotiated before the trade deal with the EU was agreed and before the pandemic and cost of living crisis and needs to be revamped to take them into account.

London has warned it will unilaterally override parts of the Protocol unless its demands are met.

What does Boris Johnson want changed?

The Government wants all British goods entering Northern Ireland to be treated as if they are staying in the country unless they are recognised as being at risk of crossing the border.

London wants to use commercial data to show trade flows of goods, while Brussels insists it should be state collected information.

Mr Johnson wants to boost a trusted trader scheme to further reduce checks and make grace periods foregoing checks on goods such as sausages or commercial parcels permanent.

He wants the role of the European Court of Justice to be stripped out of the Protocol and for dispute resolution to be based on the system in the free trade agreement with Brussels.

According to analyst Sam Lowe, the UK also wants Northern Irish businesses to have the choice of their products conforming to British or EU standards. At present, they must conform to EU standards.

The Government would also like a standstill on new EU rules taking effect in Northern Ireland.

Can the Government rip up the Protocol?

It says it can, but the EU warns doing so would break international law and damage the UK’s reputation.

The UK has told Brussels it will publish legislation this week allowing ministers to unilaterally disapply parts of the Protocol unless its demands are met.

It has previously threatened to trigger Article 16 of the Protocol in earlier disputes with the EU over the treaty.

What is Article 16 of the Protocol?

Article 16 is a safeguard clause in the protocol, which the UK or EU can trigger if they believe the Brexit rules in the province have caused “serious economic, societal or environmental difficulties” or a “diversion of trade”.

What changes if the Government publishes legislation to override the Protocol?

Not much in the short term. Brussels is unlikely to react until the law is actually passed or takes effect.

The bill is likely to take months to get to that stage and appears certain to face opposition in the Lords.

This means the Government can publish the legislation and use the time before it becomes law for more talks with Brussels over the Protocol.

What will the EU do about it?

The EU has previously threatened a trade war or even the cancellation of the free trade agreement with the UK after warnings Britain could trigger Article 16 of the Protocol.

Dublin has warned the EU will have to respond if the legislation overriding the Protocol takes effect. Unilateral action has damaged trust between London and Brussels and makes further negotiations more difficult, Ireland has said.

To trigger Article 16, the UK must notify the European Commission of its intentions, including how it intends to address the difficulties it believes have been caused by the Northern Ireland Protocol.

The two sides then immediately enter into a month-long consultation period to discuss the British proposals.

Downing Street is not allowed to introduce its changes to the Protocol during this time, unless there are “exceptional circumstances”, where the Government believes immediate action is needed.

The EU’s response will depend on how far the UK intends to go after triggering Article 16.

Haven’t we been here before?

Yes. The Government published the UK Internal Market Bill in 2020 during trade negotiation with Brussels.

The Internal Market Bill gave the ministers power to disapply parts of the Protocol in case trade talks with the EU failed. It was dropped when the trade negotiations finished successfully.

Lord Frost’s threats to trigger Article 16 of the Protocol were credited with bringing Brussels to the negotiating table over the treaty last year.

Brussels can be slow to negotiate and must have the support of all 27 of its member states.

The Government seems to believe that only threats to tear up the Protocol can motivate the EU to get talking and make concessions in what has been dubbed the “madman strategy”.

Will there be a deal or will it be a trade war?

Boris Johnson is at pains to point out that his preference remains a negotiated solution with Brussels.

In an opinion piece for the Belfast Telegraph, he held out an olive branch to the EU by dismissing calls for the Protocol to be ditched altogether.

He suggested a reformed Protocol, with unionist support, would be passed in a 2024 consent vote Stormont has on whether to keep the treaty.

However, he does make clear that changes - some of which will be difficult for Brussels to grant - are needed and that he will take action if necessary.

“There is without question a sensible landing spot in which everyone’s interests are protected,” he said, before promising: “We will always keep the door wide open to genuine dialogue.”

Given his conciliatory language, I'd suggest the likelihood is that the EU and UK will agree a deal eventually.

This article is kept updated with the latest information.