UK Government sets out proposals on Ireland/NI Protocol

The search for “Brexit breakthroughs” has been a familiar one since 2016. Five years since the referendum and a Withdrawal Agreement and Trade and Co-Operation Agreement later, the UK’s current and future relationship with the EU continues to greatly exercise decision makers.

Just over six months since its implementation on 1 January this year, Lord David Frost, UK Cabinet Minister and chief Brexit negotiator, and Brandon Lewis, Secretary of State for Northern Ireland, this week made simultaneous statements in both Houses of Parliament on proposed changes to the Ireland/NI Protocol.

On Article 16 - which provides both the UK and the EU with a unilateral power to take action should the application of the Protocol give rise to ‘serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade' – the UK view is that the circumstances to trigger it have been met, but that its preference is to focus on finding solutions through renewed negotiations with the EU.

The statement was accompanied by a Command Paper which set out the concerns the UK Government believe need to be addressed:

1. ‘Removing the burdens on trade in goods within the UK while managing the real risks to the EU Single Market’
2. ‘Ensure that businesses and consumers in Northern Ireland can continue to have normal access to goods from the rest of the UK on which they have long relied’
3. ‘Normalise the governance basis of the Protocol so that the relationship between the UK and the EU is not ultimately policed by the EU institutions including the Court of Justice’

Some of the proposed solutions in the Command Paper include:

• New institutional arrangements to improve governance of the Protocol, with the EU and the UK being equal partners.
• Legislation which applies to Northern Ireland from the EU should involve robust mechanisms to take the Northern Irish context into account and provide for consultation with relevant bodies, such as the Northern Ireland Assembly, businesses and the wider population.
• UK traders would have the primary responsibility to declare whether the final destination of those goods was Northern Ireland, or if they were moving on to Ireland, or the rest of the EU.
• The full SPS requirements of EU law would be applied for goods going to Ireland and the UK would enforce them. However, this would mean risk-based and intelligence-led controls on consignments would still be required, as they are imported into Northern Ireland.

The Command Paper also made clear that proposals are consistent with the need to maintain an open border on the island of Ireland. The UK Government is also proposing the implementation of a standstill period, to allow time for negotiations and to avoid potential cliff edge scenarios as grace periods end.

With reactions to the Command Paper by political parties, the EU and wider stakeholders including the business community reflecting firmly established positions on both Brexit and the application of the Protocol, what can we expect the next few months to hold?

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