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LONDON — The United Kingdom is bracing for another clash with the EU after laying out plans to rewrite post-Brexit trade rules for Northern Ireland — with or without the bloc’s green light.
Here are the top three things to know about the UK government’s proposal, presented by Foreign Secretary Liz Truss in the House of Commons on Tuesday.
What the UK wants to change
The short answer is: a lot. But not yet.
The UK is promising national legislation to grant ministers the power to change parts of the post-Brexit Northern Ireland protocol it doesn’t like.
The move comes with a promise that the UK is still determined to negotiate changes with the EU before actually using the law – but Truss aired a familiar list of grievances with the establishment on Tuesday.
The protocol, painstakingly negotiated by the UK and EU as part of the Brexit process, aims to protect the bloc’s single market and preserve the hard-won peace on the island of Ireland.
Negotiators agreed at the time that it would be too difficult, for economic and security reasons, to apply EU trade rules on the sensitive land border between Northern Ireland, part of the United Kingdom, and the Republic of Ireland, a member of the EU. Instead, EU customs and health checks would be applied to UK goods on arrival at ports in Northern Ireland, which would continue to be part of the EU’s single market for goods.
The arrangement has proven deeply unpopular with trade unionists in Northern Ireland, who fear it will alienate their region from the rest of the UK economy, while ministers in London have complained of unnecessary bureaucracy .
With this in mind, Truss’s proposed legislation would allow ministers to unilaterally reduce customs checks and food safety checks on goods from Britain to Northern Ireland that are not destined for Ireland or to the rest of the EU single market; let Northern Ireland benefit from the VAT policies applied to the rest of the UK; and to enable Northern Irish companies to produce goods to British standards.
Although Truss’ statement contained few details, it promises that “full checks and controls” will be preserved on goods destined for the EU’s cherished single market. There will be “robust” penalties for breaches of the rules, she said. The UK is again proposing the creation of so-called ‘green’ and ‘red’ lanes – an idea first floated by then-Brexit minister David Frost in July 2021.
British ministers will be able to “remove regulatory barriers to the sale of products made to British standards in Northern Ireland”, promised Truss. Companies in the region could choose between meeting British or European standards.
The UK government is also giving itself the power to change the governance arrangements of the protocol, amid long-running complaints about the role of the Court of Justice of the European Union in the setup. Britain’s preferred solution on this front is “an arbitration mechanism” like that contained in the EU-UK Trade and Cooperation Agreement, Truss said.
The foreign minister tried to reassure the EU by offering to provide it with more real-time trade data on trade flows. This would be achieved through the UK’s previously launched ‘trusted trader’ scheme.
UK might not pull the trigger
It should be stressed that even if Britain promises to legislate, the actual passage of the law could still be a long way off, and there is no guarantee that ministers will then use the provisions it contains.
It is also likely to provoke some soul-searching among Tory backbenchers. “It’s one thing to use that to make things happen. I really hope I never have to vote on it,” said a Tory MP representing a pro-Brexit constituency. “I really should think very carefully about what I’ve done. We can’t keep going back to the 2019 Brexit votes. Nobody wants that.
The UK still believes there is a landing zone for a deal with the EU on the protocol – but only if EU leaders allow European Commission Vice-President Maroš Šefčovič to renegotiate the text of the protocol, which they have so far refused to do. It would take several months for EU leaders to agree on a new mandate, EU officials have warned, and there are no signs the bloc intends to do so.
However, the discussions should continue. The UK has invited Šefčovič to a London meeting of the Joint Withdrawal Agreement Committee, which oversees the Brexit divorce deal and protocol, to discuss the proposals as soon as possible.
The Commission was already hoping to resume discussions on the operation of the protocol in the summer, with a view to reaching a consensus by the end of the year.
The backdrop is likely to be tense, since these conversations will now take place in parallel with the vote on the bill, which the government intends to table in the Commons before the summer recess.
And the block doesn’t exactly ring for a change in strategy in the wake of the UK’s latest intervention. “If the UK decides to move forward with a bill removing the building blocks of the protocol, as announced today by the UK government, the EU will have to respond with all measures at its disposal,” Šefčovič said in a statement.
The EU is keeping carte blanche on what those measures might be, but a previous package covered tariffs, freezing data equivalence with the UK, imposing barriers on UK financial firms wishing to operate in the EU single market EU and not granting the UK access to EU R&D programmes, among others.
The most drastic course of action would be to scrap the entire post-Brexit EU-UK trade deal – but that would take months and is an option all parties would try to avoid.
Expect a legal backlash
The protocol has the force of an international treaty, so Britain is entering murky legal waters.
Truss insisted on Tuesday that the plan would “restore the primacy” of the Good Friday peace accord and said the government’s assessment was that the move would be consistent with international law. Unionists in Northern Ireland are currently refusing to form a power-sharing regional government because of the protocol, and Truss cited it as she sought to justify her approach. She soon promises details on the legal situation in the UK.
But Joanna Cherry, a Scottish National Party MP and lawyer, pointed to a previous fight in which the UK Supreme Court had made it clear that the government had to abide by international treaties it had signed up to. Irish Foreign Minister Simon Coveney has previously warned that “breaking international law is not the answer to solving protocol problems”.
In response to this decision, the EU could also relaunch the so-called infringement procedures, a legal action which may result in the Commission referring cases to the Court of Justice of the European Union, suspended in July 2021.
The UK has not said whether it plans to trigger the protocol’s safeguard mechanism, Article 16, which was designed for situations where one of the two signatories believes the provisions are problematic.
Annabelle Dickson contributed reporting.
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