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Desperate for solution to Northern Ireland protocol – POLITICO

Anton Spisak is a senior fellow at the Tony Blair Institute for Global Change.

When Liz Truss was first in charge of EU relations as UK Foreign Secretary, she was seen as a relative pragmatist.

She welcomed her counterpart Maroš Šefčovič to her Chevening residence, replaced the cavalier emphasis of her predecessor Lord David Frost with a more serious tone, and presented herself as a negotiator. But that impression only lasted until she did not hesitate to sour UK-EU relations by introducing legislation that would unilaterally rewrite the Northern Ireland Protocol, the Agreement post-Brexit designed to avoid a hard border on the island of Ireland.

When she entered Downing Street just weeks ago, Truss took that legacy of mistrust with her, as well as the consistency of her stance on protocol. But now, with the UK desperate to mend its relationship with the EU, it’s time for both sides to come back to the table and negotiate a way out of the impasse.

Fixing the deal, according to Truss, calls for a political solution – a more fundamental overhaul of the treaty, not just technical fixes aimed at reducing checks on goods entering Northern Ireland from Britain. And if the EU refuses to accept his plans, he warns that his government will implement them anyway through national legislation.

The EU, for its part, has always said that controls and “easements” to reduce red tape are possible, but a renegotiation of the treaty is not. The view of European capitals is that the UK proposals are not only unworkable, but also wrong in principle. How, wonder EU diplomats from Dublin to Tallinn, can a rules-based community make concessions to a partner seeking to override an international treaty it recently voluntarily acceded to?

Worse, what signal would it send to other countries waiting to flout the rules-based order?

Despite all their differences, however, there have been encouraging signs in recent weeks.

For starters, the UK government and the European Commission have agreed to depoliticize their disagreement over steel tariff quotas by putting in place a process to avoid levying a 25% duty on steel products entering Northern Ireland. .

The two sides also avoided a diplomatic confrontation that seemed almost inevitable after the Truss government warned it would invoke the now infamous Article 16, allowing it to override contentious parts of the protocol. In the end, London instead sent a written request to keep the “status quo” arrangements in place, and Brussels agreed informally – for now – not to refer the case to the Court of Justice of the EU.

In addition, there is now talk of setting up a “joint process” to review the substantive issues. Both sides are pinning their hopes on a data-sharing deal as Britain moves closer to accessing near real-time data from EU officials on east-west goods movements. According to them, this could open up new discussions on what would be a reasonable risk-based approach to managing controls.

In a world of low expectations, just being in the same room for such discussions can count as progress. But for negotiations to be productive, two things need to happen:

Firstly, they must be underpinned by a mutual agreement – ​​however tacit – that, while the talks last, the UK government would suspend the passage of the Northern Ireland Protocol Bill through Parliament in return for suspending by the Commission of its infringement procedures.

Second, high-level agreement must be reached on the principles guiding negotiations on four key issues: how to deal with goods entering Northern Ireland from Great Britain; how to address the implications of future regulatory divergence; what can be done with the provisions on state aid and value added tax (VAT); and how the Protocol should be governed.

These principles should begin with the recognition that the controls and requirements applicable to goods entering Northern Ireland from Great Britain may vary depending on their final point of sale. The negotiators will then have to determine how these requirements differ, how to enforce them and, above all, what guarantees must be put in place.

Both parties must also agree that managing future regulatory divergences requires finding a governance system, which would minimize future trade barriers and manage future disagreements that are bound to arise, for example if the carbon adjustment mechanism of the EU would apply to certain imports from Britain. in Northern Ireland.

In order to address the UK’s additional concerns, the two parties should agree to explore possible exceptions for specific products on VAT, and whether the provisions of the trade and cooperation agreement can replace the clause of protocol state aid.

And when it comes to governance, the presumption should be that any changes to dispute resolution can only be discussed after most substantive issues have been resolved, not the other way around.

Finally, the focus should be on reaching agreement on solutions, not on the exact legal form in which they would be presented – a temptation that usually derails productive negotiation efforts.

Any compromise solution is also complicated by the fact that it must encourage the return of the Democratic Unionist Party (DUP) of Northern Ireland to government institutions. The DUP may resist most compromises, but it will ultimately be progress in negotiations between London and Brussels that will increase its electoral cost of continued intransigence.

What is currently driving a change in attitude towards the issue is a combination of factors. In London, it is recognized that a serious confrontation with the EU would damage not only its economy at the worst possible moment, but also its diplomatic relations with Washington. Meanwhile, Brussels increasingly sees the protocol argument as a distraction from other issues and wants it settled.

Both sides understand that failure to reach an agreement – at least in principle – before the 25th anniversary of the Good Friday Agreement in April would be a diplomatic failure.

It remains to be seen whether they can find a compromise in six months, of course. But there is now an opportunity for both sides to return to the negotiating table and deliver the effort the people and businesses of Northern Ireland deserve.

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