A question has been on my mind for some time: when is the UK Government going to really begin to do the hard implementation work that is inevitable as a consequence of having signed the Northern Ireland Protocol and the EU-UK Trade and Cooperation Agreement (TCA)?
The answer, I think, based on Michael Gove’s letter to Maroš Šefčovič yesterday, is that the UK Government does not actually intend to do that hard work, and is looking for other ways around the problems that what it has signed have thrown up. The practical issues mentioned in the letter – customs declarations and post, meat products, movement of pets – are well enough known, and the UK already has a short grace period for those – until 1 April (explained more in this CER piece by Sam Lowe – note the piece was written before Gove’s letter was published).
But this is where the Gove letter deviates massively from what has gone before – this is not “we need a little more time” but “we want pretty much permanent changes to the regime for Northern Ireland”. The UK does not need until 1 Jan 2023 (Gove’s proposed deadline) to make these adjustments, for this is not about the time needed to make the practical adjustments. It is about politically refusing to make those adjustments.
Astute Brexit watcher Peter Foster has wondered about all of this here – essentially the EU would be ready to say, ok, you need some more time, we can give you that. But the end point for the EU would still be the same as it is now. Meanwhile the UK side is looking for something more permanent and fundamental, even calling into question the delicate balance of the ‘Brexit Deal’ composed of the NI Protocol and TCA.
Although the NI Protocol (together with the Withdrawal Agreement) was effective from 1 February 2020, the real implications of Brexit for Northern Ireland are only being felt now – because the TCA takes the rest of the UK so far out of the EU regulatory orbit. And with the grace period for some goods and customs declarations for post scheduled to end 1 April these problems are soon due to get more severe.
Gove’s solution is essentially: make the temporary grace period for Northern Ireland more permanent. And possibly threaten the use of Article 16 of the NI Protocol if not.
But there is another way: have another look at the TCA or – whisper it quietly – for the European Parliament to even threaten to not ratify it. Or if everyone is not willing to go that far, there are changes that could be applied to the whole of the UK that would help to alleviate the problems specifically and currently faced by Northern Ireland. Lowe has proposed the UK should look to negotiate a UK-EU Veterinary Agreement similar to Switzerland’s agreement with the EU. You could attempt something similar for the transport of pets – the EU pet passport scheme partially applies to some non-EU countries already.
There would be some pretty solid reasons to take an all-UK approach to the problems – this could also begin to address some of the very real export problems for English, Scottish and Welsh food industries. And while 1 April is the deadline for changes in Northern Ireland, 1 July is the significant date for the rest of the UK – that is when full controls on imports from the EU into the UK are supposed to come into force (if the UK is ready for that of course). Partially alleviating a whole new layer of Brexit bureaucracy would be handy for everyone.
However any all-UK approach to solving the practical Brexit headaches would mean the UK Government would have to set aside its sovereignty-at-all-costs view of Brexit – and at the moment I think it is more likely that the UK Government would sooner play with fire in Northern Ireland than abandon its overall Brexit direction.
Which then brings us to the European Parliament and the ratification of the TCA. Provisional Application was used to make sure the TCA was in place by 1 January at the end of the Brexit Transition Period, but there was not enough time for the European Parliament to complete its scrutiny in December – that is only happening now, and with the EP scheduled to ratify or not between 26 and 29 April – almost 3 months from now. Adequate time for the problems in Northern Ireland and indeed the rest of the UK to mount further.
At the very least the European Parliament is going to pose some uncomfortable questions about how the TCA and NI Protocol are (not) working. And it would not be impossible to foresee the European Parliament refusing to ratify the TCA if the practical implications of the interplay between it and the NI Protocol were calling the future of peace in Northern Ireland and the Good Friday Agreement into question. I know taking the European Parliament seriously is an anathema to Michael Gove and the UK Government, but they might do well to act with a little caution with regard to Article 16 until ratification is done and dusted.
Perhaps the mis-steps on both the UK and EU sides regarding Article 16 over the past fortnight can be overcome.
Maybe the tensions in the corridors of political power, and on the ground – especially in Northern Ireland – can be calmed down somehow.
But it is now no longer impossible to ignore: the problems implicit in the interplay between the NI Protocol and the TCA might be too large to be overcome with some longer grace periods – and some more major changes might have to be contemplated, and contemplated very soon. With ratification of the TCA still not complete we are in for a bumpy few months.