207.In this Chapter we set out potential mitigations and solutions for the problems that have been outlined in Chapters 3 and 4. As we set out in Chapter 1, our analysis is without prejudice to the views of individual members in terms of overall support for or opposition to the Protocol.
208.A common theme emerging from our evidence was that the Protocol needed to be applied in a proportionate manner if the commitment in the Preamble that it should “impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland” was to be honoured. The Northern Ireland Business Brexit Working Group stressed five key principles to achieve this: stability, certainty, simplicity, affordability, and clarity.
209.Professor Shirlow said that the EU needed to take account of the modest risk that Northern Ireland posed to the integrity of the Single Market: “We have a limited air, road and port infrastructure and … it is very easy to monitor the east-west movement of goods. It is a small place. If goods at risk are at the heart of the EU’s understanding, surely it must understand infrastructural scale.”
210.Professor Shirlow added that the £13 billion total value of East-West movement of goods amounted to 0.0008% of the EU’s GDP. The EU needed to be cognisant of the core importance of the East-West relationship for the Northern Ireland economy and to ask itself:
“’Why is this being so overengineered?’ … If you want to support the peace process, you will have as much frictionless movement as you can on the east-west chain of movement of goods, especially from Great Britain … It cannot just be a process of looking at rules and regulations.”
211.Dr Birnie criticised the EU for its perceived lack of flexibility and urgency in agreeing mitigations in the Withdrawal Agreement Joint Committee. Peter Sheridan also stressed the need to resolve the issues affecting people’s daily lives quickly, “not leaving them for six months but resolving them now”.
212.Mary Madden detected a “serious difficulty”, threatening the Protocol’s sustainability, in the EU’s tendency to see the Protocol through the lens of a trade agreement to protect the Single Market, without understanding the wider impact on sensitive issues of identity.
213.Although the Ulster Unionist Party acknowledged the right of the European Union to seek to protect its Single Market, it argued that the Protocol was the wrong solution:
“The Protocol reaches far beyond this intention. A key component of the Belfast Agreement was pragmatism and acknowledging the interconnectedness of these islands geographically, historically and economically. The Protocol appears void of any of the pragmatism that has seen relations change for the better over the last twenty years and that creates a tension that must be resolved.”
214.Likewise, the DUP argued that “a fair, flexible and proportionate solution must be identified which respects every market and every border equally”.
215.Ambassador Vale de Almeida said that the EU has:
“an economic, diplomatic and even an emotional and financial commitment to Northern Ireland, which is without any doubt. We are very much aware of the situation. That is why we have shown, and Vice-President Šefčovič in particular and all of us have shown, a great deal of understanding and flexibility. We are turning our regulations upside down to try to find solutions to this problem. … this is the first time in history that the European Union has outsourced to a third country … the control of the external border of its single market, and that is a major sign of confidence and trust in our relationship. … We are applying specific, innovative and creative procedures and concepts to a very particular situation like the one in Northern Ireland, so I think that you can count on us to exercise the maximum pragmatism, but we have the legal and economic constraints that are linked to the protection of the single market.”
216.Lord Frost told us that a “new balance” needed to be created in operating the Protocol, as it is “not being operated in a way that respects the balance of the Belfast/Good Friday Agreement”:
“The Protocol exists because there is a delicate balance in the Good Friday Agreement and because there are a lot of different interests and concerns that have to be satisfied through the Protocol. I think that means all sides have to act with a degree of respect and sensitivity. … the fundamental thing that has to be rebalanced is that goods have to be able to flow as freely as possible between Great Britain and Northern Ireland. The reality of the UK customs territory as set out in the Protocol, and the reality of the UK internal market as set out in the Protocol, has to mean something, and be real, to the people who operate within it.”
217.We acknowledge the EU’s concern to protect the integrity of its Single Market, and its argument that it has already shown pragmatism in exploring flexibilities allowed under EU law and by outsourcing to the UK the control of the external border of its Single Market. Nevertheless, it needs to do more to ensure that the Protocol is applied in a flexible and proportionate manner. The Protocol’s sustainability will be undermined if the EU does not take all relevant factors into account, including the economic importance of East-West trade, the degree of risk that the Northern Ireland market presents to the EU Single Market, and the sensitive issues of identity that the Protocol gives rise to. In that context, we note that the £13 billion total value of movement of goods between Great Britain and Northern Ireland amounts to 0.0008% of the EU’s GDP.
218.Professor Hayward argued that the EU’s approach was because it “hears just as much as everybody does the UK Government’s apparent willingness to breach the Protocol”. The SDLP agreed that “as long as the UK flirts with upending the entire treaty, these solutions become more difficult. Not least as Member States become ever more suspicious of British intentions and wary of giving them another perceived concession only for it to be twisted … later.”
219.Jonathan Powell argued that the EU had a legitimate concern about opening a back door to the Single Market, in particular as direct trading routes between Ireland and the EU mainland grow, and given the history of smuggling across the Irish border:
“If you want to persuade the EU and particularly the French Government to implement this in a way that will be light touch, they need to believe the UK genuinely intends to implement the agreement it has reached. So far, they would be rather justified in thinking that is the opposite of what we intend to do. Instead, we unilaterally start extending things. We do not implement the things we have promised to do. We do not recruit the staff. We do not put things in place. If we started … trying to build the trust and demonstrating we were going to implement it, they would be a lot more sympathetic to making it light touch.”
220.In its statement after the 9 June Withdrawal Agreement Joint Committee, the Commission welcomed the UK’s commitment to providing concrete plans regarding IT access, as agreed in the Joint Committee in December. However, it identified three remaining outstanding areas where it argued that the Government had not met its commitments to implement the Protocol, including construction of permanent Border Control Posts; the capacity of temporary facilities; and traceability of food supply to supermarkets. The Commission stated that it “remains open to exploring technical solutions provided that the UK Government commits to the full implementation of the Protocol and demonstrates this through concrete action”.
221.Ambassador Vale de Almeida said that the EU was willing to be flexible, but this was contingent on the UK implementing the flexibilities that had been mutually agreed in December, in order to enhance goodwill and a constructive atmosphere.
222.Lord Frost acknowledged the need for trust between negotiators. However, he added: “I make no apology for telling things like it is. It is important to be clear about what you think so that the other side can understand that.” He said that all sides bore responsibility for the problems of trust that had arisen, and he argued that the EU’s actions in relation to Article 16, State aid and tariff rate quotas, taken without warning, had caused problems. He stressed the need for all sides to move on in a constructive and consensual way to achieve “the new balance that we need”, because “the Protocol is not working well, and … a workable Protocol, a workable arrangement, is in the interests of everybody in Northern Ireland, and it is only if we can find something that is in the interests of everybody that we will get something workable.”
223.The Government’s actions in relation to the Protocol, including unilateral extension of grace periods and a perceived failure to implement previous agreements reached in the Withdrawal Agreement Joint Committee, have been regarded as provocative by the EU, and have contributed to a lack of trust and cooperation between the two sides. The UK Government has argued that its actions were necessary in the interests of the people and businesses of Northern Ireland. However, in order to maximise the prospect of the EU taking a flexible approach to the implementation of the Protocol, the Government needs to rebuild trust by demonstrating its good faith. This requires open and constructive engagement, meetings its legal obligations and fulfilling its outstanding political commitments.
224.The Northern Ireland Business Brexit Working Group called for the UK and the EU to agree 12 specific mitigating measures:
225.We received detailed evidence on a number of these and other proposals.
226.Alliance Healthcare UK, the Ethical Medicines Industry Group, Norgine Pharmaceuticals, the College of Podiatry, the Healthcare Distribution Association and PAGB all called for a Mutual Recognition Agreement on medicines standards, allowing UK/GB licensed products to be supplied to pharmacies and hospitals in Northern Ireland. Teva UK Limited further called on the UK and EU to confirm that an entity established anywhere in the UK will be allowed to act as a Marketing Authorisation Holder for authorisations valid in Northern Ireland.
227.Stephen Kelly said that the single biggest request from the manufacturing sector was for an expansion of the definition of goods not at risk of moving from Northern Ireland into the EU Single Market.
228.Gray and Adams Ltd argued that goods destined for consumption in Northern Ireland and materials used in the manufacture or processing of goods destined for Great Britain or Northern Ireland should not be subject to the Supplementary Declaration process. They also called for the replacement of the Supplementary Declaration process with a simplified declaration process, modelled on the EU’s ‘Intrastat’ model. The Society of Motor Manufacturers and Traders and SDC Trailers Limited agreed, and called for GB-established businesses moving or selling their products to an address in Northern Ireland to be able to use the UK Trader Service to self-declare their goods not ‘at risk’.
229.Seamus Leheny noted the potential for an audited movement/trusted trader scheme for moving goods from Great Britain to Northern Ireland, using GPS and smart seal technology. Aodhán Connolly said that 70% by value of goods crossing from Great Britain to Northern Ireland are destined for retailers’ shelves, and a trusted trader scheme should be based on the low risk of those goods entering the EU Single Market, covering as wide a group of goods and traders as possible.
230.Professor Morrow identified a UK/EU veterinary agreement as “probably the single biggest thing that could be done in practical terms” to alleviate the burden of the Protocol. The National Farmers’ Union and Ulster Farmers’ Union stated that they would welcome a long-term SPS agreement covering all affected products, including live animals, products of animal origin, plants and plant products, prohibited and restricted goods, growing media, and machinery.
231.Jess Sargeant said that a UK-EU veterinary agreement could take several forms, including a Swiss-style agreement, with complete regulatory alignment and removing the need for almost all paperwork and checks, or a New Zealand-style agreement, which would reduce the frequency of checks. Peter Sheridan said that it was in Northern Ireland’s interests for there to be an agreed common approach to food safety and veterinary standards to reduce the large number of checks, though Mary Madden feared that such a model was incompatible with the UK Government’s trade policy.
232.Jonathan Powell noted that US President Biden had made clear that an SPS agreement that alleviated tensions over the Protocol would not stand in the way of a US-UK trade agreement, “so that excuse is gone. There is no excuse, apart from an ideological wish to avoid harmonising with the EU, because there are no practical problems with such harmonisation that people can point to.”
233.On 9 June, the UK stated that it had “made a proposal which recognises the high standards of both Parties and establishes mechanisms to identify and address any risk arising from changes made on either side”. The EU responded that it had suggested that the UK should continue to follow, if only temporarily, EU rules, so that “most checks on Great Britain-Northern Ireland trade would be removed”. It stated that the UK had refused this option, even though the EU had suggested that this temporary agreement could be reviewed once the UK concludes new trade deals.
234.Ambassador Vale de Almeida said that the EU calculated than an “encompassing SPS veterinary agreement” would remove 80% of controls. Such an agreement, if only temporary pending the agreement of UK trade deals, would remove checks at the border and allow time for infrastructure in Northern Ireland to be built. He called for both sides to “find a way through with some creativity”.
235.Lord Frost said that the UK could not sign up to the EU’s proposal for a Swiss-style arrangement, whereby the UK operated the rules of the EU. Rather, there was space for an equivalence arrangement in a “situation where the two territories operate rules that are essentially providing for the same standards but have some differences in detail”. He pointed to the EU’s agreements with New Zealand and Canada as potential precedents. He said that the UK had provided the EU with a detailed proposal, which he acknowledged would “break new ground in the sense that it would be broader than existing equivalence arrangements”. Though there had been some discussion with the EU, it had not been of the quality that he would have liked.
236.The UK and the EU acknowledged the case for flexibilities in their separate statements after the 9 June Withdrawal Agreement, in the context of reports that they were examining a list of over 25 specific issues of contention in relation to the Protocol. The UK Government noted “progress towards solutions” in relation to:
237.The Government stated that it “has been led to understand that further proposals will be received from the EU” in relation to:
238.On the other hand, the Government expressed concern that “substantive progress has not yet been made” in relation to:
239.In parallel, the Commission published examples of flexibilities that it had identified to ensure the full implementation of the Protocol, in relation to:
240.On 30 June, the Commission published “a balanced package of measures to address some of the most pressing issues related to the implementation of the Protocol”, which it argued demonstrated its “strong commitment to finding creative solutions—including by changing its own rules—with the core purpose of benefitting people in Northern Ireland”. These included:
241.Lord Frost said that the 30 June announcement was helpful, although more was needed. On medicines, he acknowledged that the EU had made a “valiant effort … to deal with the problems”. However, the Government was not convinced that it dealt with all the difficulties, and dialogue with the EU continued. Although the grace period for medicines expires at the end of the year, Lord Frost said that firms were already taking decisions about supply of drugs, and there were reports that some drugs are being withdrawn: “we are absolutely clear that people in Northern Ireland have to have the same access to medicines as in every other part of the United Kingdom.”
242.Lord Frost said that the extension of the grace period for chilled meats provided breathing space, although it did not resolve the problem. He said that details had yet to be received in writing on the other proposals. Overall, “the problem is that we are simply not having the quality of discussion about them that we need in order to resolve the problem. Meanwhile, time is passing.”
243.If they are to ensure the proportionate application of the Protocol, and meet the commitment in the Preamble that it should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland, the UK and the EU urgently need to agree practical solutions in a number of specific areas. Many have already been identified both by our witnesses and in dialogue between the UK and the EU in the Withdrawal Agreement Joint Committee. They include:
244.We welcome the Commission’s announcement on 30 June of agreement to the extension of the grace period for chilled meats, as well as technical solutions facilitating the supply of medicines, the movement of guide dogs, and the movement of animals between Great Britain and Northern Ireland. However, a large number of outstanding technical issues still remain to be resolved.
245.One of the most significant single measures to alleviate the regulatory and administrative burden of the Protocol would be a UK-EU SPS/veterinary agreement. The EU has suggested that a Swiss-style agreement based on dynamic alignment would remove 80% of checks. The UK has argued in favour of a New Zealand-style equivalence framework. The two sides have yet to find a compromise between their positions.
246.While it is clearly desirable to minimise the volume of checks as far as possible, an SPS/veterinary agreement of any form is manifestly in the interests of Northern Ireland, and the failure to reach it suggests that political and economic stability in Northern Ireland is a lower priority for the EU than the protection of the Single Market, and a lower priority for the UK Government than regulatory sovereignty and the integrity of its trade policy. We regret that the UK and the EU have been unable to reach a compromise between their respective preferences for equivalence or alignment. We call on them to intensify the search for an agreed SPS/veterinary solution, in the interests of the people and businesses of Northern Ireland.
247.Professor Morrow argued that the UK Government, in its relations with the EU, has a responsibility to include Northern Ireland within its thinking, rather than treat it as a separate consideration. Jess Sargeant agreed on the need to amplify the voice of Northern Ireland in Westminster and Whitehall, because “the Brexit process has shown that there is sometimes a lack of understanding in both those institutions about Northern Ireland”.
248.Jess Sargeant also cited the importance of the Common Frameworks programme as a tool for the UK Government, and the devolved governments in Scotland and Wales, to consider the impact of changes in EU law on regulatory divergence between Northern Ireland and Great Britain, and the steps they could take to mitigate any negative impact.
249.Witnesses also highlighted the importance of maximising Northern Ireland’s influence in the EU. The Environmental Governance Island of Ireland Network called for the Northern Ireland Executive to build relationships, in particular through its Brussels office, with the EU institutions, MEPs and Member States, to receive early notice of relevant EU legislative developments, and to feed in the Executive’s perspective.
250.Professor Hayward stressed the need for democratic representation from Northern Ireland to feed into the work of the Joint Committee and the EU institutions, including access to relevant EU committees, agencies and bodies. The Office of the Northern Ireland Executive in Brussels had a key role to play, and the EU needed to show flexibility in allowing a sub-state region to play such a role. She also called on the UK-EU governance bodies, including the Joint Consultative Working Group, to engage with Northern Ireland business and civic society.
251.Jess Sargeant agreed that the UK-EU governance bodies should be a genuine forum for consultation with Northern Ireland stakeholders. She also said that the Joint Committee should consider how EU law applied in Northern Ireland, with the option of adjusting the application of EU law in Northern Ireland. She cited opportunities for Northern Ireland to participate, through observer status or other methods, in relevant EU institutional programmes, for instance by attending working groups or through the Committee of the Regions.
252.Rebecca Ellis, Director, Northern Ireland/Ireland Unit, Cabinet Office told us that the Joint Consultative Working Group was designed as a forum where measures that are coming down the line from the EU are notified to the UK, with representation from the Northern Ireland Executive. She said that the Government and the Commission had worked together to establish the Working Group and it is now meeting on a regular basis. However, she and Lord Frost asserted that more effective mechanisms were needed to give both the Government and the Northern Ireland Executive upstream warning of EU measures applying to Northern Ireland. Lord Frost argued:
“The EU is not taking entirely seriously the fact that it is legislating for another territory. These are laws that are imposed on another territory without a process, and I think the least that can be done is to give some advance warning of that, some understanding, some chance to feed back and consult. That is not really happening at the moment.”
253.Professor Morrow underlined the need to develop channels of communication, given that the Commission “has taken on a formal, consequential role in the internal affairs of Northern Ireland in a way that was not true before”. The EU in turn needed to learn from the dramatic political effect in Northern Ireland of its abortive intention to invoke Article 16. He called on the EU to establish an early warning system, to factor the consequences for Northern Ireland into the way that the Commission makes its decisions. He suggested that the Irish Government could have a key role in this regard.
254.Dr Tom Kelly argued that:
“A huge mistake was made in not maintaining some form of EU office in Belfast so that a lot of the practical issues could have been worked out on the ground … nothing beats that kind of engagement on the ground to make sure that issues never arise. We do it with parades, policing and lots of very sensitive issues … As a confidence-building measure, that would have been practical and would have made a lot of sense.”
255.Ambassador O’Neill agreed that the UK’s decision not to allow a European Commission representative office in Belfast “restricted an opportunity to facilitate even better understanding and communications between the EU and Northern Ireland”.
256.We were told that the Northern Ireland Executive had a key role to play in maximising Northern Ireland’s influence, as a unified position would have a significant impact on the decisions being made by the UK and EU.”
257.Dr Tom Kelly cited the August 2016 letter from the then First and deputy First Ministers, Arlene Foster MLA and Martin McGuinness MLA, which set out the key issues and priorities from the point of view of the Executive, including Northern Ireland’s status as the only part of the UK sharing a land border with the EU, business competitiveness and labour costs, energy supply, EU funding, the agri-food sector, dialogue with the Irish Government, and the need to protect the peace process. He regretted that this letter “got lost in the shenanigans at Westminster”. However, it represented “the seed of how to work out the Protocol to everybody’s understanding and betterment … All we have to do is to go back and recapture that spirit of generosity”.
258.Arlene Foster wrote a second joint letter, with Mr McGuinness’ successor as deputy First Minister, Michelle O’Neill MLA, to Vice-President Šefčovič in November 2020, stressing the need to give businesses clarity over the operation of the Protocol, and to identify practical and effective working arrangements for SPS controls that did not disrupt daily food supplies and costs for consumers, in order to uphold the Protocol’s commitment that it should “impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland”.
259.The DUP and the Ulster Unionist Party both stressed that the role of Executive Ministers on the Withdrawal Agreement Joint Committee needed to be strengthened to give them an ability to influence its decisions, rather than offering the “window dressing” of observer status.
260.Dr Tom Kelly and Professor Morrow called for the intergovernmental mechanisms established under the Belfast/Good Friday Agreement to be used to draw attention to concerns over the Protocol (see Box 1).
The International Agreement between the British and Irish Governments underpinning the Belfast/Good Friday Agreement expresses the two nations’ intentions as follows: “Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union”.
The Agreement contains a number of references to the EU, including, at paragraph 31 of Strand One (Democratic Institutions in Northern Ireland), that “terms will be agreed between appropriate [Northern Ireland] Assembly representatives and the Government of the United Kingdom to ensure effective co-ordination and input by Ministers to national policy-making, including on EU issues”.
Strand Two of the Agreement (on North/South relations) provides for a North/South Ministerial Council to be established to bring together those with executive responsibilities in Northern Ireland and the Irish Government, to develop consultation, co-operation and action within the island of Ireland—including through implementation on an all-island and cross-border basis—on matters of mutual interest within the competence of the Administrations, North and South.
Paragraph 3 of Strand Two (North/South relations) states that the North/South Ministerial Council will meet “in an appropriate format to consider institutional or cross-sectoral matters (including in relation to the EU) and to resolve disagreement”. Paragraph 17 states that the North/South Ministerial Council is “to consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings”. The Annex to Strand Two states that areas for North-South co-operation and implementation may include “relevant EU programmes such as SPPR, INTERREG, Leader II and their successors”.
Strand Three (East/West relations) states that a British-Irish Council (BIC) will be established “to promote the harmonious and mutually beneficial development of the totality of relationships among the peoples of these islands”. Strand Three states that suitable issues for discussion in the British Irish Council could include “approaches to EU issues”.
Strand Three also states that there will be a “standing British-Irish Intergovernmental Conference … The Conference will bring together the British and Irish Governments to promote bilateral co-operation at all levels on all matters of mutual interest within the competence of both Governments.”
261.The Environmental Governance Island of Ireland Network also called for the North South Ministerial Council to be used to allow Northern Ireland early sight of relevant EU developments through the Irish Government’s continued involvement in the EU legislative process.
262.In that context, we note that both the British-Irish Council and the British-Irish Intergovernmental Conference met in June.
263.Several witnesses referred to the key role that the Irish Government could play. Mary Madden argued that there was a perception during the Brexit negotiations that the Irish Government was not acting impartially but rather advancing a nationalist agenda, and that “when push came to shove we were on our own”. She and Sir Nigel Hamilton argued that the Irish Government did not have “any appreciation of the [Protocol’s] detrimental impact on business and trade in Northern Ireland”, claiming that they “hide behind their membership of the EU, ignoring their responsibilities as co-guarantors of the Belfast Good Friday Agreement”. They called on the Irish Government to maximise its influence in the EU to help deliver solutions.
264.Jackie Redpath said that there had been disappointment in the loyalist community at the “strong insider position” with the EU that the Irish Government had taken. He and Peter Sheridan called on the Irish Government to do more to take account of unionist and loyalist concerns.
265.Jonathan Powell said that it was “tragic” that the UK’s good relationship with the Irish Government had been undermined by Brexit and the Protocol: “We need the Irish Government to work with us on Northern Ireland if it is to be stable and peaceful … To deliberately go round provoking them rather than trying to co-operate with them is a big mistake.”
266.Dr Tom Kelly said that “at times, neither the British Government nor the unionist politicians in the north realise that the Taoiseach is a friend in this, in a non-threatening way. He is a bridge, in some ways, between the EU, Britain and Northern Ireland, and he has been trying pretty hard to reach out and listen to people’s concerns.” This point was further emphasised by the Taoiseach in a public statement on 27 June.
267.Ambassador O’Neill stressed the Irish Government’s engagement with Northern Ireland stakeholders: “We are listening carefully to the genuine concerns of business and civil society and are committed to supporting engagement between the UK and EU to address them.” He added that the Irish Government “has been and remains committed to actively listening and engaging with those from the Unionist and Loyalist communities who have expressed genuinely held concerns with respect to the Protocol, and to working to help address those concerns where possible.”
268.Lord Frost acknowledged the particular importance of rebuilding trust between London and Dublin, although he denied they were in “such a parlous state”. He said that “things are said by all sides that do not necessarily land well”, and “it is important that we all try to act in a way that is conducive to a good negotiation”.
270.Some of our witnesses have stressed the importance of establishing an EU office in Belfast to allow the EU to engage directly with Northern Ireland stakeholders. The case for this and the timing of any such move needs to be handled sensitively, in close consultation with communities in Northern Ireland.
271.The Northern Ireland Executive has a key role to play in maximising Northern Ireland’s influence. We note the significance of the joint letters sent by Arlene Foster and Martin McGuinness in August 2016, and by Arlene Foster and Michelle O’Neill in November 2020. We urge the Executive, notwithstanding the different views on the Protocol within it, to work together to promote Northern Ireland’s collective interest both to the UK and EU.
272.We also acknowledge the potential role of the intergovernmental institutions established under the Belfast/Good Friday Agreement, including the North South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference, to discuss, by agreement of all parties, issues of mutual interest and concern in relation to Brexit and the Protocol. We welcome the recent meetings of both the British-Irish Council and the British-Irish Intergovernmental Conference.
273.We also note the important role of the Irish Government in facilitating dialogue between the UK Government and the Northern Ireland Executive on the one hand, and the EU on the other. We urge the Irish Government to enhance its dialogue with stakeholders and communities in Northern Ireland, including the unionist and loyalist communities, so as to increase the EU’s awareness and understanding of their concerns.
274.For some witnesses, from the loyalist and unionist community in particular, the mitigations we have described, while necessary, will not be sufficient, as they fail to address what are perceived to be the Protocol’s fundamental (and unresolvable) economic, political and constitutional flaws.
275.The DUP stated that “steps to temporarily alleviate burdens on businesses and communities [are] a useful starting point but we are clear that it should not be the end point”. They asserted that the EU and the UK needed to accept that the Protocol was unworkable, and that fundamental rather than technical change was therefore needed.
276.Traditional Unionist Voice (TUV) argued that while mitigations may tinker with how the Protocol is implemented, they cannot undo “the constitutional violence done by the construct of the Protocol”:
“It is the transfer of sovereignty which is the key and determining issue. Thus, so long as this part of the United Kingdom is a rule taker from Brussels, subject to laws we did not make and cannot change, then so long will the Protocol in all its parts be unacceptable.”
277.This has led to calls for the UK Government to take unilateral steps, including through the safeguarding mechanism in Article 16 of the Protocol (see Box 2).
Article 16(1) of the Protocol on Ireland/Northern Ireland enables either party to the Agreement unilaterally to take “appropriate” safeguard measures if the application of the Protocol leads to “serious economic, societal or environmental difficulties” (or “to diversion of trade”), where these negative outcomes “are liable to persist”. Such safeguards must be “restricted” in their scope and “strictly necessary” to remedy the specific situation. The Article also states that “priority” should be given to measures that will “least disturb” the functioning of the Protocol.
Where such safeguard measures are taken by either Party and they create “an imbalance between the rights and obligations under this Protocol”, Article 16(2) allows the other party to take any proportionate “rebalancing measures” that are “strictly necessary” to remedy the “imbalance”.
Recourse to Article 16 by either Party (and any “rebalancing measures” taken under Article 16(2)) is governed by a procedure set out in Annex 7 to the Protocol. Where either Party is considering taking safeguard measures:
(i)it must “without delay” notify the other Party through the Joint Committee and provide all relevant information;
(ii)both Parties must “immediately” enter into consultations within the Joint Committee “with a view to finding a commonly acceptable solution”;
(iii)the Party considering safeguard measures may not undertake those measures until one month has elapsed after the date of notification under point (i), unless the consultation procedure under point (ii) has been concluded before the expiration of the stated limit. But, in “exceptional circumstances” that require “immediate action” that exclude “prior examination”, either Party “may apply forthwith the protective measures strictly necessary to remedy the situation”, and the relevant Party must “without delay” notify these measures taken to the Joint Committee and shall provide all relevant information; and,
(iv)any safeguard measures taken under these arrangements must be subject to “consultations” in the Joint Committee every three months from the date of their adoption with a view to their abolition before the date of expiry envisaged, or to the limitation of their scope of application, and they can be reviewed at any point by the Joint Committee following a request by either Party.
278.Our witnesses reflected on the impact of unilateral action by either side, in the context of the Commission’s abortive announcement in January 2021 of its intention to trigger Article 16 in relation to COVID vaccine supplies, and the UK’s unilateral extension of grace periods in March 2021.
279.On 29 January 2021, the Commission announced its intention to invoke Article 16 in the context of its Implementing Regulation on COVID vaccine provisions. Following strong protests from the UK and Irish Governments, the Commission changed its position and removed references to Article 16 later the same day, before the Implementing Regulation had come into effect. However, its abortive action contributed to unrest in Northern Ireland over the Protocol.
280.Professor Morrow said that the EU’s action, if implemented, would have had the alarming effect of “effectively reimposing a hard border in Ireland without any consequence and without any use of any mechanism”, with “immediate and sudden impact on the ground in Northern Ireland”. Jess Sargeant agreed that “it is easy to underestimate the implications of what happened over Article 16 and how that changed the debate. It is important that the Commission takes responsibility for that. Even if it says it was an accident, it still had those consequences.”
281.Dr Birnie feared that the Commission’s explanation that it had overlooked the political ramifications of its abortive announcement was itself concerning, because it reflected how little thought was given to Northern Ireland’s particular circumstances and interests.
282.The SDLP, while acknowledging that “the European Commission’s near-miss in relation to Article 16 in January was unhelpful and ill-judged”, also argued that “the UK Government has used this (quickly corrected) error to justify a campaign bordering on misinformation and provocation”.
283.As we have seen, business groups told us that, while they did not agree with the Government’s unilateral action in extending the grace periods in March 2021, an extension was nevertheless urgently required.
284.The DUP said that there was a duty on the Government to exercise and exhaust every tool at its disposal under the Withdrawal Agreement, including unilateral powers, to remedy the harmful effects of the Protocol. They called on the Government to trigger Article 16 to “fully and permanently restore Northern Ireland’s place in the UK internal market”, as the threshold of “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade” had been exceeded.
285.Professor Shirlow, on the other hand, said that “the UK Government, whether we like it or not, exercised their proper constitutional power and decided to ratify this international agreement with the EU. Articles 16 and 18, which have been voiced as a way to get rid of the Protocol, are no such thing. It is a completely inaccurate description of either. Article 16 is not a unilateral mechanism in any shape or form.”
286.Several witnesses warned of the negative consequences of further unilateral action by the UK. Professor Morrow stressed the importance of the UK complying with international law, and warned that “unilateralism and uncertainty are probably the single biggest risks that Northern Ireland faces. In the middle of uncertainty and unilateralism, we tend to get pre-emptive violent action.”
287.Professor Morrow also warned that continued unilateral actions by the UK would lead directly to a more legalistic approach to enforcement by the EU, meaning that “the consequence in the long run is the opposite of what is intended”. Instead, he said, the dispute mechanisms contained in the Protocol and the Withdrawal Agreement should be used.
288.Professor Hayward questioned how the UK’s repeated implicit threats to use Article 16 or take further unilateral action “can build stability in Northern Ireland when you are undermining an international agreement that you yourself negotiated”. Dr Tom Kelly agreed that “acting unilaterally does not make sense for either side, because you are trying to focus on a solution. If you keep threatening the right to act unilaterally because you are not getting your own way, you will never build the trust to actually come up with a solution.”
289.Jonathan Powell commented on the “toxic relationship” between the UK and the EU, and warned that further unilateral steps by the UK would lead to a generalised trade war with the EU:
“It is a lot harder to get out of a trade war than it is to get into one … If we are to avoid that trade war, we need to decommission the rhetoric straightaway, to stop the unilateral threats straightaway, and to focus on the practical discussion … That requires co-operation, which in turn requires trust, and it is the politicians’ job to build that. If we go down the trade war route instead, I really worry about what the implications will be for Northern Ireland.”
290.Ambassador Vale de Almeida said that the UK Government’s decision not to take further unilateral measures in relation to the extension of the grace period for chilled meats pointed to “a new, more constructive climate in our relations” and was “encouraging [the EU’s] willingness to address some difficult issues”.
291.Lord Frost said that “the most durable agreements are those where both sides agree to them. We have made no secret of the fact that we would prefer to proceed by consensus on this. … but certainly all options are on the table.” Lord Frost was asked if that included reneging on a treaty obligation. He said:
“There will always need to be some kind of tailored treaty relationship between us and the EU that covers Northern Ireland. … if we are to find a solution, we will have to do it, one way or another, with the European Commission. … There are options within the framework of the Protocol that allow things to be worked in a different way. … for example, there is a contrast between the provisions in Article 5 for the Union Customs Code to be applied and Article 6 saying that we should all minimise checks at ports in Northern Ireland. What is the right settlement point between that? That is a perfectly reasonable point of negotiation for how it should be operated that does not involve any sort of unilateral action or disavowal at all. It is a perfectly legitimate subject for discussion within the framework of the existing Protocol.”
292.The use by either side of the safeguarding mechanism set out in Article 16 of and Annex 7 to the Protocol is a legitimate legal and political action in the event, in the Protocol’s words, of “serious economic, societal or environmental difficulties that are likely to persist, or to diversion of trade”. The use of Article 16 should therefore be distinguished from other unilateral action outside the scope of the Protocol and Withdrawal Agreement which would constitute a breach of either side’s legal obligations.
293.We note the strong views of some of our witnesses that the disruptive effect of the Protocol highlighted in Chapters 3 and 4 of this report already justifies Article 16 being triggered. However, we also note the views of other witnesses that any unilateral action by either side, including triggering Article 16, has destabilising political and economic consequences. In any event, the Article 16 mechanism is not designed as a means to abrogate the Protocol, but rather as a carefully calibrated mechanism of proportionate measure and counter-measure, underpinned by obligations to continued dialogue to resolve the issues of concern.
295.Some witnesses, in particular from the unionist and loyalist communities, stressed that alternatives to the Protocol were necessary to address their principled opposition to it. The DUP stated that they remained “wholly opposed to the provisions of the Northern Ireland Protocol, which we believe represent a serious and ongoing threat to political stability and economic prosperity in Northern Ireland as well as the integrity of the United Kingdom.”
296.The Ulster Unionist Party has proposed the introduction in UK domestic law of a provision that would prohibit the use of UK territory to export goods to the EU that are not compliant with EU regulations and standards. This would be backed up by the creation of a new Treaty-based cross-border body to provide an educational role to businesses on the island of Ireland and to visit premises to ensure that goods and companies were compliant with EU Single Market rules. The UK would also commit to indemnifying the EU (including Ireland) if it was found that UK territory had been used to export non-compliant goods to the EU via the land border.
297.In the meantime, the Ulster Unionist Party argued for extension of the grace periods for at least 12 months, a UK Government cross-departmental Taskforce to identify the problems with the Protocol; an awareness campaign among businesses in Great Britain; and UK domestic legislation to require companies based in Great Britain to ensure equality of provision to all regions of the UK internal market.
298.The Loyalist Communities Council advocated a new Protocol, with no customs declarations for goods or services moving in either direction between Northern Ireland and the rest of the United Kingdom for goods or products produced in the UK. Instead, “goods or produce originating in Northern Ireland and bound for consumption in the Republic of Ireland (and vice-versa) should either be subject to a special customs derogation (granted by UK and EU jointly) or subject to pre-clearance at the point of departure but only if they diverge from common UK/EU standards.”
299.The Centre for Brexit Policy has advocated a model of mutual enforcement, which would replace “the controversial minutiae of operational and technical procedures with a legal obligation on each side to ensure the enforcement of the other side’s rules and standards”.
300.Stephen Kelly said that the proposal for mutual enforcement would not resolve SPS issues, the source of most frictions. Aodhán Connolly agreed that the stumbling block with alternatives to the Protocol “always seem to be SPS. If you have a container full of milk, you cannot tell which part of the milk came from northern cows and which part came from southern cows.” Mutual enforcement would involve different customs regulations:
“What level of intrusion would be needed to get both the evidence on SPS and what is being carried? What sort of bonding would be needed? The levels of complexity start building up. That is the other point of this. Even if it could be done immediately, what is the level of checks, the level of complexity, the level of technology and the investment needed to do it in a way that satisfies the requirements of both the UK protecting its borders and the EU protecting its borders? What then would be the final cost to the end user? Should it be more expensive for our goods to be sold in the south or, vice versa, things coming in? There is a cost implication. There is a technology implication. But the biggest one for me is that exam question about SPS. If we could solve that in an affordable way, we would be close to a solution.”
301.Other witnesses doubted that a viable alternative to the Protocol existed. The SDLP stated that they “did not want Brexit, and the Protocol was certainly not our preferred mitigation for the island of Ireland from hard Brexit. But on the basis of choices in London, special arrangements for Northern Ireland were essential and indeed inevitable … The Protocol must be delivered, not least because of the absence of any credible alternatives.” They argued that the balance of opinion in the business community is that making the Protocol work, mitigating challenges and exploiting opportunities is the most sensible course.
302.As we have seen, Sinn Féin acknowledged that “the Protocol is not perfect, but it mitigates the worst of Brexit. It is an internationally agreed and binding treaty that prevents a catastrophic land border … The Protocol is the only way forward, and both parties must be honest and willing to compromise in order to produce real and lasting solutions.”
303.Professor Morrow said that any alternatives were “fraught with difficulties”:
“Northern Ireland poses problems to anything that is designed on a bilateral basis and is designed to create what might be called firm or hard frontiers. Enforcement by one state of regulations against another, or at least in the face of another, is always going to create huge difficulties in Northern Ireland.”
304.Louise Coyle said that “we have to find resolutions within the Protocol until such time as something else is proposed and agreed. At the minute, we are where we are. That can be achieved only through dialogue, developing trust and looking at where the difficulties are.”
305.Jonathan Powell told us:
“It is possible to solve the practical problems … but the identity problems cannot be solved. There will be identity problems one way or another … In the last six years, we have been looking for different solutions that might not impact the Good Friday Agreement in such a serious way. So far, no one has come up with a convincing alternative. There is the alternative of putting the border in the Celtic Sea between the island of Ireland and the rest of the European Union, but in no circumstances would that be acceptable to the Irish Government or to the EU, so we can rule that one out. People have talked about technology as a solution. All the way through the referendum campaign, people talked about a magic solution that could get rid of borders all around the world, but so far that solution has not yet realised itself.
“This all takes us back to the Protocol … That is why it is so important to make the Protocol work instead of wasting time saying that there is an alternative, because there is not one. We have not found one and we are not going to find one.”
306.In its statement after the 9 June Withdrawal Agreement Joint Committee, the Commission stated:
“The Protocol is the solution that was found together with the UK, after four years of intense negotiations, to address the serious consequences that Brexit and the UK choice to leave the EU Single Market and Customs Union would have for Northern Ireland … There is no alternative to the Protocol. Its full implementation is a priority for the EU and we will not accept anything less from our UK partners.”
307.Notwithstanding the EU’s view, and that of some witnesses, that there is no alternative to the Protocol, the reality is that the Protocol itself contains significant qualifications to such an assertion. Under the democratic consent mechanism in Article 18, Articles 5–10 of the Protocol (governing customs, the movement of goods, the UK internal market, VAT and excise, the Single Electricity Market and State aid), will cease to apply two years after a vote by the Northern Ireland Assembly that they should do so. Furthermore, Article 18(4) places an obligation on the UK and the EU, in the Withdrawal Agreement Joint Committee, to bring forward recommendations for subsequent necessary measures in line with the Belfast/Good Friday Agreement.
308.Lord Frost said that “the EU should be careful when it says that there are no alternatives to the Protocol, because it implies that the consent vote that is there in the Protocol is a meaningless vote. If there is no alternative to the Protocol, what is that vote about?”
309.As we have noted, Lord Frost acknowledged:
“There will always need to be some kind of tailored treaty relationship between us and the EU that covers Northern Ireland. What happens in Northern Ireland in this area will always be, to some extent, exceptional, and we will always need a treaty relationship to cover that. In that sense, to those who simply say the Protocol should disappear and that would solve the problem, I would say that I do not think that is a realistic assessment of the situation.”
310.Lord Frost said that he believed that a workable Protocol was deliverable, but:
“The question is: what do we need to do? I think we need to have the quality of discussion with the EU that explores whether the current very serious difficulties can be resolved within the framework of the Protocol, or whether we need a more fundamental discussion on some aspects of the way it works … Both sides have an interest in supporting the Belfast/Good Friday Agreement. The delicate balance need not disrupt everyday lives in Northern Ireland. … If the Protocol as it is operating is not delivering that, both sides have … an obligation to try to deal with the situation”.
311.We acknowledge the principled opposition of many in the unionist and loyalist communities to the Protocol, in view of the Protocol’s impact on Northern Ireland’s relationship with the rest of the UK. But we also acknowledge the position of many nationalists and republicans, in particular, that the Protocol, while imperfect, is a necessary (and the only) means to avoid a hard border on the island of Ireland following UK withdrawal from the EU.
312.Witnesses have put forward a number of alternatives to the Protocol, including provisions in UK law, a new UK-Irish treaty, customs derogations or a model of mutual enforcement. While such suggestions should be taken seriously, they all present their own challenges. A consensus has yet to emerge behind any alternative, notwithstanding an intensive search for solutions in the five years since the referendum. We invite those opposed to the Protocol in principle to submit proposals for a comprehensive practical alternative consistent with the method of Brexit (with no alignment to EU trading or customs rules) adopted by the Government, or any other alternatives, and which are also consistent with the Belfast/Good Friday Agreement. We will examine the feasibility of any such submitted proposals in our future work.
313.Given its wish to uphold the Withdrawal Agreement and to hold the UK to its legal obligations under it, the Commission is anxious to stress that “there is no alternative to the Protocol”. Yet under Article 18 of the Protocol, the EU and the UK have an obligation in the Joint Committee to propose necessary measures in the event that the Northern Ireland Assembly does not support the continued operation of Articles 5 to 10 of the Protocol. That being the case, both sides have a continuing obligation to consider alternatives.
314.In the meantime, there is an equal obligation on all sides to find resolutions within the Protocol, to provide stability and certainty to the businesses and people of Northern Ireland, and to meet the commitment in the Protocol that it should have as little impact as possible on the everyday life of communities in both Ireland and Northern Ireland. That requires the UK and the EU to uphold their obligations under international law and to work together in a renewed spirit of urgency, partnership and trust.
240 (Aodhán Connolly)
241 Written evidence from the Northern Ireland Business Brexit Working Group (). See also (Stephen Kelly).
247 Written evidence from the UUP ()
248 Written evidence from the DUP ()
252 Written evidence from the SDLP ()
254 European Commission, Statement by the European Commission following the eight meeting of the EU-UK Withdrawal Agreement Joint Committee (9 June 2021): [accessed 21 July 2021]
255 European Commission, Examples of flexibilities identified by the European Commission in an effort to ensure the full implementation of the Protocol on Ireland/Northern Ireland (9 June 2021): [accessed 21 July 2021]
256 European Commission, Statement by the European Commission following the eight meeting of the EU-UK Withdrawal Agreement Joint Committee (9 June 2021): [accessed 21 July 2021]
259 Written evidence from the Northern Ireland Business Brexit Working Group ()
260 Written evidence from Alliance Healthcare UK (), Gray and Adams Ltd (), Norgine Pharmaceuticals (), College of Podiatry (), Healthcare Distribution Association () and PAGB ()
261 Written evidence from Teva UK Limited ()
263 Written evidence from Gray and Adams Ltd ()
264 Written evidence from Society of Motor Manufacturers and Traders () and SDC Trailers Ltd ()
268 Written evidence from the NFU () and the Ulster Farmers’ Union ()
273 Cabinet Office, Press Release: UK statement on the meeting of the Withdrawal Agreement Joint Committee (9 June 2021): [accessed 21 July 2021]
274 European Commission, Examples of flexibilities identified by the European Commission in an effort to ensure the full implementation of the Protocol on Ireland/Northern Ireland (9 June 2021): [accessed 21 July 2021]
277 RTÉ, ‘Signs of agreement on NI Protocol soon as talks continue’ (28 May 2021): [accessed 21 July 2021]
278 European Commission, Examples of flexibilities identified by the European Commission in an effort to ensure the full implementation of the Protocol on Ireland/Northern Ireland (9 June 2021): [accessed 21 July 2021]. See written evidence from Ambassador Vale de Almeida ().
279 European Commission, Examples of flexibilities identified by the European Commission in an effort to ensure the full implementation of the Protocol on Ireland/Northern Ireland (9 June 2021): [accessed 21 July 2021]
280 European Commission, Press Release: EU-UK relations: solutions found to help implementation of the Protocol on Ireland and Northern Ireland (30 June 2021): [accessed 21 July 2021]
286 Written evidence from the Environmental Governance Island of Ireland Network ()
289 . They stated that the Commission had recently notified the UK in the Joint Consultative Working Group of a “drop of new measures”, including list of over 800 measures, many of which had already been adopted, covering a three-month period. Our understanding is that the Commission offers a different perspective on the circumstances of the provision of this information. We will investigate this issue, and the work of the Joint Consultative Working Group, in the coming months.
295 Written evidence from Ambassador Adrian O’Neill ()
296 (Professor Katy Hayward)
297 Joint letter from Rt Hon Arlene Foster MLA, First Minister and Martin McGuinness MLA, deputy First Minister, to Prime Minister Rt Hon Theresa May MP, 10 August 2016: [accessed 21 July 2021]
299 Joint letter from Rt Hon Arlene Foster MLA, First Minister and Michelle O’Neill MLA, deputy First Minister to Vice President Maroš Šefčovič, 5 November 2020: [accessed 21 July 2021]
300 Written evidence from the DUP () and the UUP ()
301 (Dr Tom Kelly) and (Duncan Morrow)
302 Written evidence from the Environmental Governance Island of Ireland Network ()
303 and note by witness inserted as a footnote to the transcript.
304 Written evidence from Sir Nigel Hamilton KCB and Mary Madden CBE ()
309 BBC News, ‘Brexit: Taoiseach insists he listens to unionists over NI Protocol’ (27 June 2021): [accessed 21 July 2021]
310 Written evidence from Ambassador Adrian O’Neill ()
312 Written evidence from the DUP ()
313 Written evidence from the TUV ()
314 Commission Implementing Regulation (EU) 2021/111 of 29 January 2021 making the exportation of certain products subject to the production of an export authorisation (31 January 2021)
318 Written evidence from the SDLP ()
319 See para 113.
320 Written evidence from the DUP ()
321 Article 18 is the so-called democratic consent mechanism.
333 Written evidence from the DUP ()
334 Ulster Unionist Party, EU Withdrawal Agreement Backstop - alternative ways ahead? (February 2019): [accessed 21 July 2021]
335 Ulster Unionist Party, NI Protocol: UUP practical solutions paper (1 February 2021): [accessed 21 July 2021]
336 Written evidence submitted by the Loyalist Communities Council () to the House of Commons Northern Ireland Affairs Committee inquiry on Brexit and the Northern Ireland Protocol
337 Centre for Brexit Policy, Correcting the damage caused by the Northern Ireland protocol: How mutual enforcement can solve the Northern Ireland border problem (February 2021): [accessed 21 July 2021]
340 Written evidence from the SDLP ()
341 Written evidence from Sinn Féin ()
345 European Commission, ‘Statement by the European Commission following the eighth meeting of the EU-UK Withdrawal Agreement Joint Committee’, 9 June 2021: . See also written evidence from Ambassador Adrian O’Neill ().