Activating the Nuclear Option? EU-UK relations and the Northern Ireland Protocol

By Robin Vandendriessche

The United Kingdom (UK) left the European Union on January 31st, 2020, when the withdrawal agreement entered into force. As protecting the 1998 Good Friday Agreement was an absolute priority for both parties, an Irish protocol was included in order to keep the land border open. Under the protocol, Northern Ireland still needs to apply EU product standards. Consequently, UK customs checks on goods entering Northern Ireland from Great Britain (GB) were moved to the border in the Irish sea.

Problems in moving goods from GB to Northern Ireland have mounted since the UK left the EU’s single market. Supply chains of businesses trading across the Irish Sea have been severely impacted, leading to repeated attempts of the UK to renegotiate the protocol. Brexit minister Frost stated that the UK would take unilateral actions if the EU did not consider this. The UK’s threat is not to be taken lightly as the protocol does provide such a possibility in Article 16.

In July 2021, the British government formally requested to start negotiations in order to rebalance the protocol by demanding additional flexibility and the minimization of existing trade barriers. The British government’s whitepaper on a way forward of July 2021 outlined several proposals such as ending the oversight of EU institutions, allowing goods that comply with UK rules to enter Northern Ireland if they stay there, even if they do not comply with EU law, and removing all customs checks for goods intended to stay in Northern Ireland.

The EU has refused to take the British proposals into account as they would require a fundamental renegotiation of the protocol that was ratified by the British parliament. On October 13th 2021, the European Commission responded to the difficulties in Northern Ireland because of Brexit by further facilitating the movement of goods from GB to Northern Ireland. The package of proposals outlines a different model for the implementation of the protocol with regard to goods that move from Great Britain and are destined to stay in Northern Ireland and focuses on cutting red tape and providing more flexibility. The facilitation is accompanied by safeguards to ensure that goods under such a regime do not move into the EU’s single market.

Approximately eighty percent of sanitary and phytosanitary controls for food will be cut as the EU addresses the shortages of fresh food in the region that, according to the UK, are caused by the protocol. Furthermore, EU law will be modified as medical infrastructure is no longer forced to relocate to Northern Ireland in order to allow GB to continue to act as a hub for the supply of generic medicines. This will likely not suffice as the UK  has also insisted on removing the obligation for some medicines to be licensed by the European Medicines Agency (EMA). The EU also proposes a stronger link between the Northern Ireland Assembly and the newly created EU-UK parliamentary assembly, necessary for monitoring the EU-UK trade and cooperation agreement. However, the EU does not propose to end European Court of Justice oversight over Northern Ireland, nor does it want to abolish state aid rules that apply to all British firms supplying goods to the region.

Boris Johnson’s former top aide Dominic Cummings claimed that the UK has always intended to ditch the protocol. A huge dilemma emerged for the Prime Minister as the European Commission’s proposals to amend the protocol have gone much further than the UK government was expecting. His threat to activate Article 16 now no longer seems justified forcing him to engage constructively. 

The British position remains difficult. Striking a deal after talking tough might be perceived as weak, especially when the UK’s most important demands are not met. It would certainly provoke criticism from hardline Brexiteers within the Conservative party as their reactions to the recent EU proposals were hostile, to say the least. Giving in would also mean that Brexit would finally be settled, which could have electoral consequences.

And still, the alternative for Johnson looks even worse as invoking Article 16 would almost certainly lead to legal action by the European Commission and the imposition of tariffs, thereby provoking a full-scale trade war. With gas and food shortages fresh in mind, it would continue to add to the impression of an incompetent government. Furthermore, blowing up the already strained relationship with the European Union would deal yet another blow to British business.

The EU now has a clear political and economic advantage in the Northern Ireland protocol talks by going substantially beyond the British government’s expectations and due to its economic weight. Whether or not the UK really takes back control remains to be seen.

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