Government accepts Irish Sea border is profoundly problematic – but isn’t going to reverse any of its bureaucracy for now

In a long-awaited statement to parliament today, Brexit minister Lord Frost said that “it is clear that the circumstances exist to justify the use of Article 16” – the nuclear option in the NI Protocol which allows for parts of the Irish Sea border to be stopped.

However, Lord Frost went on: “Nevertheless, we have concluded it is not the right moment to do so. Instead, we see an opportunity to proceed differently.”

The peer, who was Boris Johnson’s key negotiator of a deal which included the protocol and which 18 months ago the prime minister hailed in gushing terms, said that the government now wants to partly renegotiate the protocol.

The plan which he set out will not bring any comfort for businesses currently struggling with the new red tape because Mr Johnson wants to “freeze” things as they are to allow months of talks rather than immediately move to ditch some of what he implemented – something which would enrage Brussels, Dublin and Washington.

Even the partial renegotiation requested by the government was immediately rejected by the EU.

The tone of the EU response from Maroš Šefčovič was restrained, and he offered to keep talking, but the key line was clear: “We will not agree to a renegotiation of the protocol.”

However, DUP leader Sir Jeffrey Donaldson immediately moved to show support for what the government is doing. In a statement released just minutes after Lord Frost began speaking in the House of Lords, Sir Jeffrey welcomed it as “a significant step in the right direction by the government and an acceptance that the protocol is not sustainable”.

Sir Jeffrey – said that “sticking plasters and short-term fixes were never going to work. We need a proper renegotiation”.

Rounding on the EU, he added: “The rigid refusal by Brussels to even consider renegotiation of the protocol is symptomatic of how we reached this point. The EU has failed to recognise the concerns of unionists and has shown zero respect for the consensus approach which has helped secure peace and stability in Northern Ireland.”

The proposal set out by Lord Frost, Boris Johnson and Brandon Lewis in a joint command paper to parliament involves tough rhetoric, but no clarity as to when any of the current problems associated with the protocol will be practically addressed.

Writing in the forward to the command paper, Mr Johnson – who once spoke of his “oven-ready deal [which included the protocol]” now sets out a far gloomier picture.

The prime minister said: “The difficulties are so profound that I have had to consider whether safeguarding action is necessary under the Article 16 framework which the protocol provides.

“My conclusion is that the circumstances in which we find ourselves would justify such an approach. But I also conclude that there is still an opportunity to proceed differently and to agree with the EU a new balance in how the protocol operates because I believe that there is still political will to address shared problems on all sides”

At the heart of the 28-page paper is a plan to ditch the current system of checks on a small percentage of most goods coming into Northern Ireland from Great Britain and replace that with two streams at ports.

Similarly to how travellers decide when leaving an airport whether to walk through a channel stating that they have noting to declare or through another channel because they have some declarable item, hauliers would chose one of two channels at ports – one for goods exclusively going to Northern Ireland, and one for goods which might cross in the Republic.

Aware that the EU simply does not trust it, the government has attempted to reinforce that by saying that it will legislate to provide penalties for anyone who goes through the wrong lane, and will police it using intelligence and random checks.

The government said that “full customs formalities” would be required for goods going through Northern Ireland to the Republic, implying that even if the government gets its way some customs bureaucracy may remain for GB goods coming solely to Northern Ireland.

The paper, which in some areas is strikingly vague, referred to “a light-touch scheme” without clarifying what that would mean.

The government paper also contained some significant admissions. It said: “The protocol is clear that Northern Ireland is fully part of the United Kingdom’s customs territory. But this principle does not apply in practice due to the burdens of paperwork facing all trade moving from GB to Northern Ireland, and due to the absence of entirely tariff-free trade (for example where Northern Ireland traders, uniquely, have been unable to access either the UK’s or the EU’s Tariff Rate Quotas on products such as steel, and therefore face higher tariffs, because of legislation introduced by the EU after the protocol was agreed).”

The government stressed that it is not seeking to remove the entirety of the protocol, but instead focus on the parts which create the Irish Sea border.

It said: “These talks need not look at all aspects of the protocol. The longstanding arrangements for the Common Travel Area, the workings of the all-island Single Electricity Market, and the provisions that ensure there is no diminution of human rights in Northern Ireland as a result of the UK’s withdrawal from the European Union are not controversial.” Business and leaders have said there is an “urgent need” for an agreed solution between the UK and the EU.

Aodhán Connolly, director of the NI Retail Consortium, said: “While it is good to see that the UK Government has listened to the problems facing retailers, any solution that is not agreed by both sides cannot provide the certainty and stability that retailers and NI consumers need.”

Roger Pollen, head of the Federation of Small Businesses in Northern Ireland, said it had been highlighting to government and the EU the problems businesses are facing due to the protocol, particularly with the new red tape – although he said “some businesses undoubtedly welcome the protection the protocol provides”.

Article 16 ‘worded to deal with this issue’

Article 16 of the NI Protocol was deliberately worded to deal with the circumstances now unfolding as a result of the Irish Sea border, the government has argued.

Today’s command paper setting out the thinking of Boris Johnson, Lord Frost and Brandon Lewis includes a significant acceptance by them that the criteria for triggering Article 16 have now been met.

Unionist leaders have since January been calling for the triggering of Article 16, the nuclear option within the treaty which allows for radical measures to suspend parts of the protocol if they are causing certain serious problems.

Article 16 says: “If the application of this protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this protocol.”

Today’s government paper said: “This combination of serious economic and societal difficulties, along with the obvious diversion of trade, would justify a serious response under the framework of the protocol.

“Indeed the unusually broadly drawn text of Article 16 was designed precisely with such circumstances in mind, allowing for either party to act unilaterally with appropriate measures, in a proportionate way and in a manner necessary to remedy the situation... These [measures] could include a range of measures to deal both with the current issues arising in the application of the protocol (for example, chilled meats, parcels and so on) and also the broader arrangements under which goods enter Northern Ireland from Great Britain.”

However, the paper went on to accept that “there are of course limits on the actions that can be taken under Article 16. They are limited to the specific difficulties faced, are subject to the uncertainty of an as yet untested dispute settlement process, and would be temporary (though could nevertheless persist, provided they remained strictly necessary to remedy the situation)”.

Local parties split on government’s move

The Ulster Unionists joined the DUP in welcoming the thrust of what the government announced on the protocol.

UUP leader Doug Beattie said it was welcome to see movement in the direction of finding “pragmatic, workable solutions”.

“Solutions need to be found and intransigence will only serve to harm Northern Ireland,” the Upper Bann MLA said.

“If everyone is serious about protecting Northern Ireland and the Belfast Agreement, then we need to see space created for serious conversations around these proposals to take place.

“The Irish Sea border is causing serious problems and cannot be ignored. We will keep pushing for solutions to be found.”

DUP peer Lord Dodds said that “whatever the benefits [of the protocol] are, they’re massively outweighed by the disadvantages”.

He asked Lord Frost for an assurance that there would ultimately be no Irish Sea border. Lord Frost’s reply did not contain that commitment.

But SDLP leader Colum Eastwood said the government’s statement was the “latest in a car crash attempt to distance themselves from an agreement they negotiated, campaigned for and signed up to”.

He added: “It is a shameless position based on political expedience rather than providing the stability that people, businesses and communities in Northern Ireland need.

“There are very clearly issues with the operation of the protocol.

“But rather than pursuing the obvious solution to Irish Sea checks acknowledged by businesses operating in the current environment, which is an SPS (sanitary and phytosanitary) deal with the European Union, this government has decided to prioritise trade deals with other countries.”

Alliance MP Stephen Farry said the statement was “full of bluster and a rewriting of history”.

He added: “It creates more uncertainty and instability. The government is choosing confrontation rather than adopting the obvious solution on the table which is a comprehensive veterinary agreement.”

Sinn Fein’s junior minister Declan Kearney said the government could not be allowed to renege on international law.

He added: “It is not acceptable for the Tories to adopt an a la carte approach towards the protocol, to rewrite history and now attempt a renegotiation. If the protocol is to achieve its goals, then it needs to be implemented fully, not hollowed out by the British government.”

However, TUV leader Jim Allister immediately rejected the announcement as “gravely disappointing” and called for radical steps to remove the protocol entirely.

The North Antrim MLA said that despite the Government accepting that the problems were sufficiently serious to trigger article 16, it “stalls and prevaricates”.

He said: “If what HMG said today on the Protocol was the ‘good news’ promised by the DUP, through Edwin Poots, then, it is gravely disappointing. Mere words and pleas for realism from belligerent Brussels will change nothing.”

Mr Allister said that “mere tinkering” was insufficient and that the key test of the long-term situation would be “does it still leave us in a foreign single market for goods, subject to a foreign customs code, implemented by foreign laws and adjudicated upon by a foreign court?”

If that is the final outcome, the former MEP said that “nothing of importance will change and the constitutional change wrought by the Protocol will not have been reversed”.

He added: “With Article 6 of the Act of Union - the cornerstone of the Union – having been repealed, only the binning of the Protocol can and will change that

“So, my message to the Government today is ‘while you vacillate and procrastinate, the Union weakens and the prime minister fails in his pledge to maintain the integrity of the UK.’ And, my message to the unionist people is that we must continue relentless in opposition to the iniquitous Protocol, clear in the knowledge that if we don’t kill the Protocol, it will kill the Union.”

Sam McBride: Boris Johnson’s past dishonesty on the Irish Sea border has present consequences – how do we know if he’s now being truthful?

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