Following remarks by UK Minister of State Lord Frost in Lisbon today, EU Commissioner Maros Sefcovic will on 13 October unveil proposals to simplify the operation of the Northern Ireland protocol. The EU will offer that items of cultural importance and unlikely to be sent on to the Republic of Ireland (among them sausages, sandwiches, and cold meats) will not have to go through the full range of checks in the Irish Sea on the way from Great Britain to Northern Ireland. Procedures for a host of other items might also be relaxed, including for medicines approved by UK regulators but not by their EU counterparts.
However, the UK wants to rewrite the Northern Ireland protocol to end the jurisdiction of the Court of Justice of the European Union (CJEU) in Northern Ireland. This has been a red line for the EU. Brussels has been clear that if Northern is to be de facto largely in the single market and customs union, then the bloc’s mechanisms for judicial oversight must also apply. The UK will consider the EU’s proposals, and both sides will likely embark on a month-long period of intense negotiations to scope out a potential agreement.
If there is no agreement by early to mid-November, Article 16 could be invoked, allowing the UK to deactivate certain Irish Sea controls, for instance, for agri-foods. If the government wanted to trigger Article 16 over the role of the CJEU, this might be invalidated by UK courts, while the Lords could block new legislation to that effect. However, the UK can invoke Article 16 if applying the protocol “leads to serious economic, societal or environmental difficulties that are likely to persist.” The UK will argue that the protocol has had these negative effects and is, therefore, now opposed by all unionist parties.
The EU might retaliate. However, there is still political debate about how far the bloc should go how quickly. While France might prefer a stricter line, smaller and export-dependent economies would probably prefer steps stopping short of tariffs, instead targeting work towards granting the UK financial sector regulatory adequacy and UK participation in EU research and development funding schemes. The UK will calculate that it can live with whatever retaliatory measures the EU takes, as this will be a price worth paying for ensuring greater integrity within the union and keeping the unionist community and Brexiteer MPs happy.
At least as important could be UK attempts to blame the EU for the supply chain crisis that is, in reality, already badly affecting the post-Brexit UK – and which could turn into a veritable and politically risky cost-of-living crisis over the coming months. Still, views among EU member states may still differ as to which conclusion follows from this: respond in kind and impose retaliatory tariffs on key UK exports or try to avoid UK attempts to shift the blame on the EU.
Against this backdrop, a staged approach would seem to be the most likely answer from Brussels for now. However, hardliners such as France could still ramp up the pressure on the bilateral front, for instance, regarding security cooperation and concerning electricity supply for some of the Channel Islands amid an ongoing standoff over fishing rights. Paris might argue that Frost has already had enough success with his combination of aggressive negotiation, unilateral action, banking EU compromises, and then asking for more.