Protocol’s flaws there for all to see as both sides eye up compromise

Sam McBride

There was a way for Boris Johnson to make much of the Irish Sea border vanish in far smarter and less rancorous circumstances than now exist, but it would have exposed the British prime minister’s serial dishonesty on the issue.

The way in which the Northern Ireland Protocol has been bound up with tribal arguments has obscured the fact this deal was, in purely practical terms, enormously flawed from the outset — and both sides who negotiated it are culpable.

That is demonstrated by the fact almost no one now wants the protocol implemented, even if its supporters do not put their view in those stark terms, talking instead about tweaking the protocol.

The EU has moved unilaterally to ditch much of the Irish Sea medicines border, belatedly realising it would be a PR catastrophe if people died for lack of access to drugs available in Britain. The EU is now pondering proposals to soften the customs border and the border for goods containing plant or animal material, in large part because it knows even protocol supporters no longer want it to be fully applied.

Most people in Northern Ireland do not need to think about customs declarations, export health certificates or the multitude of other Irish Sea border processes. Outside of delays in deliveries and many online British retailers refusing to sell to Northern Ireland, most consumers have seen only modest changes.

This is partly because the protocol has never been implemented. Johnson put in place “grace periods” — effectively phasing in the border — which have become semi-permanent. Other changes, such as banning plants with British soil entering Northern Ireland, have been reversed after a few months.

Supermarkets were able to negotiate unique carve-outs from much of what their smaller rivals face, buying the best lawyers and lobbyists to protect their interests. Even with that, Marks & Spencer’s Northern Irish customers are now buying products with one day’s less shelf life because of the extra time taken to process goods at the border.

Last week, a senior industry figure who moves millions of pounds of goods between Great Britain and Northern Ireland every week told me “if you remove the unilateral action [the grace periods], we’re bust”, and added that if the deal had been fully implemented on day one, “there would have been no day two”.

A more Machiavellian prime minister would have accepted this devastating short-term pain to establish publicly and conclusively that the protocol was unworkable, starting from there to negotiate something that could be durable.

But that would also have immediately exposed Johnson’s dishonesty. The man who had said there would be no checks and whose Northern Ireland Secretary nonsensically told the public “there is no Irish Sea border” on the day it began would have been politically naked.

It would also have been problematic for the SDLP, Sinn Féin, Alliance and the Greens, who had called for “rigorous implementation” of the protocol — not light touch or pragmatic implementation of the deal, as they now support.

Nevertheless, even protocol-lite is convincing growing numbers of people it is unimplementable — while there is also clear, if publicly unspoken, acceptance within the DUP that they will never wholly remove it. A senior figure on the right of the DUP admitted to me last week: “We know the whole protocol won’t be removed.”

The looming challenge for the DUP will be calculating how much protocol to accept. Too hardline a position will mean it’s never back in government, risking punishment by voters in the long run, while too weak a stance could see the party collapse in the short term as unionism’s mood hardens.

Behind the belligerent rhetoric, there is emerging the outline of a UK-EU compromise that the DUP might back. The argument is no longer about whether the protocol is implemented, but about how much of it is ditched and how that is done.

The EU may deny this. It says it will not alter the text of the protocol; just its implementation. But this is a semantic denial. On medicines, the EU left the bit of the protocol that says EU medicines regulations must apply, but then altered those regulations.

While Johnson’s slipperiness understandably makes the EU wary, insisting the text of the protocol is unaltered when everyone can agree that some of it is causing absurdities makes little sense. The protocol is not holy writ, nor is it the only way in which this issue could be resolved. That is already clear from the EU dropping chunks of the sea border.

Adopting theological purity over a transparently imperfect deal may help protect the EU’s single market, but it demonstrably does not improve stability in Northern Ireland or do anything to help firms grappling with its demands.

One of the protocol’s central problems is that it involves rules mostly written for containers or entire ships coming from China or Brazil. In those scenarios of goods travelling across the globe, such rules are there for good reason. But they are inoperable when applied to a tiny regional economy buying goods from the rest of that country.

A businessman in the food industry said that under the full protocol, a single case of Swedish meatballs travelling from Cairnryan to Belfast would require a CHED form costing £25 (€29.50), customs declaration (£30), export health certificate (£125) — and then a charge at the port for inspecting all the costly paperwork (£45).

That’s £225 in bureaucracy — not including transport costs — for a product valued at £50. The red tape would be the same if an entire lorry load of the product was arriving, meaning this is a particular problem for small firms or niche products.

Johnson has been spending big on trying to hide the bits of the sea border he did implement, paying hundreds of millions to complete much of this paperwork. But that money is running out, and so may be time on Johnson himself.

Given his serial dishonesty, the temptation to make him squirm on this is understandable. That may be satisfying for those not directly impacted, but this problem will long outlast the man who helped give it birth.

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