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Is the UK making too much of the EU's blunder over Northern Ireland?

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By Alasdair Sandford
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Vehicles at the port of Larne, Northern Ireland, Tuesday, Feb. 2, 2021.
Vehicles at the port of Larne, Northern Ireland, Tuesday, Feb. 2, 2021.   -   Copyright  AP Photo/Peter Morrison
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The recent row over the European Commission's ill-fated — and quickly ditched — proposal to invoke emergency provisions under Brexit deal concerning Northern Ireland has put the divorce agreement itself under the spotlight.

Against the backdrop of a chaotic first few weeks of post-Brexit trade, the British government has called for a "reset" in its relations with the EU.

Ahead of a meeting with Brussels officials on Thursday, the UK Brexit minister Michael Gove has said arrangements under the deal are "not working at the moment".

Commission President Ursula von der Leyen apologised on Wednesday for "mistakes" made last month when export controls on coronavirus vaccines were briefly considered from Ireland, an EU member, and Northern Ireland, which as part of the UK has now left the 27-member bloc under Brexit.

The row has provided ammunition to some calling for agreed post-Brexit arrangements over Northern Ireland to be scrapped.

Although the UK government rejects this for now, it has been accused of exploiting the issue for its own political gain — and to deflect responsibility for complications that are largely of its own making.

How serious was the EU's error?

The EU Commission's proposal on January 29 — quickly withdrawn following an outcry — touched sensitive political nerves over the Irish land border. This is the very frontier that all sides have always agreed must remain open, both before the UK's June 2016 referendum and throughout the tortuous divorce negotiations that followed.

Amid the row over vaccine supplies, the Commission suggested invoking emergency measures under Article 16 of the Northern Ireland Protocol, which forms part of the EU-UK divorce deal and provides the framework for post-Brexit arrangements.

The plan would not have led to a "hard" land border, nor would it have stopped vaccine shipments, but it would have meant that export authorisations were needed.

The move was made without consulting London, Dublin, the Belfast assembly or even reportedly Michel Barnier, now special adviser to the Commission overseeing the Brexit trade deal's ratification.

Although the proposal was revoked within hours, political sensitivities were inflamed and the torrent of criticism from across the spectrum continues almost two weeks later.

"It is unacceptable that the Commission didn't see the potential of destabilising the Withdrawal Agreement and the Good Friday Agreement," Sinn Féin MEP Chris MacManus told the European Parliament on Wednesday. "Now we must ensure that the fiasco isn't repeated".

"It was a moment when trust was eroded, when damage was done, and where movement is required in order to ensure that we have an appropriate reset," Michael Gove, the UK minister overseeing the Brexit deal's implementation, told a parliamentary committee on Monday.

What is the UK government's stance?

On Thursday Gove is to meet the Commission's vice-president Maroš Šefčovič to sort out what he has described as "disruptions and difficulties faced by Northern Ireland citizens in their daily lives", resulting from post-Brexit trading arrangements.

The complex arrangements and new red tape demands imposed on goods entering Northern Ireland from Britain have led to disruption and some shortages. There are checks, controls and customs declarations. New border control posts have been set up.

Although there was no evidence of paramilitary involvement, threats of violence against port staff resulted in the temporary suspension of some checks on animal products and food.

In a letter to Šefčovič on February 2, Gove castigates the EU over its move on Article 16 and uses it as justification to demand extensions to various grace periods concerning new trading arrangements, and changes to the Northern Ireland Protocol itself.

He has since rejected a call from Northern Ireland's Democratic Unionist Party (DUP) for the government to scrap the Protocol by itself triggering Article 16. "We believe there are ways of working with the Commission in order to resolve the very real issues that exist on the ground,” he said before the committee this week.

However, he left the door open to action if issues are not resolved: "As the Prime Minister has spelt out, if we can’t make progress in resolving those issues then the UK Government has to reserve its rights."

"We will do everything we need to do... whether legislatively or by invoking Article 16 of the Protocol... to ensure that there is no barrier down the Irish Sea and... business unfettered between Northern Ireland and the rest of this country," Boris Johnson told the House of Commons on February 3.

Do Johnson's 'Irish Sea' protests hold water?

The prime minister and some government colleagues have persistently claimed that there is no new trading border between Britain and Northern Ireland, and yet this is precisely what was created under the Brexit deal they strove for.

A sea border is necessary given the UK's decision to leave both the EU's Single Market and Customs Union, the political imperative of keeping the North-South land border open under the peace accord, and the absence of alternative technological solutions.

The conundrum plagued the government of Johnson's predecessor Theresa May, whose "backstop" insurance proposal envisaged keeping the whole of the UK in the EU's customs territory. It caused a prolonged political storm, her own downfall and delayed Brexit itself.

The current prime minister's deal with the EU — which paved the way for the UK's exit via a resounding election victory — ditched the backstop. But it gets around the land border problem by keeping the North aligned to EU Single Market rules and obliging it to follow the EU customs code.

Yet the government's own impact assessment in October 2019 — when the ink on the deal was barely dry — predicted consequences for "all UK businesses that move goods between Great Britain and Northern Ireland", with "fixed and variable costs" having a "disproportionate effect" on small and medium-sized businesses in particular.

The detail was enshrined in the Northern Ireland Protocol as part of the binding Withdrawal Agreement. It was endorsed by the EU and the UK parliament, thanks to the Johnson government's large new majority.

What do they say about the Protocol now?

"We need refinement of the way in which the Protocol operates... The overarching aim of the Protocol is to make sure that the gains that the people of Northern Ireland have enjoyed in the last 20 or so years are consolidated and built on. At the moment... there are concerns across communities in Northern Ireland about the impact." — Michael Gove, UK Cabinet Office Minister, to House of Commons European Scrutiny Committee.

"The Protocol on IE/NI is a cornerstone of the WA and the only way to protect Good Friday (Belfast) Agreement in all dimensions, protecting peace & stability on the island of Ireland. Has always been EU's absolute priority." — Maroš Šefčovič, EU Commission vice-president and co-chair of EU-UK Joint Committee, on Twitter.

"If we can fix the protocol with the EU’s acquiescence, that is plainly better than abrogating it unilaterally. Fixing it, though, must mean precisely that: not temporary exemptions or extended grace periods, but permanent solutions... If Brussels is not prepared to countenance reform along these lines, we can scrap the whole protocol in good conscience." — Daniel Hannan, Conservative ex-MEP, an adviser to UK Board of Trade, writing in the Sunday Telegraph.

"Some of us spent years warning hardcore Brexiteers that they would not get an FTA (Free Trade Agreement) without a separate arrangement for NI and the more distant the GB/EU relationship the more painful it would be to GB/NI trade. They didn't listen." — Gavin Barwell, ex-Chief of Staff to ex-Prime Minister Theresa May, on Twitter.

"The complex and messy situation we are now in – including the ongoing and expected to increase disruptions to goods flows between GB and NI – is the result of Brexit in general, and of the particular way that Johnson’s government chose to implement Brexit... Brexit threw a huge rock into the high delicate and fragile machinery of the Northern Ireland peace process... The Protocol averts the worst of the damage, by preventing an Irish land border, but that doesn’t prevent there being any damage at all." — Chris Grey, Emeritus Professor at the University of London and Brexit blogger.