All indications suggest that we are in the final stages of negotiations between the EU and the UK regarding the Northern Ireland Protocol and that a settlement should be announced in the coming weeks, streamlining the Protocol’s application and seeking to gain cross-community support for the post-Brexit settlement for Northern Ireland. 

It has been 18 months since the UK’s Command Paper Northern Ireland Protocol: the way forward and 15 months since the EU’s corresponding non-papers, and it looks like the settlement that will be reached will indeed be a compromise between these two positions. 

It looks certain that the EU will agree to a Green-Lane/Red-Lane approach to sanitary and phytosanitary (SPS) checks (checks to protect animal, plant or public health). Suggested in the UK’s Command Paper, this approach would allow SPS goods to enter NI with less onerous checks if they are destined for final consumption within NI.

The mechanics of how this will work at a granular level have not been made clear, but would likely entail a combination of labelling, data sharing (an agreement on which was agreed at the start of January this year) and an acceptance from the EU of a certain tolerance for leakage of a small proportion of goods onto the market in Ireland. The dual-lane approach would be a pragmatic compromise from the EU showing a genuine flexibility and is something that the Chamber has been calling for consistently. 

The role of the European Court of Justice (ECJ) as the final arbiter of EU law is the other key issue which needs to be settled over coming weeks for an agreement to be reached. It is being reported in British Media that a deal will see the retention of the ECJ as a court of last resort, but with a far greater role for Northern Ireland’s courts to make the vast majority of decisions, deferring to the ECJ only as they see fit. The retention of the ECJ is a red-line for the EU and had been touted as a red-line for the UK, this compromise would be welcome from both parties. EU sources would suggest that we are further away from a deal on this aspect than British Media reports suggest. The Chamber continues to liaise on this with the British Embassy, the Northern Ireland Office, the Department of Foreign Affairs and the European Commission. 

The 25th Anniversary of the Good Friday Agreement has been spoken of widely as a deadline to get a deal on the Protocol, but this has never been more than a soft target. Secretary of State for Northern Ireland, Chris Heaton-Harris, this month extended the deadline for Stormont elections out to January next year, with the Protocol the issue which has kept an executive from forming, removing the threat of imminent elections as a deadline for Protocol negotiations. Negotiations between the EU and the UK since Brexit have been characterised by talks going right up to the wire and deals being struck as the clock strikes midnight. Should a deal get over the line in the coming weeks, far from any cliff-edges, it bodes well for the future trading relationship, as both sides accept a mature, pragmatic compromise in a way that international relations should be handled. 

The Chamber believes that should a deal on the Protocol be reached, the EU and the UK should build on the subsequent goodwill by negotiating a Veterinary Agreement. This would further simplify the issues around SPS goods entering Northern Ireland, even through the dual-lane approach, but more so it would benefit British and Irish agri-food exporters. It would allow UK farmers to export their wares to the EU and vice-versa in what would be highly mutually beneficial. 

Similarly, we hope that the EU will immediately grant the UK associate status to its multilateral research funding programme, Horizon Europe, should a deal be struck. The programme is lesser for the absence of the UK, an issue which is particularly acute for Ireland. Under Horizon Europe’s predecessor, Horizon 2020, 47% of projects involving Irish organisations (academic and industry) had a UK partner (987 projects out of 2,096 funded). The European Commission has blocked the UK’s associate status due to the impasse over the Protocol. 

EU Retained Law Bill
While an agreement on the Protocol will hopefully signal the end of the Northern Ireland Protocol Bill (currently making its way through Westminster it would unilaterally end the application of the Protocol), another Brexit related Bill similarly threatens business interests as it passes through Parliament in the UK. The Retained EU Law Bill will wholesale remove ‘secondary’ EU derived laws unless they are converted into UK law by the end of the year. It is estimated that the Bill will affect roughly 4000 laws, however this figure has not been confirmed by the Government. 

Our members have grave concerns about the damage that this Bill will cause. Reviewing, amending and updating laws routinely is a necessary and worthy exercise, but the fundamental thrust of this Bill, scrapping all EU derived law unless proven worthy of retention, is flawed. Coupled with the short time frame involved, the Bill has the potential to heap further bureaucracy and uncertainty upon businesses, the opposite of its stated goal of removing unnecessary red tape.

There is no point in divergence for divergence’s sake. If there is a quantifiable benefit to removing a law and diverging from the EU, it should be explored. However, a law that is scrapped causing divergence with the EU without any upside, simply because it is derived from EU law is a self-inflicted wound by the UK on its own businesses. These non-tariff barriers to trade are far more costly to businesses than the tariffs themselves.  

The Chamber issued the following press release on the topic here.

Our Work on Your Behalf 
The Chamber continues to advocate on these and a range of other matters to policymakers in the UK, Ireland and the EU. We have in the past number of weeks had engagements with the British Ambassador, Minister Neale Richmond, the Northern Ireland Office, the Department of Foreign Affairs and the European Commission. In the coming weeks we have engagements with the Minister for European Affairs, Minister for Financial Services, First Minister Designate of Northern Ireland and the UK’s Trade Commissioner for Europe among others. 

We rely on the input and feedback of our members who are solely responsible for developing the Chamber’s policy platform. Do feel free to reach out to us if we can be of any assistance and to feed into our policy positions.