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Grace periods created to ease implementation of the Protocol

The full details of how the Northern Ireland Protocol (the Protocol) would operate were not decided by the EU-UK Joint Committee, set up under the UK-EU Withdrawal Agreement, until December 2020. This gave little time for business in Northern Ireland (NI) and Great Britain (GB) to prepare for the new regime. The EU and UK agreed therefore, to simplify some procedures for a short period and temporarily suspend the full application of EU law to NI that mandated checks and controls in several parts of the Protocol, in a series of what became known as “grace periods”.

Some of the most consequential of these were:

  • a three-month grace period for supermarkets and their suppliers, for EU agri-food rules;
  • a six-month grace period for supermarkets for EU rules on certain types of chilled meats, such as sausages;
  • a one-year grace period for implementing in full the EU’s rules on testing and selling human and veterinary medicines.

Despite these grace periods, problems with moving goods between GB and NI have emerged, and businesses are concerned that these issues will get worse when the grace periods end and are looking for permanent solutions.

UK asks for more flexibilities and extends some grace periods

In response the UK has since asked the EU for flexibility in several other areas, such as steel quotas, the movement of livestock, and the movement of pets.

The UK unilaterally extended the three-month agri-food grace period in March 2021. In response the EU started an enforcement mechanism, raising tensions between the two sides. In June 2021, the UK then asked the EU to extend the six-month grace period for fresh meats, which the EU has granted for a further three months, alongside announcing several proposals for new Protocol flexibilities.

Flexibilities requested and granted

The EU’s proposed solutions included flexibilities for the movement of guide dogs, the movement of livestock from GB to NI, and a requirement for UK drivers to show motor insurance green cards. The EU also agreed to change the application of EU law to ensure that medicines from GB can move into NI without constraints that might affect supplies in the region.

Article 16

The Protocol includes an emergency brake mechanism that allows either party to introduce emergency measures to deal with serious difficulties arising from implementing the Protocol. This is set out in Article 16.

Unionist politicians in NI have been calling for the UK Government to trigger Article 16 to stop checks and controls on goods entering the region.

Command Paper on ‘the way forward’

On 21 July 2021, the UK Government published a Command Paper. The paper in part reiterated the Government’s calls for the EU to show more “flexibility” and “creativity”.

Specifically, it suggested that the EU could use the “at risk goods” principle used under the Protocol for applying tariffs to GB-NI trade to both customs and Sanitary and Phytosanitary (SPS) checks (checks on agri-food, plants and animals), to differentiate trade based on its destination. Goods that were destined for Northern Ireland would not require customs processes and most SPS checks, while those moving to Ireland would have full customs and SPS formalities which the UK would enforce.

The Government asked for the grace periods to continue indefinitely and for the EU to halt its legal proceedings while the EU and UK negotiated.

The paper also proposed some significant new changes to the Protocol, asking for the jurisdiction of the Court of Justice of the EU (CJEU) over the Protocol to be removed, as well as restrictions on State Aid. It also requested new flexibilities in areas such as VAT and for medicines to be removed from the scope of the Protocol entirely.

On Article 16, the Government said it believed the threshold for triggering it had been reached but it would not do so yet, hoping for further solutions in the negotiations.

EU reaction

The EU rejected renegotiating the Protocol, pointing to the new flexibilities it had already proposed in areas such as medicines and the movement of live animals.

It said, however, it would continue to engage with the UK, including on the suggestions made in the paper. While it was ready to continue to seek creative solutions, they should be “within the framework of the Protocol”.

On 27 July the EU said that it would halt legal proceedings against the UK for breaching the Protocol, “in order to provide the necessary space to reflect on these issues and find durable solutions to the implementation of the Protocol”.

NI reaction

DUP leader, Sir Jeffrey Donaldson MP, welcomed the paper as a “step in the right direction”, but said permanent solutions were needed. His party wants the Protocol removed. Sir Jeffrey warned that if solutions are not found soon, he may remove his party from the Executive, also said he would direct DUP Ministers to not implement any new checks on goods at NI ports, and ask his Members of the Assembly to not pass any new legislation required to keep NI in line with EU single market regulations.

Sinn Féin rejected the paper, calling for the UK Government to implement the Protocol it negotiated and agreed to, saying it must not be allowed to “renege on international law”.

The Social Democratic and Labour Party (SDLP), Ulster Unionist Party (UUP), and Alliance parties all advocate for the EU and UK to sign up to some form of veterinary/SPS agreement aiming to significantly reduce the number of checks on agri-food products moving from GB to NI. However, while the UUP welcomed the Command Paper as “providing a potential pathway” to sorting out the Protocol, the SDLP and Alliance criticised the UK Government’s approach calling on them to engage with the EU.

EU publishes detailed proposals in response to Command Paper

On 13 October 2021 the EU published a detailed response to the UK’s Command Paper. It said it would not accept any changes to the CJEU’s role in enforcing the Protocol, and did not respond to UK proposals on changing the Protocol’s provisions on State Aid and VAT.

The bloc did propose some changes to simplify customs checks by expanding the definition of goods ‘not at risk’ to cover more goods and reducing customs formalities, including declarations, for those goods.

It also proposed simplified SPS checks for retail goods: Lorries moving goods from GB-NI carrying multiple products will only need one Export Health Certificate; documentary checks would be digitised; and the frequency of physical inspections reduced.

The EU said that it would agree to GB chilled meats and sausages to be sold in NI, but these products would require individual certificates, must comply with EU production requirements, and carry special labelling.

Overall, the EU said these proposals would mean the reduction of SPS checks by 80% and Customs checks by “at least” 50%, but it appears this would be compared to the full checks mandated by the Protocol, rather than the lighter-touch grace periods regime currently in place.

Lord Frost resigns, Liz Truss becomes UK chief negotiator

In December 2021, Lord Frost resigned from the Government, and the Foreign Secretary, Liz Truss, took over his responsibilities as UK chief negotiator for the talks on the Protocol and Co-Chair of the Joint Committee.

Despite an intensification of talks in early 2022 and talk of a “cordial atmosphere” between the two sides, there has been no breakthrough.

Agriculture Ministers tries to block checks, First Minister resigns

In February 2022, DUP Agriculture Minister, Edwin Poots, directed civil servants to stop conducting SPS checks, the other parties in the NI Executive disagreed with this move, and Mr Poots direction was challenged by a judicial review, with the checks still taking place while the legal arguments take place.

On 3 February 2022 Paul Givan of the DUP resigned as First Minister of Northern Ireland. This meant Sinn Féin deputy First Minister Michelle O’Neill also relinquished her post. The Northern Ireland Executive was no longer able to meet as it is chaired jointly by the First and Deputy First Ministers. Other Executive ministers remained in post, although they could not take any new decisions.

Mr Givan cited ongoing disagreements regarding the Ireland/Northern Ireland Protocol for his decision to stand down.

The UK Government said it would not call early elections, so they remain scheduled for 5 May 2022. It appears there may be no breakthrough in the Protocol negotiations between the EU and UK before then.

Proposals for permanent solutions

A more permanent solution to controls on animals and plants, (SPS checks) would be for the UK and EU to sign a veterinary agreement.

Two of the EU’s veterinary agreements have been suggested as models for an EU-UK deal, one with Switzerland, and another with New Zealand (NZ). The EU-Swiss agreement removes almost all checks and paperwork. However, it requires Switzerland to align to the EU’s food and plant safety and animal health rules.

The EU-NZ agreement is an ‘equivalence agreement’, in which both sides certify their rules and regulations are equivalent to each other, which would significantly reduce the number of checks.

The UK Government has said it would consider a NZ-style equivalence agreement, but not one that constrains it from signing trade agreements with other countries.

Other suggested solutions for problems in trading goods include “trusted trader schemes” and building on the “at risk goods principle” used for applying tariffs on agri-food goods moving from GB to NI .

There have also been calls for Northern Ireland’s political institutions and civil society to have a greater say on Protocol-related discussions between the EU and UK.

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