The ink may not have long dried on the Brexit agreement. However, already major tensions have surfaced over the specifics of its implementation, leading to calls among his backbenchers for the British Prime Minister Boris Johnson to trigger Article 16 of the Northern Ireland protocol.
The backdrop to this issue is the row between the European Union and the pharmaceutical company AstraZeneca, over pre-ordered vaccine doses. A significant shortfall has arisen, which has led to uneven distribution.At least initially, the EU claimed that by failing to provide the ordered doses, AstraZeneca had violated its contract. By contrast, the UK had come to its own independent agreement with AstraZeneca, which took precedence over the companies deal with the EU. In response to the UK getting its full quota of doses while the EU did not, EU officials threatened to use Article 16 to block exports of the vaccine from AstraZeneca European manufacturing centres to the UK.
This provoked an almighty backlash, particularly from among the ranks of the pro-Brexit contingent in the ruling Conservative Party. The EU backed down over its threat to trigger Article 16. However, the damage has been done, and a further deterioration in already strained relations appears inevitable.
Indeed, it is now the UK government which is talking about the possibility of triggering Article 16. This comes following pressure from Northern Irish politicians, who have raised concerns about their constituents’ difficulties in a month or so since Brexit.
These difficulties revolve around issues of cross-border trade. In particular, farmers have seen produce and livestock prevented from crossing the border between Northern Ireland and the Republic.
It is an undesirable situation, but one which has long dogged the Brexit talks. An impossible bind: The border question turned into one of Brexit’s biggest headaches, which has plagued negotiations between the EU and UK from almost the very moment they began.
On the one hand, maintaining an open border between the North and the Republic is enshrined in the Good Friday Agreement. Unrestricted movement across this frontier constitutes an important part of the peace process, and any violation of this principle could see a return of the troubles.
On the other hand, however, it is challenging to see how the UK can leave the single market while maintaining an open border.
If the UK is outside the EU customs union, then either a hard border needs to be placed between Northern Ireland and the Republic, or in the Irish Sea, between the mainland UK and the province.
The only way to avoid this would be if the UK remained part of both the single market and customs union, though left the political institutions of the EU.
However, economical without political union though offering a possible solution was not acceptable to many Brexiteers. An alternative solution was thus required – the Northern Ireland protocol.
Under the Northern Ireland protocol, the Six Counties remains in the EU single market. This means that no customs checks are to be introduced on products before Brexit was exported from the EU to Northern Ireland.
The protocol was adopted to resolve the very sticky Irish border question, to ensure that no checkpoints were established along the troublesome border after Brexit.
Under Article 16, either side could decide to suspend the protocol elements if they believed to be resulting in ‘economic, societal or environmental difficulties.
“This whole episode exposes the deep – and to a significant extent irresolvable – geo-structural problems with which the Brexit negotiations have had to confront.”
This mechanism was designed as a failsafe, to be used if ‘serious’ problems arise. Following its triggering, which can be done unilaterally, the other side can take rebalancing actions in response.
However, problematically, there is no definition of precisely what in this context is meant by ‘serious’. Various commentators have highlighted the issues the protocol has raised, on account of its vagueness.
“This whole episode exposes the deep – and to a significant extent irresolvable – geo-structural problems with which the Brexit negotiations have had to confront. How is it possible for the UK to be both outside the EU, which means divergence in terms of customs, yet also maintaining an open land border with a state inside the single market?” Asked Theo Brzoza, an independent UK-based political analyst with a background in international relations.
This view has been echoed over the last few years by many others. Yet no real solution has been developed.
“Despite several years of negotiations, there still seems no real idea of how to square this particular circle. The protocol was more like a sticking plaster. A convenient fudge allowed negotiations to progress but did not actually set anything in stone regarding the border issue,” Brzoza said.
Because no definitive solution to the Irish border issue was found, the potential for disputes remained. However, few onlookers thought the protocol would be revealed as inadequate as quickly as that has happened.
“There was an impression, I think, particularly among British officials, that the protocol arrangements would allow some breathing room,” Brzoza added, “however from the moment Brexit came into force, problems emerged. Blame can be apportioned to both sides. But, ultimately, it is the impossible bind which all parties find themselves in that is to blame.”
Brexit, in short, promised contradictory things. The UK was to leave the single market and customs union, yet frictionless trade would continue.
That was always a tall – arguably impossible – ask. These, however, were the seeds which were sown. And the current tensions, in turn, are the fruit they have flowered.
Feature image by gdtography via Pexels CC.
Edited by Betty Wales-Hulbert, Tom Tyers and Emil Brierley.