The Irish Times view on the Northern Ireland protocol: the price of repudiation

The concession yesterday by UK Brexit minister David Frost that there is still room for a few weeks' talk on the Northern Ireland protocol is a welcome, albeit partial, winding down of the inflammatory rhetoric on the issue. It is perhaps even a sign that the EU's more robust threats of retaliation in the event of its repudiation have given London pause.

But none of the negotiating challenges have gone away. In three weeks’ time we will be back where we were yesterday, on the brink of a trade war. Frost gave no hint of willingness to engage meaningfully with the European Commission’s package of proposals to ease checks on the Irish Sea, or to withdraw impossible demands that the writ of the Court of Justice of the EU does not run in the North, even while the latter remains in the EU internal market. And Frost yesterday again brandished the nuclear threat: the use of the protocol’s article 16 to repudiate its provisions.

The article allows the suspension of the protocol’s provisions in the event of “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”, allowing the EU unilaterally then to take proportionate “rebalancing measures” in retaliation. Brussels has been considering such sanctions, but there are fears that punitive actions confined to the protocol’s remit, notably NI-UK trade, will not represent either sufficient economic leverage on the British, or may simply increase pressure on the Government in the Republic to police trade on the Border – precisely what the protocol was supposed to avoid.

The alternative sanctions approach, publicly floated by Minister for Foreign Affairs Simon Coveney and backed by many member states, is for the EU to abandon all or part of the Trade and Co-operation Agreement (TCA), struck post-divorce/Withdrawal Agreement (WA) in late 2020, and which was always conditional on the latter’s agreement and then implementation. Instead of facing Northern Ireland-specific measures, the UK could face tariffs and possible quotas on all its exports to the EU.

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Government and EU try to dissuade UK from triggering article 16

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Not only did the UK sign up in 2019 to the protocol, but it incorporated in the TCA obligations to implement the WA as “an integral part of the overall bilateral relations”, and in “good faith” it committed to “take all appropriate measures... to ensure the fulfilment of the obligations” arising from both treaties.

In the European Council, diplomats say, even Germany, which has been on the more cautious side of responses to the invoking of article 16, nevertheless argues that if the EU strikes back, it should do so strongly by reimposing tariffs across the board, rather than going for more narrow, fine-tuned retaliation.

The UK must learn that there is a hefty price to pay for reneging on treaties.