Newton Emerson: EU deserves credit for realism not generosity over North protocol

Micheál Martin has been a measured voice throughout this year’s tensions on the Northern Ireland protocol. He applied balm again last weekend, calling on the UK government to “reciprocate the generosity of spirit” the EU had shown days before, when it extended the grace period on chilled food and offered permanent mitigations on other subjects – most notably, to quote the Taoiseach, “providing relief on the pharmaceutical issue”.

This may have been the responsible line for a politician to take but it was a terrible explanation for what had just occurred.

The protocol requires medicines and medical devices brought into Northern Ireland from Britain to have separate licensing, testing and inspections, overseen by an EU regulator. A one-year grace period was included to allow supply chains to adapt.

By presenting the roadmap solution as its own, the EU was making a tactical retreat

As the year progressed, it quickly became apparent the medicines sea border was a practical and political absurdity. Private manufacturers began withdrawing vital products immediately. Northern Ireland has a monopoly medical provider – the National Health Service – which imports 98 per cent of its medicine from Britain. It cannot realistically source elsewhere, given the UK-wide processes it must follow, nor is it likely to become an international drug smuggler.

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The UK government was faced with a pointless requirement to shut down healthcare in Northern Ireland on December 31st. Obviously, it was never going to comply and the EU would have looked monstrous and ridiculous to have insisted upon it. The brief triggering of article 16 in February to block vaccines into Northern Ireland showed Brussels how badly such a move would have played.

A medicines supply cliff edge would, however, justify the UK triggering article 16, as Boris Johnson pointed out at the G7 in May. Two weeks before, the UK had offered a “roadmap” solution where medicines would still comply with EU requirements but be approved by a regulator in Britain. Time was pressing as the actual cliff edge turned out to be on June 30th: suppliers need to give six months’ notice of withdrawal of medicines and they were increasingly beginning to do so.

By presenting the roadmap solution as its own, the EU was making a tactical retreat. Even then it took matters right to the wire, only making its announcement on June 30th.

Brussels is sticking to the official line that a grace period is simply to adjust supply chains away from Britain

A few other trivial concessions were announced on the same day: Northern Ireland drivers will not need to carry an insurance green card in the Republic, a requirement neither the Garda nor insurance companies had any intention of enforcing; guide dogs will be allowed to cross the sea border, yet the needless ban on bringing in puppies to train as guide dogs remains.

The other major announcement on June 30th was the EU granting the UK’s request to extend the grace period on food shipments. The protocol bans chilled meat from Britain and requires certification and inspection of all other meat products.

A veterinary deal to remove many checks is clearly on the cards, somewhere between the EU’s preferred Swiss-style deal of alignment with its rules and the UK’s preferred New Zealand-type deal of recognising each other’s standards. In the meantime, Brussels is sticking to the official line that a grace period is simply to adjust supply chains away from Britain, while London says it is about making time for negotiating a different solution.

The EU’s negotiating ploy in linking the medical deal to the grace period is to portray itself as reasonable in the face of British intransigence. Although there is a willing audience for this message, far more important lessons should be drawn.

Lowering the medicines sea border, and changing its own laws to do so, means the EU has effectively conceded northern secretary Brandon Lewis’s point that the protocol is “a policy document as much as anything else”.

It is certainly not the immutable legal text the EU and its most fervent supporters proclaim.

Too much debate on the protocol conceives of it as a righteous punishment on the UK or unionism, to be 'fully' or 'rigorously' implemented

There were no surprises in the medicines sea border – its disastrous impact was apparent from the outset. The UK gave an unambiguous pledge to adjust supply chains around it within the 12-month grace period. While it is not to the British government’s credit to have signed this then given up on it, the European Commission is no better. It takes two to agree a transparently hopeless arrangement.

The EU deserves credit not for generosity but for realism. That is the spirit others, especially unionists, should reciprocate. Parts of the protocol might be magically mitigated but its general outline is not going away. There will always be compromise and negotiations will be endless – that is Brexit’s real “Swiss-style” deal.

Too much debate on the protocol conceives of it as a righteous punishment on the UK or unionism, to be “fully” or “rigorously” implemented.

Now the EU has admitted it is a work in progress, the protocol should be more widely seen for what it is: a first-draft framework for practical solutions, to be implemented as lightly and flexibly as possible.