Q&A: What is happening on the Northern Ireland protocol?

What are the latest developments with the protocol?

British prime minister Rishi Sunak and European Commission president Ursula von der Leyen will meet in Berkshire later where they are expected to sign off on a new agreement around the Northern Ireland protocol following months of negotiations between the EU and the UK.

There were strong signals from London over the weekend that a deal was close with Sunak saying he was “giving it everything” to secure a deal and wants “to get the job done,” while Taoiseach Leo Varadkar said that the deal was “inching towards a conclusion.”

Remind me again, what is the protocol?

It is the part of the Brexit divorce deal between the EU and UK that covers trading rules in Northern Ireland that prevent custom checks and a hard border on the island of Ireland.

How does it work?

To avoid a politically divisive trade border re-emerging between Northern Ireland and the Republic, customs and regulatory documentary checks and inspections have, since 2021, been carried out between Britain and Northern Ireland at ports in Northern Ireland as EU rules on product standards and food health and sanitation continued to be followed in the North after Britain’s exit from the EU. Strict EU rules requires border checks on food such as milk and eggs.

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Who is opposed to the protocol?

Unionists don’t like it because they believe that by putting an effective trade border between Northern Ireland and Britain on the Irish Sea undermines Northern Ireland’s position in the United Kingdom. The Democratic Unionist Party, the largest unionist party in Northern Ireland, has refused to form a new powersharing Government in Northern Ireland unless there are significant changes to the protocol. Northern Ireland’s Assembly requires the involvement of both unionists and nationalists and the DUP has refused to participate in the devolved Government for 12 months over its concerns about the protocol.

Where does the situation stand now?

Negotiations between EU and UK officials to find a resolution to the dispute have been going on behind closed doors for some time and a deal could be announced today. Sunak and von der Leyen will meet in the afternoon for what is described as “final talks” and, if all goes according to plan, there will be a press conference before Sunak makes a statement to the House of Commons.

How might a compromise on the checks be found?

The main area of progress has been on the proposed creation of “green lanes” and “red lanes” for goods moving into Northern Ireland from the rest of UK. The EU has chosen different language in public statements around the negotiations, describing these as “express lanes.” The bulk of goods moving west from Britain across the Irish Sea into Northern Ireland are food products destined for supermarkets, smaller shops, hospitals and other public places.

It is proposed that these goods intended only for sale and consumption in Northern Ireland would move through “green lanes” with no customs declarations and inspections required. Other goods travelling on to the Republic and the rest of the EU would still be subject to checks through “red lanes.”

How has this compromise been reached?

Rishi Sunak being appointed UK prime minister in October has helped smooth a path to finding a solution. In December, the extension of a grace period until 2025 to ensure the continued availability of veterinary medicines in Northern Ireland was seen as a goodwill gesture to help negotiations around the wider protocol. A significant breakthrough came last month when the EU and the UK agreed to share real-time information on goods going from Britain to Northern Ireland. On a practical level, this would allow the EU see what was coming into Northern Ireland to target smuggling and allow the operation of trusted trader schemes and the “green lanes.”

On the political side, the UK Government earlier this month agreed to delay the requirement to form a powersharing executive at Stormont and a new assembly election for a year taking some of the political heat out of the negotiations on the protocol to allow a compromise to be agreed.

Where have challenges arisen?

Negotiations have proven trickier on seeking solutions for wholesale businesses who supply retailers and the hospitality sector and component goods imported into Northern Ireland that might end up in finished products destined to be sold in the EU single market.

What other changes are being sought?

Under the protocol, Northern Ireland businesses remain tied to EU rules on state aid and VAT. The UK Government is seeking changes to the protocol to allow these companies receive financial supports and tax incentives from the British Government without breaching EU rules.

London has also been looking for a “democratic check” for Northern Ireland’s politicians on any future trade rules that would affect Northern Ireland under the protocol.

A major obstacle to any agreement will be the jurisdiction of the European Court of Justice as the final arbitrator of disputes that arise under the protocol given the application of EU single market rules in Northern Ireland. The DUP, which opposes the EU court’s oversight role over the protocol, will be closely watching what happens here.

One solution could involve new layers of arbitration and the possible creation of an independent body with legal representatives from the EU and the UK to adjudicate on disputes as a court of first instance with disputes only going to the ECJ as the final arbiter or a court of final settlement in extreme circumstances.

What is the likelihood of all parties agreeing to a deal?

Much depends on the reaction of the DUP in Northern Ireland. They have objected to EU rules and the decisions of European judges being imposed on Northern Ireland and the oversight of the ECJ, which they claim undermines Northern Ireland’s UK sovereignty. Removing ECJ from rules governing the EU single market is seen as a red line issue by Brussels that cannot be crossed.

Will the deal be put to a vote of British MPs in the Commons?

Although Downing Street has not confirmed whether MPs will be given a vote on the protocol, British deputy prime minister Dominic Raab said that the parliament “will have its ability to express itself.” The Conservatives and Labour Party have told their MPs that they are required to attend the House of Commons today.

What should we be watching?

All eyes will be on the DUP in Northern Ireland and the European Research Group, the hardline pro-Brexit faction within the Conservative Party, on their response to the details of the deal when it is announced. The DUP will be looking to see whether any compromise agreement meets the DUP’s “Seven Tests”, a high bar setting out the changes it wants to the protocol.

Another key player to watch is former British prime minister Boris Johnson who has already signalled he may not support a deal on the protocol in an attempt to undermine Sunak. This is seen as being driven by Johnson’s personal political ambitions rather than his concern for the protocol.