3 things to know about the UK plan to rip-up Northern Ireland Brexit trade rules

Britain unveils a new way to pressure Brussels on the Northern Ireland Brexit protocol.

A protestor takes part in a demonstration against the visit of Britain's PM Boris Johnson to
Hillsborough, NI | Paul Faith/AFP via Getty Images

BY CRISTINA GALLARDO

May 17, 2022 6:20 pm

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LONDON — The U.K. is bracing for a fresh clash with the EU after setting out plans to rewrite post-
Brexit trade rules for Northern Ireland – with or without the bloc’s green-light.

Here are the top three things to know about the British government’s proposal, set out by Foreign
Secretary Liz Truss in the House of Commons Tuesday.
What the UK wants to change

The short answer is: a lot. But not yet.

The U.K. is vowing domestic legislation to grant ministers the power to tweak bits of the post-Brexit
Northern Ireland protocol it doesn’t like.

The move comes alongside a promise the U.K. is still committed to negotiating changes with the EU
before it actually uses the law — but Truss aired a familiar list of grievances with the set-up Tuesday.

The protocol, painstakingly-negotiated by the U.K. and EU as part of the Brexit process, is meant to
protect the bloc’s single market and preserve hard-won peace on the island of Ireland.

Negotiators agreed back then that it would be too difficult on economic and security grounds to
enforce EU trade rules on the sensitive land border between Northern Ireland, part of the U.K., and
the Republic of Ireland, an EU member. Instead, the EU’s customs and sanitary controls would be
applied on British goods as they arrived at ports in Northern Ireland, which would remain part of the
EU’s single market for goods.

Truss promises “full checks and controls” to the EU | Hannibal Hanschke-Pool/Getty Images

The arrangement has proven deeply unpopular with Northern Ireland's unionists, who fear it drives
their region away from the rest of the U.K. economy, while ministers in London have complained of
needless red tape.

With that in mind Truss’s proposed law would allow ministers unilaterally to reduce customs checks
and food-safety controls on goods moving from Great Britain to Northern Ireland that are not bound
for Ireland or the rest of the EU single market; to let Northern Ireland benefit from VAT policies
applied to the rest of the U.K.; and to allow Northern Irish firms to produce goods according to
British standards.

Although Truss’s statement was scant on fresh details, she is promising that “full checks and
controls” will be preserved on goods intended for the EU’s cherished single market. There will be
“robust” penalties for breaches of the rules, she said. The U.K. is again pitching the creation of so-
called “green” and “red” lanes — an idea first floated by the then-Brexit Minister David Frost in July
2021.

U.K. ministers will be able to “remove regulatory barriers to goods made to British standards being
sold in Northern Ireland,” Truss promised. Firms in the region would be able to choose between
meeting British or EU standards.

The U.K. government is also handing itself the power to change the governance provisions of the
protocol, amid longstanding complaints about the role of the Court of Justice of the European Union
in the set-up. Britain’s preferred solution on this front is “an arbitration mechanism” like that
contained in the EU-U.K. Trade and Cooperation Agreement, Truss said.

The foreign secretary tried to reassure the EU by offering to provide it with more real-time
commercial data on trade flows. That would be achieved through Britain’s previously-floated
“trusted trader” scheme.

The UK may not pull the trigger

It’s worth stressing that while Britain is promising to legislate, actual passage of the law could be a
long way off, and there’s no guarantee ministers will then make use of the provisions in it.

It is also likely to cause some soul-searching among Tory backbenchers. “It’s one thing using this to
get things moving. I really hope I don’t ever have to vote on it,” a Conservative MP representing a
Brexit-supporting constituency said. “I would really have to think quite carefully about what I did.
We can’t keep going back to the Brexit votes of 2019. Nobody wants that.”

The U.K. does still believe there is a landing zone for a deal with the EU on the protocol — but only if
EU leaders give European Commission Vice-President Maroš Šefčovič permission to renegotiate the
protocol’s text, something they have so far declined to do. It would take several months for EU
leaders to agree on a new mandate, EU officials have warned, and there is no sign that the bloc
intends to do so.

Yet discussions are likely to continue. The U.K. has invited Šefčovič to a meeting in London of the
Withdrawal Agreement Joint Committee, which oversees the Brexit divorce deal and the protocol, to
discuss the proposals as soon as possible.

The Commission was already hoping to resume talks on the operation of the protocol in the
summer, with a view to reaching consensus by the end of the year.

The backdrop is likely to be tense, as these conversations will now take place in parallel to the
passage of the bill, which the government plans to introduce in the Commons before the summer
parliamentary recess.

And the bloc is not exactly sounding up for a change in strategy in the wake of the U.K.’s latest
intervention. “Should the U.K. decide to move ahead with a bill disapplying constitutive elements of
the protocol as announced today by the U.K. government, the EU will need to respond with all
measures at its disposal,” Šefčovič said in a statement.

The EU is keeping its cards close to its chest on what those measures might be, but a previous
package covered tariffs, freezing data equivalence with the U.K., imposing barriers to British financial
firms wishing to operate in the EU single market, and not granting the U.K. access to the EU’s R&D
programs, among others.
The most drastic course of action would be scrapping the whole EU-U.K. post-Brexit trade deal —
but that would take months and it is an option all sides would try to avoid.

Expect legal blowback

The protocol has the force of an international treaty, so Britain is stepping into murky legal waters.

Truss insisted Tuesday that the plan would “restore the primacy” of the Good Friday peace
agreement and said the government’s assessment is that the move would comply with international
law. Unionists in Northern Ireland are currently refusing to form a power-sharing regional
government because of the protocol, and Truss cited this as she sought to justify her approach. She’s
promising details soon on the U.K.'s legal position.

But Joanna Cherry, a Scottish National Party MP and lawyer, pointed to a previous fight in which the
U.K.’s Supreme Court made clear the government must comply with the international treaties it’s
signed up to. Irish Foreign Minister Simon Coveney has already warned that “breaking international
law is not the answer to solving protocol issues.”

In response to the move, the EU could also restart so-called infringement procedures, a legal action
that can culminate in the Commission referring cases to the Court of Justice of the European Union,
which it put on hold in July 2021.

The U.K. did not say whether it plans to trigger the protocol’s safeguard mechanism, Article 16,
which was conceived for situations where any of the two signatories feel the provisions are causing
problems.