There was a time – just a year ago – when it was widely recognized that the Northern Ireland Protocol was a temporary dilemma. Sure, it caused short-term problems, but the Irish Sea border would become smoother, trade would be diverted and union opposition would dissipate.
Now that the Stormont executive has broken down on the issue, a protocol-driven election and increasing polarization, it’s clear such a view was misguided. This topic is likely to poison political discourse for years.
But something few people on either side of this debate understand is the magnitude of the Protocol’s impact. That is because of how this agreement was constructed, and that construction contains inevitable future controversy.
Even among those who have read the 63 pages of the Protocol, few would grasp its scope. Legislative language is always unwieldy, but protocol is particularly opaque.
For example, nowhere does the Protocol say that a bare-rooted tree in Yorkshire will be banned from Northern Ireland if it has some molecules of British soil on its roots.
Instead, the protocol refers to an EU law that applies in Northern Ireland. But even finding and reading this law does not imply that British soil is forbidden; it refers to “third countries” and in EU language this is now GB.
Thousands of rules are hidden in the protocol that are not easy to understand. Even the EU has wondered about some of the implications of the document, which is why it is now offering to largely override or amend some passages.
These rules are constantly changing, beyond our control.
Last week, the House of Commons European Audit Committee released a remarkable report. The cross-party committee includes some notable Brexiteers, but its staff – who do much of the detail work – are neutral officials.
One of the outcomes is an exceptional example of how the constitutional landscape of Northern Ireland has fundamentally changed. The committee’s analysis found that at least 29 EU legislative proposals could eventually apply to Northern Ireland this year alone.
That means The EU could legislate 29 times to change Northern Ireland law.
For context, consider the following: During the two years of this parliamentary mandate, MLAs have passed 18 bills that have received royal assent to become law.
The numbers at stake illustrate the sheer scale of the issue, the ever-changing nature of the law and the fact that real political power over the affairs of Northern Ireland rests to a very significant degree in Brussels.
The tribal debate over protocol was probably inevitable but unproductive. Recently, a big businessman who is pro-EU, but concerned about some of the implications of the protocol, lamented that this discussion is now seen almost exclusively in tribal terms.
But the practical consequences fall equally, even though the symbolic border with Britain is an exclusively Unionist concern.
Last week, the Road Haulage Association (RHA) told a committee in Stormont that it understands Boris Johnson’s attempt to camouflage the Irish Sea border by throwing money at traders (who would otherwise have abandoned the bureaucracy) was about 18 months will end.
That’s what the RHA said The average UK to Northern Ireland retail load now requires 18 Export Health Certificates (EHCs), issued by veterinarians at around £200 each. A business would need 90,000 EHCs at a cost of £18m a year, it said – a cost that will ultimately be borne by consumers.
Last week’s Commons Committee report broke down every aspect of the European Commission’s work program and found that most will apply to Northern Ireland.
Proposed legislation includes tightening waste restrictions for third countries (including the UK), merging two directives on motor vehicle design and disposal (only one of which currently applies in NI), extending the emissions trading scheme to maritime transport, road transport and buildings, Align minimum fuel tax rates with EU climate change policies, amend the artificial intelligence law and amend the EU Customs Code to ensure online shopping pays tariffs.
The product standards are changing for machines, consumer goods, toys, detergents and construction products. There are plans to change tax rates and structures for alcohol and tobacco and there could be “differences in VAT and duty rates between NI and UK and other administrative barriers to trade within the UK”.
Many people will find some of these changes to be extremely useful. For example, a carbon border adjustment mechanism would apply similar costs to imports of carbon-intensive goods as to those goods that are produced domestically – ending the ridiculous situation where it’s cheaper to ship some polluting products halfway around the world, so he adds on the pollution caused by their production.
But both the principle of such a policy and its details are disputed, with the Comission under pressure from both sides.
The nature of democratic debate is that what one person finds important and necessary may be senselessly limiting or have unintended consequences for another.
It would be easier and more efficient to leave these decisions to officials only after studying the evidence and consulting experts.
But that’s not democracy. If we believe in democracy as a principle and not in something that is convenient for now but can be discarded, then the freedom to vote out our rulers is precious. Nobody in Northern Ireland elects a single EU legislator; we have regulation without representation.
Northern Ireland is now a laboratory testing a new form of hybrid governance. After years of debate, no one has come up with a solution other than allowing Northern Ireland MPs – something that would make it clear that Northern Ireland has not actually left the EU.
This morass of complexity hides many of the protocol’s advantages and rewards those who can buy the expertise to find a loophole. But it also hides problems.
The lack of scrutiny of these issues is a key reason why the protocol could only survive if parts of it were not applied – particularly in supermarkets where the impact would be severe.
Throughout the Brexit process, wishful thinking has been consistently wrong. To rely on it now to wish away the magnitude and fundamental nature of this challenge would be unwise.
https://www.independent.ie/opinion/comment/clarity-on-trade-rules-has-been-lost-deep-in-the-northern-ireland-protocol-labyrinth-41466398.html Clarity about trading rules has been lost deep in the labyrinth of the Northern Ireland Protocol