Deal fever: What to look out for…. There has been feverish speculation all week that a team in Number 10 led by Sir Tim Barrow are close to agreeing a ‘deal’ with the EU on the Northern Ireland Protocol (NIP). We have been around this block more than enough times to know what to look out for:
Who is responsible for the deal?
While nominally the Foreign Secretary is in charge of these talks, with the Northern Ireland Office Ministers giving support, it is fairly clear that he is not in day to day control of these talks. It appears that a very small team of officials in Number 10, led by Sir Tim Barrow, all with experience of previous negotiations, Chequers, the TCA etc, are in actual control reporting directly to the Prime Minister.
Will there be a deal?
The short answer is we don’t know. Number 10 deny there is a deal, but admit there are intensive talks, a step up apparently from the ‘scoping exercise’ carried out previously.
While it may be true that there is no final deal, the consistent leaks of the contents as well as discussions with some of the companies affected seems to point to the existence of text or at least a framework. This could suddenly firm up into a deal (in the margins of the Munich security conference for instance?), or perhaps more importantly possibly fail a political test and never see the light of day.
Who will sell the deal?
As the Prime Minister has been in charge of the talks it may be logical to assume that he sells the deal to Parliament. On a political level it is reported that former Spad Oliver Lewis has been brought in to ‘sell’ the deal to Tory backbenchers (particularly those on the right of the party).
Will the NIP Bill be dropped?
The Government’s fall back plan to deal with the NIP is a piece of legislation giving Ministers the power to disapply it. This has passed the Commons and is now awaiting its 3rd reading in the Lords. This may require the use of the Parliament Act, something itself that requires a new state opening of Parliament.
The EU may insist that the Bill is dropped in return for whatever may be in this deal.
So what might be in this deal:
How green will the green lane be?
One suggestion is to let all goods going from GB to NI go through a ‘green lane’. Quite how green it might be is a matter for speculation. Will it be zero compliance and checks, all the compliance cost with fewer checks or something in between. A red and green, red and brown or even a red and red lane scheme? Expect the EU to talk about reducing checks and those effected saying that is a red herring as compliance is the real issue.
A trusted trader scheme?
Another possible suggestion is a Trusted Trader scheme where traders receive less regulatory control. Similar questions arise – who can sign up? Will everyone be automatically trusted or just a few big companies? What could a Trusted Trader do? Will it avoid all compliance and checks or just some?
Will the ‘grace periods’ be abandoned?
As a part of a previous ‘negotiation’ the UK refused to implement regulatory compliance on food products going from GB to NI – the so called temporary/permanent ‘grace periods’. The EU objected to this but has currently halted its legal actions. If there is a ‘deal’ it is possible the EU may insist on removing these exemptions and look for full compliance (as they did in October 2021) – this may have the bizarre effect on actually hardening the Irish Sea Border rather than loosening it!
Will EU law still apply in Northern Ireland
A touchstone issue for the Unionist community is whether EU law will continue to apply in Northern Ireland. At the moment Northern Ireland has to apply EU law as it develops (dynamic alignment), locking them out of UK wide regulation and foreign imposing laws and a foreign Court (the European Court of Justice – the ECJ) that is accountable to foreign states. This is a democratic and cultural issue that, as with the Irish Sea Border itself, cuts across the Act of Union 1801.
Dual Regulation
One proposed solution to the problem of EU law was ‘dual regulation’ within Northern Ireland to allow companies to chose which law to follow – but it remains unclear how this could work or what it would apply to.
Will it require a Parliamentary vote?
This depends on what has been agreed. If not much is agreed, then there may be no need for the votes a full Treaty (under CRAG) would attract. Some could be done by Statutory Instrument, that can but often don’t attract votes. And the NIP Bill may be dropped meaning no votes on that to.
Will it meet the DUP’s 7 tests?
The DUP has a long-standing list of seven tests against which to judge any NIP deal. They have made it plain that they (not No10) and they alone will judge their own tests, but it seems unlikely, from the snippets briefed into the media, that the proposed deal could meet some let alone all of them. Questions of democracy, the Irish Sea border and EU law all come into play. We will have to see.
The ERG Star Chamber
As has happened on previous occasions Tory backbenchers have asked for their own legal advice from Sir Bill Cash MP’s ‘star chamber, including Martin Howe K.C. and others. This would not report immediately.
Will it lead to a resumption of power sharing?
If the deal meets the DUP’s seven tests, they have said they will return to the Assembly and resume power sharing. If they are not they won’t.
Will it change the Northern Ireland consent mechanism contained in the NIP?
Under the NIP, there is a requirement for a future majoritarian vote in the assembly on parts of the NIP to allow them to continue to be in force. The problem is that in the future, it covers only part of the NIP, if voted down it does not automatically lead to the end of even parts of the NIP and in any case is a majoritarian vote whereas the ‘Good Friday Agreement’ (GFA) and the 1998 Act that reflects it is based on bi-communal consent. Its possible the UK may request this is changed to a GFA compliant vote?
A humble suggestion:
The above paints a rather underwhelming picture of this putative deal, and there is nothing to show that this will indeed not be an underwhelming deal. The talks have been controlled at official level by many of the same characters who created the problem in the first place and without top level political input it is unsurprising they seem to have achieved very little, or at least not enough to solve the underlying constitutional and political problem.
Therefore, a new approach is required.
Given where we are I would suggest the Prime Minister comes out of the current set of talks and says the following:
The restoration of power-sharing in Northern Ireland and the GFA is and has always been our joint EU/UK aim. This is written into the NIP itself.
It is right that we sought a negotiated solution – the NIP was always envisaged as being temporary (art 13 (8)), until alternatives could be developed, there are now alternatives. This is why I tasked Sir Tim Barrow and the FCDO to see what they could jointly agree with the EU a set of alternatives to the current arrangements that are not working.
They have now reached a conclusion of that work and done the best they can do. We will now publish it and consult on these proposals.
We hope these can progress matters. It will be for the parties in NI to judge it, we want to see power-sharing up and running.
However, we in the UK are responsible for the GFA in NI, if this ‘deal’ sadly does not lead to a return to political stability and power-sharing we will have to revisit the NIP a fresh.
I would in that circumstance seek urgent talks with EU leaders in order to restart talks at a higher political level, involving a new mandate from the EU to discuss real replacements to the NIP. If that were impossible, we would however need be acted ourselves, which is why we will continue to progress the NIP Bill in the Lords.
In this way, the Government can keep its options open in case the ‘deal’ does not restore the political situation in Northern Ireland.
There is no harm in negotiating, but at the end of the day, the UK is responsible for Northern Ireland as a part of the UK and will have to act even if the EU does not wish to.