Context
The EU-UK relationship has hit stormy waters as disagreement over how to implement the Northern Ireland Protocol (which forms part of the Withdrawal Agreement governing the terms of the UK’s departure from the EU) has rumbled on.
The change of Prime Minister at the start of September may provide an opportunity for a reset in relations, but this will depend on the successful candidate’s approach to addressing the challenges created by the Protocol. This blog analyses the current status of the relationship and whether it might change as a result of the imminent change at the top of the UK Government.
The Northern Ireland Protocol Bill
The Northern Ireland Protocol was agreed by the EU and the UK to preserve the Good Friday Agreement and to ensure that a trade border on the island of Ireland was not needed, whilst protecting the EU’s single market for goods. However, because of the Protocol, some checks are needed on goods going from Great Britain to Northern Ireland. In effect this has led to a trade border being placed in the Irish Sea between Great Britain and Northern Ireland which has invoked anger amongst Unionist politicians. More on the detail of the Northern Ireland Protocol and the disagreement between the EU and the UK is set out in the SPICe blog “How the disagreement over the NI Protocol has affected EU-UK relations”.
With the Protocol still not fully implemented, the UK Government sought to address Unionist concerns with the introduction of the Northern Ireland Protocol Bill on 13 June 2022. The Bill would immediately disapply elements of the Protocol and allow UK Ministers to disapply further elements of the Protocol and relevant parts of the Withdrawal Agreement in domestic law. It would also provide UK Ministers with delegated powers to make “new law” in connection with the Protocol. More information on the detail of the Bill is set out in a SPICe blog.
On 19 August 2022, the Scottish Government lodged its Legislative Consent Memorandum for the Northern Ireland Protocol Bill. The Scottish Government concluded that it did not intend to lodge a legislative consent motion in relation to the Bill. The Scottish Government cited three reasons for this approach:
- The Bill’s potential illegality.
- The impact the Bill is already having on Scottish interests in terms of the breakdown efforts to resolve outstanding issues around the TCA.
- The potential future impact of trade measures, in the event of further escalation in the UK Government’s associated dispute with the EU.
The European Commission response
The European Commission responded to the introduction of the Northern Ireland Protocol Bill by indicating it would seek to ensure continued implementation of the Protocol as agreed in the Withdrawal Agreement. In addition, Commission Vice-President Maroš Šefčovič indicated the Commission would take “proportionate action” in response to the UK Government’s approach, whilst setting out that the Commission believed the Bill was a clear breach of the UK’s commitments under the Withdrawal Agreement .
On 15 June 2022, the Commission announced that the previously suspended legal action, that it had taken against the UK Government as a result of the UK’s unilateral action to extend grace periods for goods going from Great Britain to Northern Ireland, would be resumed. In addition, the Commission announced that a new case had been brought against the UK Government over the alleged failure of the UK to build and staff border control posts at Northern Ireland ports, and an alleged failure by the UK to provide real time data on the movement of goods between Great Britain and Northern Ireland. The European Commission also highlighted its own proposals to reduce the burden of the Protocol which it published last October.
On 22 July 2022, the Commission announced it was launching further legal action against the UK Government “for not complying with significant parts” of the Northern Ireland Protocol. The Commission press notice highlighted EU frustration at the UK’s continued failure to implement the Protocol and as a result announced its further legal action. The new action focused on four areas. These included the UK’s failure to comply with the applicable customs and supervision requirements on the movement of goods from Northern Ireland to Great Britain. The other areas related to a failure by the UK Government to notify the Commission that it had transposed areas of EU legislation in Northern Ireland which is required under the terms of the Protocol.
Upon launching the legal action in June and then July, the UK Government was given two months to respond providing its view. On 8 August 2022, it was reported that the UK Government had requested, and the Commission had granted, an extra month to respond to the proceedings which began in June. As a result, the UK response to both sets of proceedings is now due in mid-September.
Lack of EU-UK cooperation
The disagreement over implementation of the Northern Ireland Protocol has also led to other negative effects on the EU-UK relationship. The Trade and Cooperation Agreement (TCA) included provision for the UK to continue to participate in the Horizon Europe programme (which supports research and development programmes across Europe) and other EU programmes subject to negotiation of the terms of UK participation. However, the European Commission has refused to make a final decision about UK participation in these programmes as the dispute over the Northern Ireland Protocol has continued.
On 15 August 2022, it was reported that the UK Government is set to launch a formal dispute process against the Commission (this process is set out in the TCA) over its “blocking of access to three international science programmes”. The UK action relates to the Commission excluding it from the Copernicus earth observation project, the Horizon Europe research fund and the nuclear regulator Euratom.
In addition, an agreement on financial services (as envisaged by the TCA) has yet to be finalised.
Operation of the governance structures managing the EU-UK relationship
Both the Withdrawal Agreement and the TCA included governance arrangements to oversee their operation. These arrangements should provide avenues to address any potential breakdowns in the relationship.
The Joint Committee oversees UK and EU implementation, application and interpretation of the Withdrawal Agreement. The Withdrawal Agreement requires that the Joint Committee meets at least once a year. The Joint Committee has met on nine occasions, but not for over six months having met most recently in February 2022.
The TCA is underpinned by a Partnership Council and a number of Specialised Committees. The Partnership Council is co-chaired by a Member of the European Commission (currently Vice-President Maroš Šefčovič) and a representative of the UK Government (currently Foreign Secretary Elizabeth Truss). It is required to meet at least once a year, or more regularly at the request of either party. However, the Partnership Council has only met once, on 9 June 2021.
There are 18 Specialised Committees and four working groups that sit beneath the Partnership Council. They oversee particular elements of the Agreement. The policy areas covered by these committees include devolved competences such as fisheries, animal and plant health, the environment, law enforcement and judicial cooperation, and public procurement.
According to the UK Government’s published information, most Specialised Committees have met once and, in a few cases, more often. The Specialised Committee on Fisheries has meet four times (most recently on 20 July 2022). However, most Committees have not met in 2022.
The Partnership Council and Specialised Committees should play a key role in developing and managing the EU-UK relationship after Brexit. The fact these bodies have met comparatively rarely suggests the relationship is not functioning as smoothly as both sides would have hoped with little prospect of any discussions leading to a more integrated relationship in the short term.
Opportunity for a reset?
The change in Prime Minister as a result of Boris Johnson’s resignation might be seen as an opportunity for a reset in the EU-UK relationship.
However, both Elizabeth Truss and Rishi Sunak have pledged to continue with the Northern Ireland Protocol Bill (NIPB) which is currently a major obstacle preventing any reset from the EU’s perspective. Even if a new Prime Minister was to drop the Bill challenges would remain. Addressing Northern Ireland Unionists’ concerns about the operation of the Protocol whilst meeting the EU’s insistence that the Protocol should be implemented in full make this an almost intractable problem for the next Head of Government.
Reflecting on how the new Prime Minister might approach the UK’s relationship with the EU, the European Policy Centre suggested that:
“In the short term, any reset of the EU–UK relationship is unlikely, particularly as the seemingly intractable question of the NIP remains open.”
It added that a key role for the European Commission would be to “make clear to the new UK leader the consequences of acting on the NIPB”. In the event the Bill proceeds and is enacted, it is quite possible that EU-UK relations will get worse before they get better. Professor Anand Menon, Director of the UK in a Changing Europe has suggested that a trade war and a further damaging of the EU-UK relationship is a possibility:
“The EU has made it clear that it would view passage of the Bill as a breach of the terms of the Protocol. Should it become law, therefore, the new government would face the prospect of immediate retaliation, most probably via a further court action in addition to the two already underway. This could prompt a trade war and would worsen already strained UK-EU relations, which are hampering cooperation in areas of mutual benefit such as the Horizon research programme.”
Iain McIver, SPICe Research
(This blog was updated on 23 August 2022 to include details of the Scottish Government’s Legislative Consent Memorandum on the Northern Ireland Protocol Bill.)