In a joint statement after their video conference on Wednesday evening, British cabinet office minister Michael Gove and European Commission vice-president Maros Sevcovic described the discussion as constructive and agreed to meet in London next week.
But the meeting did not go well, with Sevcovic rejecting Gove's assertion that the commission's blunder last week in briefly triggering article 16 had fundamentally changed the political reality in a way that required a thorough reset of the Northern Ireland protocol.
Boris Johnson told the House of Commons on Wednesday he was willing to trigger article 16, which can suspend the application of the protocol in certain circumstances, if the EU did not make the changes Gove set out in his letter.
The British side believes that, unlike the Irish Government and all the parties in Northern Ireland, the commission has not grasped the extent of the damage caused by last Friday's fiasco. British ministers and officials were already trying to manage political opposition to the protocol from the DUP and within the Conservative party, where the European Research Group (ERG) has made the issue a priority.
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They had persuaded Arlene Foster to focus on solving problems with the protocol's implementation rather than campaigning to abolish it. But an opinion poll showing the DUP losing ground to Jim Allister's Traditional Unionist Voice (TUV) combined with the commission's blunder to push Foster into calling for the protocol to be scrapped and announcing a boycott of North-South meetings about its implementation.
British sausages
Many of the problems associated with the protocol are caused by a failure by businesses in Britain and Northern Ireland to master new procedures. Others are the result of over-zealous or simply incorrect application of the rules by officials or private operators such as shipping companies. But others again are the result of the correct application of the EU’s customs code or rules governing which plant and animal products can be imported from Great Britain.
The prime minister is said to be unusually exercised by the prospect of restrictions on British sausages entering Northern Ireland from the end of June. Others complain that it makes no sense for small, discrete movements of food or plant products for personal use to be treated the same way as large supermarket consignments.
Gove's letter calls for current grace periods to be extended until January 2023, a date chosen to avoid a cliff edge too close to the next Northern Ireland Assembly elections due in May 2022. But the British are also looking for permanent solutions on issues like pet transport, possibly within the framework of the Common Travel Area.
Britain has support from Dublin and the Northern Ireland parties in seeking more flexibility from the commission but Johnson and Gove risk blowing this informal alliance apart with their threats to trigger article 16. Invoking article 16 would not solve any of the protocol's problems and would create a fresh set of headaches for Johnson at a time when Britain's successful vaccine rollout has left him with the political wind at his back.
The article offers limited scope for unilateral action, which must be time-limited and proportionate to the problem it aims to address and must follow an attempt to resolve the issue in the joint committee. But the threat to trigger it encourages non-compliance with the protocol by raising hopes that it will be suspended and emboldens hardliners in the DUP and the Conservative party.
Pets and plants
Johnson’s threat to trigger article 16 is an empty one but his government is considering an alternative that could be even more damaging – legislating to unilaterally override parts of the protocol. This could see Westminster drawing up its own list of goods deemed at risk of moving from Northern Ireland into the EU and exempting all others from checks and other procedures. MPs could also legislate to allow the free movement of pets or garden plants between Great Britain and Northern Ireland.
Such action would set off a legal dispute with the EU and would revive memories in Dublin, Brussels and Washington of Johnson's threat last year to break international law by overriding the protocol. Downing Street regards Joe Biden's secretary of state Anthony Blinken and national security adviser Jake Sullivan as naive Anglophiles who venerate the special relationship but both have a deep knowledge of the peace process and they have been briefed about the latest developments over the protocol.
Irish America's sentinels in Congress, led by Ways and Means committee chair Richard Neal and including Pennsylvania congressman Brendan Boyle, are also keeping a close eye on events in Belfast, London and Brussels.
As he shakes off the influence of Dominic Cummings and his new team's more conventional approach to governing begins to bear political fruit, Johnson has no incentive to reprise the role of international pariah by triggering article 16 or legislating to override the protocol.
He has no other option but to turn down the volume, rein in the rhetoric and send Gove back into the joint committee next week with a mandate to engage in the dull, painstaking work of finding workable compromises to fix the problems of the protocol he himself negotiated.