On December 8th last year, the European Union and the UK reached agreement in principle to manage the Northern Ireland protocol on an "at risk" basis.
Instead of applying the full set of sea border requirements to all goods entering the North from Britain and beyond, goods would be assessed for their likelihood of leaking onward into the EU single market.
On December 17th, both sides published their agreed criteria for making this assessment. Goods would not be considered at risk if importers registered with a trusted trader scheme and declared that items were for consumption in Northern Ireland or re-export to Britain.
Food and animal feed were specifically listed as no longer automatically at risk.
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This agreement, reached two weeks before the end of the Brexit transition period, was hailed as breakthrough for realistic implementation of the protocol.
“Practical solutions” was how the EU described the measures as it formally adopted them.
Yet now it transpires there are two kinds of risk at the sea border – smuggling and food safety – and the deal only covers one.
This is generally seen as a hard-ball negotiation over how closely the UK should align with EU regulations
Re-reading the text of what was agreed last December, it is apparent that mitigation applies only to the EU’s customs code – in effect, to the risk of smuggling – and not to food safety rules.
However, almost everyone in Northern Ireland, including its retailers, was left with the impression this was a distinction without a difference. If a supermarket shipment could be trusted not to leak into the single market, there was no risk to the EU’s food safety regime. Conversely, if full EU food safety regulations had to apply at the sea border, the promised risk-based assessment of shipments was meaningless.
Repeated assurances after December from Brussels, London and Dublin of “pragmatism” and new solutions being worked out in the joint Brexit committees all supported the understandable assumption that both kinds of risk were being mitigated together.
Then the three-month grace period on food shipments drew to a close, the UK unilaterally extended it in early March and Brussels made the difference between the two types of risk very distinct indeed. EU officials have told the Irish media, apparently with a straight face, that they are still taking a risk-based approach – it is just that the only acceptable risk on food safety is zero.
Both sides have been dug in ever since. This is generally seen as a hard-ball negotiation over how closely the UK should align with EU regulations. The probable outcome must remain the one originally implied: flexibility for retailers in Northern Ireland via a trusted trader scheme.
Tensions
In the meantime, the cranking up of tensions is inexcusable. London has moved from warning it may need further grace periods to hinting it might suspend the protocol or abandon it altogether. While these threats are barely credible, in the North they are seized on by unionists and loyalists.
The British government is conspicuously not explaining the difference between the two types of risk, as that would mean admitting it had its eye wiped in December, or worse still, that it signed up to an unworkable deal with its eyes open.
Any UK citizen casually following their government’s pronouncements can be excused for thinking the EU promised a risk-based sea border then simply reneged on that promise.
Business is now deeply concerned, support for the protocol is polling at under 50 per cent and unionism is united in defiance
Yet it is no more to the EU's credit to have struck an unworkable deal, especially if the UK was bounced or tricked into it. DUP leader Edwin Poots is correct in this regard: a zero-risk sea border for food cannot be delivered, certainly in the agreed timeframe. Training new vets – hundreds would be needed – takes five years, and all the UK's veterinary colleges are hugely oversubscribed.
Constantly intoning that the British government signed up to this and must fully implement it does not make the impossible possible.
There is one relatively innocent explanation for the EU's intransigence. The protocol and December's deal were negotiated by a top level European Commission taskforce. However, the details fall under the commission's directorate-general of health and food safety, a notoriously inflexible bureaucracy.
A less charitable view is that Brussels would rather cause serious harm to Northern Ireland than take even a slightest risk with the EU’s food safety regime. Pretending it is doing this to protect the Belfast Agreement adds insult to injury and looks every bit as cynical as London advising Brussels to be mindful of loyalist unrest.
Last December, the protocol had the support of Northern Ireland’s business community and a majority of the public, and had been grudgingly accepted by the DUP.
Business is now deeply concerned, support for the protocol is polling at under 50 per cent and unionism is united in defiance. This is a disaster and there is plenty of blame to go around.
Returning to the “at risk” deal as it was understood in Northern Ireland at the time would be a good place from which to start repairing the damage.