How the US impacts Brexit’s Northern Ireland protocol

In late November, the U.S. Commerce Department informed the U.K. government that bilateral talks on lifting Trump-era tariffs on steel and aluminum could not move ahead. The reason was that the British government’s continued threats to breach the Northern Ireland Protocol would hurt the citizens of Northern Ireland.   

Meanwhile, the U.S. government lifted the 25 percent tariff on steel and 10 percent tariff on aluminum to European Union manufacturers. The disparate treatment signaled the consequential U.S. treatment of BREXIT. It was a slap in U.K. Prime Minister Boris Johnson’s face. 

After the conclusion of a withdrawal agreement with Brussels, including a protocol on relations with Northern Ireland, Johnson stepped onto the world stage to demonstrate that Britain was a global player. He hosted the G7 in Cornwall and COP26 in Glasgow, gathering world leaders to U.K. shores with the pomp associated with royal parades. While world leaders were deep in critical negotiations, the ongoing dispute with Brussels over the protocol was pushed aside. Now that the global matinees are over, it is time to prepare for the evening performance: worsening row with France and resurgence of threats to revoke the protocol through the use of its article 16. 

Article 16 of the Northern Ireland protocol allows for Westminster or Brussels to take unilateral “safeguard” measures if either party concludes that the protocol is leading to serious “economic, societal or environmental difficulties” or “a diversion of trade” that are likely to persist. Neither the word “serious” nor the meaning of “diversion of trade” are defined. 

In July, Lord David Frost, the U.K. negotiator stated that the threshold for applying article 16 had been reached. But the government chose not to use the safeguard, allowing more time to negotiate with Brussels. Maroš Šefčovič, the E.U. lead negotiator made concessions, allowing food and pharmaceutical products to cross the Irish Sea without tariff controls so long as those goods remained in Northern Ireland. However, goods whose final destination was the Republic of Ireland, and thus the E.U., were subject to regulatory control. The negotiators appeared to be focused on what goods would move onto the E.U. and which would be consumed in Northern Ireland. Sense prevailed. 

Then, Johnson raised a new hurdle, namely the jurisdiction of the European Court of Justice over the people of Northern Ireland. According to the prime minister, the jurisdiction of that court in Northern Ireland would infringe upon U.K. sovereignty and is unacceptable. Brussels argued that the court ensured protection for the human rights of Northern Irish people. How could those rights protect the people of the Republic of Ireland, but not apply to the people in Northern Ireland? The impasse was glaring. Pragmatic solutions could be found for cold meats, but a Solomonic division was impossible over the jurisdiction of the European Court of Justice. 

Thus, on Nov. 17, Frost indicated that he was prepared to apply the safeguard measures in article 16. Brussels objected, as did Taoiseach Micheál Martin, leader of the Irish Republic. Confronting this challenge, powerful persons in Congress stood up. President Biden and House Speaker Nancy Pelosi have repeated their support for peace on the island of Ireland. That peace, signed in April 1998, ensures the free movement of people and goods across the land border between the two countries. It also ensures that the rights of the Northern Irish are equal to the rights of those in the Republic. Thus the quandary over the European Court of Justice. 

Westminster could pass legislation ensuring the protections, currently given by the European Court, to the people of Northern Ireland. But so far there is little indication that the prime minister will submit that bill to parliament. On the contrary, Johnson appears to relish battle with Brussels, France and whomever else creates a problem that stirs instinctive nationalist sentiment.   

Now he confronts the Biden administration; a fight he surely does not relish as he pursues the dream of Global Britain. The impasse is complex and ensures that Johnson will not wield article 16 until the curtain rises on a harmonious performance with Washington. 

Diana Villiers Negroponte is a global fellow, focused on the U.K.’s global role following its departure from the EU. She is the author of “Master Negotiator: the Role of James A.Baker, III at the End of the Cold War.”