Why did UK and EU agree NI Protocol with clause allowing unilateral action in the event of diversion of trade (DOT) when they knew DOT was inevitable?

Question

Under the Protocol the UK government is responsible for applying checks on goods entering NI from the rest of the UK to ensure that goods destined for the Republic of Ireland meet EU regulations. This is to avoid a "hard border" between the Republic and NI - i.e. avoid any need for checks at the land border.

Article 16 of the Protocol states that "if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol."

It may be noted that "or diversion of trade" is a separate clause. It is not "serious diversion of trade which is liable to persist" but just "diversion of trade" which is a pretty low threshold.

In the months since the Protocol came into force there has clearly been diversion of trade, particularly in the case of agriculture and food, with many Northern Ireland businesses switching suppliers from those in England/Wales/Scotland to those is the Republic of Ireland. And this has happened notwithstanding that we are still in a "period of grace" before the Protocol has been fully implemented.

With the benefit of hindsight it seems obvious that at the time the Protocol was agreed both parties should have known that the diversion of trade condition in Article 16 would arise almost immediately. So why did they sign? It is one thing to make an agreement which you believe is likely to work but to include a "get out" clause just in case there are difficulties. But why sign an agreement where the conditions allowing the "get out" clause to be used are very likely to arise almost immediately?

So my question is: What could account for the agreement of terms subject to a "get out" conditional on circumstances which are seemingly inevitable.

Answer 1

We can't be sure exactly what was going through the heads of the negotiators, but we can say some things about motives.

Negotiating against a deadline is essentially a game of chicken: the side that caves in first is going to get the worst of the deal. That is why these negotiations always go to the wire.

The EU has long experience of such negotiation, and hence so does the UK because it was part of the EU until recently. One of the habits of the EU in difficult negotiations is to kick the can down the road; write an agreement which includes the bits that can be agreed, and leave the difficult bits until later. This isn't an entirely stupid thing:

• Having agreement on some things is better than nothing, and you can then go back to the difficult bits later on. Parts of the protocol are actually working reasonably well; its the food that is causing the real problems.

• If you are really lucky something might happen to make the problem irrelevant.

• The delay can let you gather information about the problem which will make agreement easier.

• The political situation might change; you could be negotiating with different people, and their calculations might have altered due to elections or changes in public opinion.

So for all these reasons it made sense for the negotiators on both sides to agree to disagree on some issues, and hence to kick the can down the road.