On 12 February a team from the European Commission met a group of Northern Ireland business organisations at the University of Ulster campus in Belfast.
The commission wanted to hear from stakeholders how much they understood the Irish Protocol and what it required; the stakeholders wanted to know how far they could push things at the margins. Could they even get derogations from some of the checks and controls the Protocol requires?
According to one source present it was a sobering meeting. The commission insisted the Protocol was now law. There would be a Joint Committee set up which would meet in late March, but only to implement what was already negotiated, not whittle down the full scope of customs formalities on goods going from Great Britain to Northern Ireland.
The commission insisted the Protocol was not the EU's preferred course of action - this was what Boris Johnson’s government had wanted.
The stakeholders argued there had to be some flexibility. Containers filled with supermarket produce coming from Great Britain, for example, might have thousands of individual items earmarked for supermarkets such as Asda.
"The message seemed to be...that there are flexibilities within the rules, but no derogations from the rules"
Such destinations are known as "dead end hosts" - goods end up there and shouldn't be going anywhere else, certainly not across the land border, they argued.
Could there not be flexibility on the paperwork for such consignments, which might include export health certificates, entry and exit declarations, safety and security declarations?
One source spoke of a £2.99 frozen lasagna going from Great Britain to Lisburn. Compliance with customs formalities could end up costing the trader upwards of £200 worth in paperwork.
This may be something of an exaggeration, but no-one doubts the cost of compliance.
Impact Assessment
UK customs carried out their own impact assessment shortly after Boris Johnson agreed the Protocol.
Based on the traditional cost for companies importing and dealing with the rest of the world, paperwork "ranges from £15 to £56 per declaration, depending on factors such as whether a business outsources the process to a customs agent… Small and micro businesses (SMBs) may be more likely to use a customs agent and as such are more likely to face higher costs".
The meeting ended with the business delegations feeling deflated. "The message seemed to be," says one source present, "that there are flexibilities within the rules, but no derogations from the rules."
With each passing day, northern businesses are feeling more isolated.
On Tuesday at the Northern Ireland Assembly, the visiting House of Lords EU Committee took graphic evidence from the haulage, ports and airports sector.
The sectors made the point that their day-to-day activities should be about running their businesses and chasing new business.
Yet here they were, bamboozled by protocols, joint committees, the EU's customs code, unexplained concepts of "risk" when it comes to goods crossing the Irish border, unexplained concepts of "unfettered access" for goods going back and forth to the UK’s internal market.
"We are in limbo," said an exasperated Pamela Dennison, of the haulage firm WS Dennison and National Officer for the Chartered Institute of Transport & Logistics, "because we're being asked by our customers how to prepare. I can't tell them that because I don't know, the government doesn't know, trade bodies don't know.
"It will be our trucks, our trailers, it'll be financial implications on our business, it'll eat into our margins, we'll have to invest and extra resource, there will be delays due to driver restrictions, driver hours."
Les Stracey, director of corporate affairs at Stenaline, explained that the ferry company operates 140 sailings from Belfast to Cairnryan, Heysham and Birkenhead each week.
These sailings carry 40,000 freight units, 97% of which involve only Great Britain to Northern Ireland trade (and vice versa), in other words, trade not destined for south of the border.
His first concern is whether his company will have to comply with checks only on the 3% which crosses the border, or for the entire cargo.
A second concern is what impact those checks will have on the turnaround time of one hour 36 minutes.
A third, and more complex concern, surrounds the data needed to comply with the checks and controls required by the Protocol.
Some 67% of the freight on Stenaline ships is unaccompanied. Under the EU's customs rulebook, it is the ferry company which has to submit safety and security declarations for unaccompanied freight entering the EU.
"If there are 100 consignments in the back of that trailer," he told the committee, "we need to know all the details for every single consignment we have to collect in our system to be able to pass it on through the safety and security declaration.
"That is a nonsense. We are being asked to collect data which we don't have."
How rigorous will the UK have to be in implementing these checks and controls?
That question is mired in the controversy over whether the UK will actually comply with its obligations and when.
An explainer published by DExEU after the Protocol was agreed in October stated that so long as Northern Ireland participated in the EU's customs arrangements and regulatory zone there would be "processes to ensure that goods entering Northern Ireland destined for the EU pay the right duty and that all goods comply with the appropriate rules".
The paper said the procedures would be "largely electronic in nature" and checks on goods would "principally relate to regulatory alignment rather than customs compliance".
By way of explanation, the explainer said that the UK "currently checks only 4% of movements notified through customs declarations, with under 1% involving physical checks of the consignment".
Public messaging from Boris Johnson and the new Northern Ireland Secretary Brandon Lewis have added to the confusion
But a more graphic picture was painted by leaked Treasury and DExEU papers before Christmas.
A series of Treasury slides warned that high street goods in Northern Ireland were "likely to increase in price", that checks on goods across the Irish Sea were "likely to affect business profitability" and that retailers were "likely to be hit".
A DexEU report suggested that "delivery of the required infrastructure, associated systems, and staffing to implement the requirements of the [Irish] protocol by December 2020 represents a major strategic, political and operational challenge".
At a private meeting of the UK government’s cross-departmental Border Delivery Group on 10 February, Michael Gove, who is taking the lead in implementing the Withdrawal Agreement, told stakeholders that "unfettered access" for goods going from Northern Ireland to GB meant a "light touch" administrative process, while freight coming in the opposite direction would be subject to customs processes and duty payable on goods at risk of transiting to the South.
On Thursday in the House of Commons, Mr Gove said "this government are wholly committed to implementing the withdrawal agreement, to respecting and enacting the Northern Ireland protocol," yet minutes later told the DUP’s Jim Shannon that "there will be no border down the Irish Sea".
Mixed messages
Public messaging from Boris Johnson and the new Northern Ireland Secretary Brandon Lewis have added to the confusion.
On Monday 17 February, UK and EU negotiators met in Brussels to discuss the modalities of the forthcoming future relationship negotiations.
The EU team, lead by Michel Barnier's deputy Clara Martinez Alberola, asked the UK's chief negotiator David Frost what Boris Johnson and Brandon Lewis meant when they said there would be no checks on goods going between Great Britain and Northern Ireland and that there would be "no border" down the Irish Sea.
It is understood that Mr Frost repeated the mantra UK officials have been using that "we will uphold our legal obligations". The EU side was nonplussed.
Sources familiar with Number 10 thinking say that when the Protocol was negotiated in October it was done with speed, with officials keenly aware at the time that it had the potential to cause major problems down the line due to its complicated and politically hazardous requirements.
What's more, Downing Street was seeking ways to extricate itself from some of the obligations of the Protocol, and that the appointment this month of Suella Braverman, a former chair of the hardline European Research Group, as Attorney General should be seen in that light.
Listen: Brexit Republic - Gove Unprecedented, Boris Unbelievable.
A spokesperson for the Attorney General's office declined to say whether or not Ms Braverman had been asked to give fresh legal advice to the government on the Irish Protocol.
A Downing Street source also declined to comment, but did say: "The UK signed the Protocol last month and we will comply with our obligations.
The PM has been clear that beyond the limited changes introduced by the Protocol there would be no changes to GB-NI trade and we would not ask any ports to [apply] checks [or] controls between GB and Northern Ireland."
EU diplomats are approaching the UK position on the Protocol with a sharp-edged caution
This makes it clear that both sides remain at odds over what the Protocol means.
It is understood Downing Street believes the Protocol's promise of "unfettered access" offers significant discretion on keeping checks to a minimum, and that the Joint Committee is the forum where that discretion can be brought to bear.
Article 6 (2) does indeed say that both sides should use their "best endeavours" to facilitate the trade between Northern Ireland and other parts of the United Kingdom.
Furthermore, the Joint Committee will keep things "under constant review and shall adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible".
However, such a promise is predicated on the UK agreeing to apply the EU’s customs and regulatory systems.
"The UK side seem to be building their entire case around the 'best endeavours’ clause in the Withdrawal Agreement," says an EU source close to the negotiations, "which requires both sides to facilitate trade across the Irish Sea.
But they forget the last sentence which states that it should be done "in line with regulatory obligations and the relevant regulations."
'Unfettered access'
When it comes to "unfettered access" there are two references in the Protocol.
The preamble states that "nothing in this Protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom's internal market" and the same commitment is repeated in Article 6.
However, it is clear that this refers only to goods moving from Northern Ireland to Great Britain.
Furthermore, EU sources point out that the promise of unfettered access is qualified. Nothing "in this Protocol" can prevent unfettered access, the text says, but other obligations might, such as the EU's Union Customs Code, which requires an exit declaration (something Michael Gove has acknowledged).
That leaves us with a stand-off.
Michel Barnier could barely conceal his irritation at the UK’s apparent doublespeak on the Protocol after the EU adopted its negotiating mandate on Tuesday.
Calling for the UK to start preparing infrastructure, human resources and IT systems, Mr Barnier repeatedly linked its obligations to the question of trust, and the unfolding of the future relationship negotiations.
EU diplomats are approaching the UK position on the Protocol with a sharp-edged caution.
"We have to distinguish between static and sabre rattling and what happens when the negotiations start," says one diplomat.
"However, the Australians, Japanese, New Zealanders, Canadians - they’re all looking at this thing. Suella Braverman can't mess around with peremptory norms of international law. This goes to the heart of the UK's reputation as a reliable international partner."
Both Ireland and the EU have said infrastructure has to start materialising soon, and the sooner the better. The UK view is that there is no particular deadline for these things to be in place, so long as the Protocol is ready to go "by the end of the year".
Once the negotiations get under way, it is possible that the tension might be drawn out of the Protocol issue.
Michel Barnier has revived the idea of "de-dramatising" the controls the Protocol requires.
It was in September of 2018 that the whole question of de-dramatising checks and controls on the Irish Sea first came into play.
The Salzburg summit that month had ended in humiliation for Theresa May, and there was frustration among EU leaders over relentless confusion about what the UK wanted from its divorce and future relationship and how it would deal with the Irish border.
At Salzburg, Mrs May had pitched the Chequers plan and a UK-wide customs union with the EU to solve the border issue in the short term, with a view to having a high-alignment future trading relationship in the long term.
The EU had grave reservations about both. However, the EU Task Force was sensitive to the difficulties posed by the backstop as set out in the EU’s first draft of the Withdrawal Agreement in February 2018.
Theresa May had told the House of Commons "no prime minister" could ever accept a customs border on the Irish Sea.
By that September, Michel Barnier was signaling the EU could "rework" the backstop. He began talking about "de-dramatising" the checks and controls that would be required if the backstop came into effect.
It would not be a "border" as such, he said. These would be pragmatic checks needed to protect the single market and apply the EU’s customs regime.
However, now that the backstop has been replaced by a "frontstop", what de-dramatising means in 2020 may be different from what it meant in the summer of 2018
Member states were briefed on what de-dramatising the backstop meant.
"The official line is to look at each individual check in a de-dramatised way," according to one EU source at the time, "where they take place, what is really necessary behind them, looking at all the data flows, and then trying to work out what is absolutely necessary."
Ireland was encouraging this approach. However, Mr Barnier was not prepared to make a big offer upfront until it was clear the UK was more explicit in meeting its commitments on the Irish border as enshrined in the Joint Report of December 2017.
But there were clear ideas on the table. The EU would accept UK officials on their own carrying out controls on goods going across the Irish Sea on behalf of the EU.
There would be a risk based approach: Checks and controls would be calibrated on the basis of data monitoring, which would assess well-established patterns of trade flows and their destinations. If there was a sudden spike in goods entering the South then that would raise a red flag, and the controls would need to increase.
"Let’s drill down to the realities of what these movements are and see what is an appropriate level of tracking and control," said one senior Irish official at the time. "It doesn’t have to be very onerous or burdensome. It probably needs to allow for the identification of a sudden change."
However, now that the backstop has been replaced by a "frontstop", what de-dramatising means in 2020 may be different from what it meant in the summer of 2018.
Article 6 (2) of the Protocol might talk about "facilitating" GB-NI trade as much as possible but it does not spell out what "avoiding controls" means.
Both sides are also coming at this from different angles: The EU is adamant that the full range of checks must be applicable (even if not applied) since Great Britain will be treated as any third country moving goods (potentially) into the EU’s single market.
Once that principle is established, then the EU would, it is understood, be open to using existing tools, technology and, for example, checking at premises in Great Britain to lighten the burden.
However, as per the October explainer, it is clear the UK believes that not all checks need to apply and that the Joint Committee can both delimit the range of tariffs that should apply on goods, and limit the extent of the checks and controls.
The other difference between the summer of 2018 and today is that the backstop was designed to be an insurance policy, one that might only kick in at the end of a long transition period and be subsequently replaced by a high-alignment free trade agreement.
That meant the de-dramatised checks would have a long lead in period, and would be supported by other bilateral arrangements, such as an EU-UK veterinary agreement, that would have further done away with the needs for onerous checks on the Irish Sea.
And that the backstop would have been superseded by a high-alignment free trade agreement.
Boris Johnson has ruled that out, and has insisted that its replacement be accelerated into an eight months time frame. The Protocol is not contingent on anything – it will come into effect at the end of the year no matter what.
In these circumstances, the EU will view the whole "de-dramatisation" idea rather differently.
That still leaves us with a worrying stand-off.
The EU has to try and divine the UK’s intentions. Either London will get moving quickly on the required infrastructure, IT systems, personnel, or it won't.
"If things go really badly, if we don't have a free trade deal, and the UK doesn’t live up to the Protocol, things will very nasty and very messy."
If it does, the EU believes there is no mystery to what is required.
"You apply exactly what you have been applying at Dover when it comes to third country goods coming into the EU," says one EU source, "and you apply those for imports entering Northern Ireland. The UK knows exactly what it has to do. It’s disingenuous to suggest otherwise."
If the UK does not begin the preparations then there are bound to be suspicions it is stalling in order to use the Protocol as leverage in the free trade negotiations.
The issue of the border
Ensuring the Irish land border was not used as a bargaining chip in those negotiations was the very reason the Irish issue had to be signed, sealed and delivered in the Withdrawal Agreement.
The Withdrawal Agreement is done, but the Irish issue is still looking like a dangerous pawn. There have been increasingly dark prognoses, even within the EU system, about what might happen if the UK decides not to live up to what the Protocol requires.
"Barnier is becoming increasingly insistent on making the point," says one source, "not least to Dublin, that if this thing doesn’t go well there are only two options for Ireland. One is the imposition of a land border, the other is exclusion from the single market."
"You’ve got to look at the worst case scenario," says another source. "I’m still optimistic and I still think we’ll get an 11th hour deal.
"I still believe the UK is not the type of country that reneges on its international obligations. But, the people who seemed to be making that argument internally - such as [former Attorney General Geoffrey] Cox and [former NI Secretary Julian] Smith are gone. New people have been brought in with a specific mandate.
"If things go really badly, if we don’t have a free trade deal, and the UK doesn’t live up to the Protocol, things will very nasty and very messy."
Another EU source takes a different view. The EU can take legal action through the ECJ, and through the UK courts.
"In terms of non-application of the Withdrawal Agreement," says the source, "that’s just not going to be accepted. If you look at the mandate that was given to us [by member states], the very clear link between application of the Protocol and making progress in the trade negotiations, I don’t think that’s something we’re going to tolerate at all.
"It’s certainly not the case that we’ll say to Ireland, deal with it, and we’ll get on with the future relationship. Barnier is more than aware of the impact that would have on peace and stability on the island of Ireland."
We have just eight months to find out.
