15th June 2021
Introduction
The Northern Ireland Protocol first emerged in the October 2018 Withdrawal Agreement under Theresa May. The UK Government had already conceded the EU demand that the Irish border issue would be settled before any trade negotiations even began. It further conceded that there would be no land border on the island of Ireland and committed to protecting North-south cooperation[i]. To drive home the point that protecting north-south cooperation meant no land border the UK Government participated in the Irish Government’s ‘mapping exercise’ which identified 142 examples of cross-border co-operation including such ephemera as bird-watching groups. As senior DFA official, Rory Montgomery, suggested in his recent article in Fortnight magazine, by this stage in late 2017 the UK had been cornered in a process which led inevitably to the current Protocol agreed in October 2019[ii]. Political negotiations between Ireland and the UK are always taken more seriously by the Irish, and the Brexit negotiations on Ireland represent a thorough failure of British statecraft and a triumph for Ireland and the EU.
The Revised Protocol finally agreed by PM Boris Johnson in October 2019 contained most of the provisions of the first Protocol. The key difference was that now it was only NI that was to remain in the EU’s Customs Union and Single Market and not the UK as a whole. The Trade and Cooperation Agreement later signed in December 2020 removed most of the tariffs on trade between the UK (including NI) and the EU, but regulatory alignment remained for NI. Actually, alignment of food regulations was in the earlier version (at article 10) irrespective of what emerged for the rest of the UK.
Despite earlier statements that there would be no border between NI and GB, the 2019 Protocol made it clear that this would indeed be where the border was located. When the DUP, who held the balance of power at Westminster, forced a new paragraph (50) into the December 2018 Joint Report, the paragraph said that; “In the absence of agreed solutions the UK will ensure that no regulatory barriers develop between NI and the rest of the UK unless the NI Executive and Assembly agree that distinct arrangements are appropriate for NI”. How on earth was this undertaking completely reversed in the 2019 Protocol? The answer is that there was an agreed solution, and in this NI did remain within the EU’s regulatory orbit. Any democratic agreement by the NI Assembly was put off until 2024.
The whole sorry story of how the UK was outmanoeuvred by the EU is told by Tom McTague on the Politico website[iii]. The essence was that the UK had no bottom line and successively caved into a resolute and well-prepared EU which worked out early what it wanted. Theresa May’s weakness after the 2017 General election made the UK negotiating position even more feeble and Parliament steadily eroded the Executive’s power to make decisions. This culminated in the EU Withdrawal (no.2) Act – the Benn Act, which effectively prevented the UK Government from leaving the EU with no deal. This in turn meant that the UK had to accept whatever deal was offered by the EU, a ridiculous situation. Faced with either losing a meaningful Brexit or accepting EU terms on Northern Ireland, Boris Johnson unsurprisingly went for the latter. His decision was overwhelmingly confirmed by the huge Tory majority at the December 2019 General Election.
How Well was the Protocol understood?
Although the revised Protocol was always unpopular with NI unionists it is fair to say that the full extent of the damaging consequences was not fully understood. There was plenty in the preamble to the revised Protocol to suggest that impact on NI would be limited. The Protocol’s preamble states that there is ‘a shared aim of avoiding controls at the ports and airports of Northern Ireland to the extent possible in accordance with applicable legislation’’ and ‘of impacting as little as possible on the everyday life of communities in Northern Ireland’. It also ‘has regard to the importance of maintaining the integral place of Northern Ireland in the United Kingdom’s internal market’. Once the Protocol came into operation in January 2021 it soon became obvious that these statements meant little in practice. Although there is allowance for an Assembly vote on the protocol after four years, most unionists do not regard this as an adequate realisation of the preamble’s statement that ‘there should be a process to ensure democratic consent in Northern Ireland to the application of Union law under this Protocol’.
In addition, the customs and regulatory barriers facing trade into NI appeared at first to apply only to goods at risk of entering the EU via NI. The main trade arrangements are contained in article 5 which mentions the ‘at risk’ concept four times in its two pages. Only a careful reading reveals that this concept applies only to tariff and not to technical or SPS regulations.
Because the Protocol was written and revised prior to the Trade and Cooperation Agreement (TCA) of December 2020 and it included the possibility of tariffs on all goods traded between the UK (including NI) and the EU27. Tariffs were to be imposed on goods at risk of entering the EU via NI. In the event, the TCA introduced trade free of most tariffs and all quotas and these sections of article 5 became less important (applying only to goods not meeting EU rules of origin). However, the Protocol also stipulated that NI producers should observe EU regulations including customs rules on goods entering NI. All of this is obscure, to say the least, in the wording of article 5. Article 5(3) merely states that ‘Legislation as defined in point 2 of article 5 of Regulation EU TEU 925(2013) shall apply to and in the UK in respect of NI”. This refers to the entire EU Customs Code and in this single obscure sentence establishes the outer border of the EU at the coast of NI. Article 5(3) then adds “the provisions of union law listed in annex 2 of this Protocol shall apply to the UK in respect of NI”. Annex 2 then lists 288 EU regulations covering the whole range of goods trade, including among many others, chemicals, medicines, food and agriculture.
The important thing is that these customs rules and these product regulations are nowhere applied to goods at risk. Instead, they apply to all goods, and this does not seem to have been widely realised until the protocol came into operation in January 2021. David Frost has recently said that it was not possible to anticipate the ‘chill effects’ of these regulations, under which firms in GB decide it is no longer worthwhile supplying customers in NI. If the HMRC’s inexperienced trade lawyers understood what the regulations meant for NI it is not obvious how clearly this was transmitted to politicians. Certainly, the public and regional politicians had only a vague appreciation.
Promises were made that NI businesses would have unfettered access to the wider UK market and these promises have been honoured but UK ministers made little effort to point up the fact that the promises referred to NI businesses having unfettered access only to selling into GB markets. The ‘access’ referred to here is only to the sales of NI businesses and not to their purchases from GB. While some businesses in NI are in a good position in relation to selling goods into both EU and GB markets many face potential constraints, including customs checks, on imported goods coming into NI from GB. Businesses importing from GB, including supermarkets and garden centres have face customs checks, delays and some bans on imports. Consumers have also face similar difficulties in direct importing of goods, for instance via Amazon and on such things as the movement of pets to and from GB. In a range of cases, firms in GB have stopped supplying NI on the grounds that the new regulations and the extra administration make it unprofitable to supply this small peripheral market. Some foods will not be allowed into NI unless frozen, including sausages and chilled meats, and freezing may render their import impractical.
Grace Periods
So called ‘grace periods’ allow time for businesses involved in trade in food and medicines to adapt to these new regulations. When extended arrangements to minimise the disruption of these new arrangements were not in place earlier in this year, the UK Government unilaterally extended the grace periods. The EU has contested the UK assertion that such unilateral action is legal under the Protocol, but the EU legal case appears to rest on procedural considerations rather than principle. When it seemed likely that the UK’s next move would be to extend the grace periods further, the EU considered doing this themselves to avoid further legal action. The EU was relieved when the UK requested an extension and readily agreed. Their probable motive is to avoid introducing the full impact of the new regulations before the July marching season in Northern Ireland. The upsurge in loyalist demonstrations and rioting has clearly rattles the EU which had argued strongly that the Protocol was needed to preserve the peace in Northern Ireland.
The overall impact on NI is thus a mixed bag. Exporting businesses have something of an advantage over firms in GB in that they do not face customs administration or EU regulatory checks for selling goods into the EU. It is not yet fully obvious how large this advantage will be and direct exports into the EU from GB appear to be recovering fast after an apparent dip in January 2021. However, reports from InvestNI suggest that interest in investing in NI has been running at relatively high levels in 2021. (InvestNI appear reluctant to publicise these successes for fear of been seen as taking sides in fraught political debate). On the other hand, NI businesses face disadvantages over those in GB in having suppliers in GB which need to fill in customs declarations and obtain veterinary certificates. Some goods from GB are already unavailable to NI businesses and their customers in NI, and unavailability is likely to get worse when the grace periods are lifted and as the UK diverges in future from EU regulations and standards.
Negotiations on the Protocol
Lord Frost and his colleagues are in negotiation with the EU, led by EU Commission Vice-President Maros Sefcovic in an attempt to mitigate the difficulties which have arisen over trade, and which have caused social and political problems in Northern Ireland. Lord Frost reported in the Lords that there were around 20 outstanding difficulties and that he was aiming at ‘practical and proportionate solutions’. Later reports referred to more than 30 areas of difficulty with no response from the EU to UK papers on many of these. The EU side are demanding full implementation of the Protocol including direct access for EU officials to the online real-time databases on cross-Irish Sea trade into NI[iv]. EU demands on full implementation appear to have hardened and no further negotiation occurred at the G7 meeting in Cornwall attended by UK and key EU member state leaders.
My contacts with what is now the EU embassy in London suggested that the EU was always willing to consider ‘facilitations’ on trade into NI as long as the UK fully recognised the rules in the Protocol. Such facilitations would include easements for supermarket imports into NI. It is not clear why these facilitations have still not been fully developed five months into the operation of the Protocol but there is something of a tense stand-off between the EU and UK, and it is reasonable to assume that such facilitations will eventually be agreed[v]. These are likely to include a sensible approach to soil being brought into NI on plants and on tractor wheels (trade expert Shanker Singham said to a Lords Select Committee that existing difficulties on tractor soil may have partially caused by over-zealous UK officials). There are reports that earlier, and potentially serious, limits on steel imports into NI will now not apply. The EU also claim to be preparing a paper on medicines that will avoid the bans on new cancer drugs reaching the NHS in NI. Such bans are clearly unnecessary and the reputational damage to this egregious example of EU over-reach appear to have persuaded the EU to mitigate their regulations. If this can happen for medicines it can happen for other goods but the EU are currently unwilling to go further.
Initial shortages in NI supermarkets and garden centres caused outrage in many parts of NI especially among unionists. Even though many of these shortages appear to be temporary and are now little in evidence, the outrage has grown and is now largely a matter of principle. People have realised that the imposition of EU commercial rules is undemocratic with no means of NI influencing the relevant EU decisions. It is in other words regulation without representation. Some have awoken to the fact that the Withdrawal Act and its Protocol have repealed the 1801 Act of Union and number of politicians are taking a court case to declare this illegal. The Protocol also clearly contradicts the Good Friday Agreement which is a balanced document protected east-west relations across the Irish Sea as much as north-south relations in Ireland.
Customs declarations, veterinary certificates and checks will become significantly more problematic once the grace periods end for food and medicines. A UK ‘roadmap’, leaked to the BBC, outlined UK intentions to end the grace periods starting with meat in October[vi]. There was little in this roadmap to suggest that the UK was seeking substantial changes in the Protocol to ease the trade difficulties. There was nothing about customs-free movement of goods by supermarkets, or for medicines within the NHS or pharmacies or materials or vehicles movements by the military. The only sign of substantial change came in a single paragraph which announced a joint UK:EU Agri-Food Forum ‘to develop proposals to protect NI’s food supplies and the core purposes of the Protocol including minimal impact on the lives of people in NI. This should include pragmatic and sustainable arrangements for certification’. No timescale was specified for this Forum but the implication is that these important arrangements would be taken out of the current talks and potentially kicked into the long grass. The purpose of this roadmap for the UK is unclear but it may be tactical, to present an impression of movement which is less than sincere.
In the meantime, HMG has attempted to ease trade difficulties though its £250 million Trade Support Service (TSS) which provides advice and training to those facing customs difficulties importing into NI but more importantly aims to complete customs declarations for companies based on information supplied by these firms. It is not obvious how well the scheme is operating. (The scheme is being operated by Fujitsu – involving Shanker Singham and others who contributed to Prosperity UK’s Alternative Arrangements Report aimed at practical customs measures for a land border in Ireland). The fact that GB companies are ceasing to supply NI suggests that paperwork remains onerous for firms and that more should be done to make the TSS fit for purpose.
How far can the Protocol be changed?
The clearest aim of the Protocol from an EU point of view is to protect its Single Market through operating normal external border arrangements, albeit at Northern Ireland ports rather than at the actual land border. The latter remains a currency border and a border for excise duties involving combined anti-smuggling measures on both sides. It is also a border for a raft of regulations applying to the service sector. The Protocol is however a policy which has accumulated a raft of barnacles including erroneous claims that the Protocol protects the Good Friday Agreement and peace on the island. These latter claims must be regarded as political ploys rather than real justifications. As is well known, the GFA contains no mention of borders and little reference to the EU. It was signed while both parts of the island were in the EU and when trade borders had been abolished by the Maastrict Agreement six years earlier. There was no acknowledgement at the time that an open border was a key aspect of the GFA settlement. John Hume of the SDLP did advocate the view that evolving cohesion within the EU would provide a long-term solution to division in Ireland but this played no role in the GFA discussions. In its arguments about the GFA, Brussels and Dublin put the entire focus on Strand 2 of the GFA (north-south relations) and completely ignored Strand 3 (East-West relations). At the same time, fictitious involvement of the EU in the GFA was asserted, even though the EU had played no role in the Agreement. In the event the actual threat to peace has come from Loyalists objecting to the Irish Sea border.
Alternatives to a border in the Irish Sea
There are a range of ways in which the EU’s Single Market can be protected while avoiding physical infrastructure at the land border. Such infrastructure might be regarded as a target for dissident Republicans (despite the evident weakness of these groups). There was no danger from mainstream Republicanism as Gerry Adams several times asserted. The political success of Sinn Fein, both north and south depends entirely on a complete distancing of the party from all violence.
Alternative means of protecting the EU Single Market include:
- Alternative Technology. Prosperity UK published a major report Alternative Arrangements for the Irish Border authored by a Commission chaired by Greg Hands MP and Nicky Morgan MP[vii]. The report advocated the use of trusted trader status and checks away from the border supported by tracking technology on cross-border consignments. The report was part-written and backed by two senior European Customs officials, Lars Karlsson and Hans Maessen. The former a previous head of the World Customs Association had written the EU’s official report on customs arrangements for the Irish border. Although the EU showed some initial interest it soon changed tack to reject this approach. Remainer media in the UK and elsewhere took the line that the technology did not exist despite the participation of Fujitsu in the Commission and its assertion that they already possessed the technology. The UK Government failed to press the matter in the face of EU and Irish opposition. By the time the report was issued in August 2019 the EU had a settled strategy of locating the customs border at the Irish sea coast of Northern Ireland. In an article on Mutual Enforcement, Reynolds, Miller and Trimble argued that[viii]:
If the EU had welcomed these proposed Alternative Arrangements and worked constructively to implement them, both sides would have benefitted and any need for the Protocol would have fallen away. In theory, such proposals could be revived today, if the EU could find the will to do so. Even so, the most significant aspect of the EU’s attempt to use Article 16 of the Protocol to prevent vaccine crossing the Irish border is that it shows controls on goods trade over that border are possible without border infrastructure.
However, recent history suggests that the EU may continue to look for excuses not to allow a sensible and minor technical evolution of the application of Common Transit Convention and Border Control Post regulations in the proposals, which would eliminate the need for any border infrastructure.
- A Border in the Celtic Sea. In the absence of a land border in Ireland, illicit goods could be prevented from entering the continental EU by checks at ports in the Republic of Ireland. This would create an anomalous status for the Republic within the EU since it would be the only EU member state with trade borders between itself and the rest of the EU. The political difficulty in these arrangements would arguably be less than the difficulties caused by the revised Protocol’s imposition of an internal customs border within the UK, between NI and GB.
- Mutual Enforcement. The idea of Mutual Enforcement has been developed by the Centre for Brexit Policy and is described as follows in their report ‘Correcting the Damage Caused by the Northern Ireland Protocol’.
The policy entails each side making a reciprocal legal commitment to enforce the rules of the other with respect (only) to trade across the border. Each side maintains autonomy – but commits to the enforcement of Enforcement whatever rules the other seeks to impose in respect of goods crossing the border[ix].
In a Mutual Enforcement approach, the obligation to comply with the importing territory’s rules and pay duties owed is placed on the exporter as a matter of law of the exporting territory. This is the critical ingredient – the border position becomes redundant. Under Mutual Enforcement, the border is no longer the first opportunity to assert jurisdiction because the importing territory has successfully had help in applying its rules beyond its border.
This legal concept can apply to any rule that the importing state wishes to enforce at its border. In this way, it is of a different character to ‘Alternative Arrangements’, which is essentially a combination of legal, procedural, and technological procedures for each individual transaction.
In practice, HMRC would collect any tariffs due, for instance due to EU rules of origin. Companies would be responsible for declaring the nature and composition of the goods to be exported, and HMRC could check where necessary. Similarly, NI firms would be responsible for applying EU regulations for any exports to the EU. Since most firms are currently completely compliant this would involve little effort, but as UK and EU regulations diverged over time, compliance would become more complicated.
It would be unlawful (even a criminal offence) for a trader in Ireland to export a good to Northern Ireland (or vice versa) without complying with the latter’s rules and duties. HMRC would collect all duties for the benefit of Irish customs authorities. A Mutual Enforcement approach can be readily used for regulatory compliance as well – eg, confirming that upholstery foam meets fire standards. As a matter of the exporting territory law, the exporter would be required to check that the product complied with the importing territory rules. This could be done via the exporting territory’s national regulatory authorities or classification bodies who are required – as a matter of the exporting territory’s law – to confirm compliance with the importing territory’s rules.
The exporting territory could apply the export procedures of its territory and in addition could apply the import procedures on behalf of the importing territory. The same basic data can be used in both declaration systems. Export customs authorities would also apply the regulations and taxation of the importing territory. There would basically be only one point where checks and inspections would take place. Duties would be collected from the exporter and paid to the importing customs authorities. Authorities would have access to the customs and regulatory declaration systems of the other territory to apply uniform procedures, or work collaboratively so as to provide data in the necessary formats. Import duties collected would be paid periodically to the other territory – or set off against duties owed in the other direction.
Trusted Trader schemes could allow qualifying companies to self-certify and account for duty on a periodic basis – rather than in advance of every movement of goods across the border. Such firms would also benefit from fewer audit checks and the scheme could permit movement for temporary storage.
Similar exemption from duties for very small companies below the VAT threshold would essentially remove the compliance burden on those firms – although the attractiveness of such an exemption for fraud and smuggling would require tight eligibility criteria and the ability for either side to suspend the exemption in cases of suspected fraud and police and civil law enforcement cooperation. Alternatively, umbrella services for smaller traders could be provided by those who are trusted traders at subsidised rates and with risks pooled and insured.
It is accepted that compliance with Ireland/EU and the UK’s SPS and agrifood rules using Mutual Enforcement could present challenges and in any case the EU is allergic to the idea of third countries operating its border arrangement (but is not resistant to imposing its arrangements on third countries). The risk to the EU’s single market from north south trade in SPS goods on the island of Ireland is small, at least initially, because the UK’s SPS and agrifood regulations start from a position of alignment, and because north south trade within the island of Ireland is small and much of it managed by regular, trusted traders. However, a Mutual Enforcement approach could be adopted over time in the event of divergence, where sufficient notice should be given to allow EU legislation as well as food producers and processors to adjust. Help can also be given to them to establish any different systems of producing or identifying goods suitable for export. As part of this, an EU-UK border agreement could provide that veterinary, SPS checks, and inspections by NI authorities to the extent necessary are fully accepted as equivalent to those in the EU, and vice versa, thereby avoiding checks at the border[x].
Will the EU Agree to reformed trade arrangements?
To date the EU has insisted on relatively full implementation of the Protocol with minimal changes to facilitate trade between GB and NI. Minor concessions, for instance on the movement of guide dogs for the blind are welcome but do not come close to resolving what has now become a major political problem. Even obvious changes such as free movement of medicines within the NHS have not yet been agreed. Maros Sefcovic is reported to favour such sensible facilitations but is being blocked by both France and Commission Chair Ursula Von der Leyen who take a hard line[xi].
The UK Government is standing firm on the principle that the UK territorial integrity is paramount. Boris Johnson says he will do everything necessary to defend the UK’s territorial integrity. Both he and Lord Frost have made it fully clear that they will use Article 16 of the Protocol to suspend damaging aspects of the Protocol. In an interview with the BBCNI Spotlight Programme the PM also said he would do whatever it takes to arrive at a satisfactory solution. Astonishingly, the BBC failed to broadcast this section of the interview. Lord Frost also emphasises the potential use of article 16 and even though his aims are practical and proportionate reforms, his firmness is said to infuriate many on the EU side who have called publicly for his replacement by his more pliant predecessor Michael Gove.
It seems unlikely that the Protocol can be abandoned altogether without triggering an EU response that could include suspension of the Trade Cooperation Agreement and the tariff and quota-free trade it permits with the EU. However, Article 16 allows for the UK to suspend aspects of the Protocol to ameliorate the difficulties in operating the Protocol and it will be difficult for the EU to win court cases against this action.
It is strongly arguable that the aspirations listed above from the preamble to the Protocol have not been met. Controls at NI ports have not been avoided, the impact on the everyday life in NI has not been minimised and integral place of NI in the UK internal market has not been maintained. Nor does the implementation of the Protocol obviously honour the first two objectives listed in article 1 of the Protocol. These are:
- This Protocol is without prejudice to the provisions of the 1998 Agreement in respect of the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of a majority of its
- This Protocol respects the essential State functions and territorial integrity of the United Kingdom.
Since the NHS is an essential function of the UK state, any disruption of its operations clearly contravenes article 1(2) above.
Instead, the initial operation of the Protocol’s customs rules has provoked protests from NI businesses and rioting in the streets. Three unionist party leaders have resigned, and senior politicians are taking a court case against the Protocol arguing that the strong statements in the Protocol about protecting the Good Friday Agreement are a sham and that the democratic consent which is the bedrock of the GFA has been neither sought nor obtained in introducing the Protocol. It is true that article 18 (Democratic Assent in NI) in the Protocol allows a vote in the NI Assembly after four years on whether the Protocol should continue. However, recently retired senior DFA official, Rory Montgomery, writing in Fortnight Magazine asserts, probably correctly, that this concession is meaningless. Even if the Assembly voted down the Protocol it would continue for a further two years and there would be strong pressure from the EU to replace it with something essentially the same.
Since the EU appears close to oblivious of the damage being done, the UK has no option now but to take unilateral action. The fact that the Johnson Government signed the Protocol in 2019 is now not relevant. The Withdrawal Agreement is viewed by HMG as an unequal treaty signed under dramatically unfavourable circumstances when the Benn Act blocked normal Government functions. The EU pressed home its advantage in these unusual circumstances but should now see that it went too far. It should now come to a reasonable accommodation which meets the key requirements of both sides, namely protecting the Single Market while maintaining the territorial integrity of the UK.
The UK’s strongest card in the current negotiations is Article 16 of the Protocol. Article 16 in full states
- 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
- If a safeguard measure taken by the Union or the United Kingdom, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the United Kingdom, as the case may be, may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this
- Safeguard and rebalancing measures taken in accordance with paragraphs 1 and 2 shall be governed by the procedures set out in Annex 7 to this (Annex 7 describes the procedures for taking safeguard measures including a one month notice period).
Since the Protocol has clearly already caused societal difficulties and diversion of trade, the UK fully within its rights to adopt appropriate safeguard measures. Indeed, it has already done so in extending the grace periods for the introduction of checks on food and medicines. The EU has threatened legal action against these unilateral extensions but has weak grounds for succeeding except on procedural grounds around the one-month notice period rule (an even this is elastic under protocol annex 7(3)).
What should the UK do now?
The operation of the Protocol should cease be a legalistic and complete application of the EU’s Union Customs Code (UCC) and instead should be based on reasonable precautionary principles about illegal goods entering the EU via NI. Since at present UK regulations remain fully compliant with those in the EU there are no current dangers at all, and no customs checks are currently required to protect EU consumers. There is an issue of tariffs connected with rules of origin (tariffs are due on goods which have a high content of imports into the UK) and for this reason customs declarations via the TSS need to be continued.
The best alternative approach would be Mutual Enforcement as described above. This is better introduced bi-laterally with the EU but if, as seems likely, the EU refuse, then this approach could be imposed unilaterally by the UK. The current system of customs declarations on trade from GB to NI might be maintained so that the EU can see what is coming into NI but checks on food or anything else would be removed except for consignments destined for the Republic of Ireland via NI. Similarly, goods coming into GB via NI could be checked at outgoing ports in NI, but goods originating in NI would have no checks. HMRC could collect any necessary EU tariffs on goods bound for Ireland on behalf of Irish customs and EU regulations on NI exports to Ireland would be applied. Failure to observe these regulations could be a criminal offence. EU regulations would then be unnecessary and would cease to apply in NI except for exports to Ireland. If Ireland refused to reciprocate, goods imported into NI across the land border could be checked at their destinations in NI. Major importers could have trusted trader status. These arrangements would be close to the principle of ‘goods at risk of entering the EU from NI’ that many believed was what the Protocol implied.
Firms in GB and NI would still have new administrative burdens which were not present before Brexit. Customs declarations would be required for GB ‘exports’ to NI however the Trader Support Service (TSS) operated on behalf of HMRC is designed to minimise the administrative burden[xii]. Firms in NI would need to observe EU customs rules and product regulations in sending goods across the Irish border. Firms of course already do this for all non-EU markets, but many small firms may not have had this experience.
Conclusion
The bottom-line here is that major reform, and perhaps replacement, is needed for the current Protocol. This should avoid all checks or trade bans on goods imported into NI from GB bound for consumption in NI except for those at risk of being re-exported to the EU. Customs declarations could be continued as long as these are processed largely through the TSS, with minimal inconvenience to firms in either GB or NI. These customs declarations will provide the EU with confidence-building data on what is coming into NI without the needs for actual checks except in a small number of cases where goods are likely to enter the EU via NI. Such checks should be on an intelligence basis rather than routine.
If the EU refuse to agree to such conditions, the UK should enforce these principles unilaterally. As a stepping-stone towards this outcome, Article 16 of the Protocol should be used to prolong the current grace periods. In his recent interview with the BBCNI Spotlight programme two weeks ago, Boris Johnson said that Article 16 would be used if necessary. He added that he would take all necessary measures to ensure an outcome favourable to NI. Even though the PM’s promises have in the past been somewhat short of copper bottomed, at least in the eyes of many unionists, he now appears to be clear about the nature and depth of the problems associated with the Protocol and should be taken at his word. All unionists should support he and Lord Frost in their determination to reform the Protocol and to end up with a set of arrangements which are practical and proportionate, and which preserve the territorial integrity of the UK.
Dr Graham Gudgin was special advisor to the First Minister in Northern Ireland 1998-2002
Endnotes
[i] See Joint Report from the negotiators of the EU and UK Government Dec 8th 2018 para 49
[ii] https://fortnightmagazine.org/articles/protocol-problems-for-both-parts-of-ireland-north-and-south/
[iii] https://www.politico.eu/article/how-uk-lost-brexit-eu-negotiation/
[iv] The UK say that access has been delayed only by technical difficulties.
[v] Some easements exist for supermarkets but not full trusted trader status and no easements for smaller retailers.
[vi] https://www.bbc.co.uk/news/uk-northern-ireland-57133682
[vii] https://www.bbc.co.uk/news/uk-northern-ireland-48884436 See also https://brexitcentral.com/how-to-protect-both-the-uk-border-and-eu-single-market-in-a-post-brexit-world/. The full report is no longer available on the Internet but Graham Gudgin has a copy which can be made available on request
[viii] https://centreforbrexitpolicy.org.uk/wp-content/uploads/2021/02/Correcting-the-Damage-Caused-by-the-Northern-Ireland-Protocol-5-Feb-21.pdf
[ix] This and the following paragraphs are taken from https://centreforbrexitpolicy.org.uk/wp-content/uploads/2021/02/Correcting-the-Damage-Caused-by-the-Northern-Ireland-Protocol-5-Feb-21.pdf
[x] https://centreforbrexitpolicy.org.uk/wp-content/uploads/2021/02/Correcting-the-Damage-Caused-by-the-Northern-Ireland-Protocol-5-Feb-21.pdf
[xi] https://www.thetimes.co.uk/article/eu-leaders-turn-on-each-other-over-northern-ireland-protocol-dlfsv76zm
[xii][xii] https://www.gov.uk/guidance/trader-support-service
