Northern Ireland Protocol


The Protocol on Ireland/Northern Ireland, commonly abbreviated to the Northern Ireland Protocol, is a protocol to the Brexit Withdrawal Agreement that covers the special situation in Northern Ireland.[1] Its terms were negotiated in 2019 and concluded in December 2020.

Thornton Manor in Merseyside, where secretive breakthrough talks between Boris Johnson and Leo Varadkar took place in October 2019

Historical context


The British and Irish Governments:

(...)
(...)
Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union;
(...)
Reaffirming their commitment to the principles of partnership, equality and mutual respect and to the protection of civil, political, social, economic and cultural rights in their respective jurisdictions;
Have agreed as follows:

British-Irish Agreement (appended to the Good Friday Agreement)[2]

In 1921, the western and southern four-fifths of the island of Ireland seceded from the United Kingdom of Great Britain and Ireland as the Irish Free State (renamed in 1937 as 'Ireland' (Irish: Éire) and 'described' in 1948 as the Republic of Ireland). The north-eastern fifth, renamed Northern Ireland, remained by design part of the United Kingdom and the UK became the United Kingdom of Great Britain and Northern Ireland. The 'province' (as Northern Ireland is often known) had suffered sectarian tensions and at times outbreaks of serious violence between Unionists (who wish to remain part of the UK) that trace their origin to the Plantation of Ulster and Nationalists (who seek a united Ireland). The most recent of these, known as 'the Troubles', occurred during the period from the late 1960s to the late 1990s. One of its features was that the Republic of Ireland–United Kingdom border was heavily fortified and militarised. In 1998, the Good Friday or Belfast Agreement brought the conflict to an end and the border was demilitarised. Since both states were members of the European Union at the time and operate a Common Travel Area, there was no other border infrastructure.

Following the Brexit referendum, the first May government decided that not only should the United Kingdom leave the European Union but also that it should leave the European Union Customs Union and the European Single Market. This meant that a customs and regulatory border would arise between the UK and the EU. Whilst the sea border between Great Britain and continental Europe was expected to present manageable challenges, the UK/EU border in Ireland was recognised as having rather more intractable issues. These were summarised in what became known as the Brexit Trilemma, because of three competing objectives: no hard border on the island; no customs border in the Irish Sea; and no British participation in the European Single Market and the European Union Customs Union. It is not possible to have all three.[3]

Negotiation


Irish backstop

No technology solution to address these issues has been designed yet or implemented anywhere in the world, let alone in such a unique and highly sensitive context as the Northern Ireland border.

Theresa May, 20 July 2018[4]

The Protocol replaced the Irish backstop, the rejected first attempt to resolve the trilemma. The 'backstop' (also formally called the Northern Ireland Protocol) was an appendix to a draft Brexit withdrawal agreement developed by the May government and the European Commission in December 2017 and finalised in November 2018. This proposal provided for the UK as a whole to have a common customs territory with the EU until a solution was delivered that would avoid the need for evident customs controls at the UK/EU border in Ireland and also avoid any customs controls within the UK (between Northern Ireland and Great Britain). The 'backstop' element was that the arrangement would have continued to apply potentially indefinitely unless the UK and the EU were jointly to agree on a different arrangement for the border in Ireland.

The backstop would have required keeping Northern Ireland in some aspects of the Single Market.

The Irish government and Northern Irish nationalists (favouring a united Ireland) supported the backstop proposal, whereas Unionists (favouring the existing United Kingdom) were strongly opposed.[citation needed][clarification needed] By early 2019, the Westminster Parliament had voted three times against ratifying this version of Withdrawal Agreement and thus also rejected the backstop.

Attempted changes

After becoming Prime Minister on 24 July 2019, Boris Johnson sought to remove the backstop; this was refused by the EU, who wanted a legally operational solution.[5] On 2 October, Johnson presented a potential replacement for the 2018 Irish backstop, proposing that Northern Ireland stay aligned with the EU on product standards but remain in the UK customs territory. This would necessitate product checks between Great Britain and Northern Ireland, but no customs checks for goods expected to stay within the UK. For the border between Northern Ireland and the Republic, his proposal would entail customs checks between Northern Ireland and the Republic (potentially assisted by unspecified technology implemented distantly from the border) but no product and safety standard checks within the island of Ireland.[6] This was rejected by the EU.[7]

New deal agreed

On 10 October, Johnson and the Irish Taoiseach (Prime Minister) Leo Varadkar held "very positive and very promising" talks that led to a resumption in negotiations,[8][9] and a week later, on 17 October, Johnson and Jean-Claude Juncker announced that they had reached agreement (subject to ratification) on a new Withdrawal Agreement which replaced the backstop with a new protocol on Northern Ireland/Republic of Ireland.[10]

In the formally negotiated Withdrawal Agreement, the 'Irish backstop' was removed, and replaced by this new protocol. The whole of the UK would leave the EU Customs Union as a single customs territory with Northern Ireland included in any future British trade agreements, but that Northern Ireland would adopt EU Single Market regulations on goods and thus remain an entry point into the EU Customs Union.[11] Doing so would prevent a 'hard border' on the island of Ireland. The protocol also provides the option for the Northern Ireland Assembly to vote after four years on whether to terminate or retain the arrangement.

This new protocol has been dubbed by some as "Chequers for Northern Ireland",[12] due to its similarity with the UK-wide Chequers future relationship plan proposed by Theresa May, which had previously been rejected by the EU and denounced by Johnson.[13]

Provisions


Starting position

Rather than being a fallback position like the backstop was intended as, this new protocol will be the initial position of Northern Ireland for the first four years after the transition period ends in December 2020.[10]

Level playing field provisions

EU level playing field provisions apply to Northern Ireland. In the backstop they were going to also apply to Great Britain, but instead were moved to the non-binding Political Declaration, and eventually less stringent provisions were negotiated for Great Britain in the EU-UK Trade and Cooperation Agreement. State aid clauses have a "reach back" provision that covered subsidies given to businesses in Great Britain that could affect trade with Northern Ireland.

Customs territory

Unlike in the backstop proposal, this protocol meant that Great Britain was no longer to be in a "Customs Arrangement" (which the ERG saw as a customs union) with the European Union. Northern Ireland is also no longer legally in the EU Customs Union, but remains an entry point into it, creating the Irish Sea border, a de facto customs border down the Irish Sea.[14][15][13] The (entire) UK is no longer a member of the EU Customs Union.

Northern Ireland remains legally in the UK Customs Territory and part of any future UK trade deals. This results in a de jure customs border on the island of Ireland between Northern Ireland and the Republic of Ireland,[15][13] but a de facto customs border down the Irish Sea.

EU tariffs from third countries collected by the UK on behalf of the EU, would be levied on the goods going from Great Britain to Northern Ireland that are "at risk" of then being transported into and sold in the Republic of Ireland; if they ultimately aren't, then firms in Northern Ireland can claim rebates on goods where the UK had lower tariffs than the EU. The joint committee will decide which goods are deemed "at risk".[14][13]

Unilateral exit mechanism

The Protocol contains a unilateral exit mechanism by which Northern Ireland can leave the protocol: the Northern Ireland Assembly will vote every four years on whether to continue with these arrangements, for which a simple majority is required. If the Assembly votes against continuing with these arrangements, then there will be a two-year period for the UK and EU to agree to new arrangements, with recommendations made by a joint UK-EU committee. This was not present in the previous backstop.

These votes will occur two months before the end of each four-year period, with the first period starting at the end of December 2020 (when the transition period ended).[16] If the Assembly is suspended at the time, arrangements will be made for the MLAs to vote. If the Assembly expresses cross-community support in one of these periodic votes, then the protocol will apply for the next eight years instead of the usual four.[16] However, if the Assembly votes against continuing with these arrangements, then there will be a two-year period for the UK and EU to agree to new arrangements.[14][13]

Treatment of goods

Unlike Great Britain, Northern Ireland continues to adopt EU Single Market regulations on goods and electricity (including the EU VAT) and remains an entry point into the EU Customs Union.[11]

European Court of Justice

As the protocol provides for application of EU-law in many areas there is a role for the European Court of Justice with regards to procedures in case of non-compliance as well as the possibility and requirement for UK courts to ask for preliminary rulings on the application of EU law and related parts of the protocol.[17]

Implementation


Plans before Brexit

According to the UK's implementation plan (July 2020), a system for checks on goods crossing from Great Britain to Northern Ireland will need three types of electronic paperwork, as detailed in an eleven-page document.[18]

On 17 December 2020, the Joint Committee (led by Gove and Šefčovič) agreed a set of documents to give practical effect to the agreement.[19]

Unionist reaction

The de facto border between Great Britain and Northern Ireland bore criticism from Lord Empey, the Ulster Unionist Party’s chief negotiator during the Good Friday Agreement and former Stormont minister. He described the border on the Irish Sea as "the most significant change that has taken place since partition"[20] and that "Northern Ireland’s centre of gravity could gradually move in a Dublin/Brussels direction. This cannot be without constitutional consequences.”[21]

Anger over the protocol has contributed to rising tensions in the unionist community which led to street violence in the Sandy Row district of Belfast on 2 April 2021. Up to 300 people were involved in disorder, 15 police officers were injured and there were 8 arrests. [22]

Eight prominent unionists who negotiated the 1998 Good Friday Agreement called 7 May 2021 for the suspension of the Northern Ireland Protocol. Lord Trimble, Lord Kilclooney, Lord Maginnis, Lord Empey, Dermot Nesbitt, Cllr Billy Hutchinson, David Campbell and Gary McMichael argued that the protocol breached the guarantees of the agreement.[23]

Notwithstanding clauses

In September 2020, the British government drew up legislation[24][25] that would give ministers the power to define what state aid needs to be reported to the EU and what products that are at risk of being brought into Ireland from Northern Ireland.[26] which it defended as clarifying ambiguity in the protocol.[27] Before publication Ursula von der Leyen said that this could break international law[28] and in answer to a question in the House of Commons the Secretary of State for Northern Ireland Brandon Lewis said that the government's planned Internal Market Bill would "break international law" in a "specific and limited way",[29] by introducing new powers to circumvent certain treaty obligations to the EU as set out in the withdrawal agreement.[30]

These clauses were criticised by Sinn Féin [31] and Taoiseach Micheál Martin said "trust has been eroded".[32] In October, the European Commission started an infringement procedure,[33] and in December the EU-UK Joint Committee reached an agreement on practical aspects[34] which allowed the UK Government to remove the controversial clauses before the bill became law.[35]

Grace period

The agreement provided for a delay of three months (ending 31 March 2021) to allow retailers, wholesales and logistics operations time to adjust to the new arrangements for goods movements from Great Britain to Northern Ireland.

The UK government asked through the Joint Committee structures for an extension of two years on an these checks, claiming to anticipate severe difficulties with food supply in Northern Ireland. On 3 March 2021, the Secretary of State for Northern Ireland informed the UK Parliament of the Government's intention to instead unilaterally extend the grace period post-Brexit checks for a shorter six-month period.[36] Following this announcement, the EU threatened legal action claiming the action was outside the Protocol process and was the second time the UK had sought to breach international law in relation to the Northern Ireland Protocol,[36] an action backed by Simon Coveney, the Irish Minister for Foreign Affairs.[37] On 9 April 2021 Bloomberg claimed that the EU is set to postpone the threatened legal action against the United Kingdom as a result of tensions in Northern Ireland.[38]

The European Parliament, which had yet to ratify the EU–UK Trade and Cooperation Agreement, postponed making a decision pending a resolution to the proposed infringement.[39] It was announced 28 April 2021 that the agreement had been ratified.[40]

Border control posts

To operate the terms of the protocol, the United Kingdom must provide border control posts at Northern Ireland's ports:[41] actual provision of these facilities is the responsibility of Northern Ireland's Department of Agriculture, Environment and Rural Affairs (DAERA).[41] Temporary buildings were put in place for 1 January 2021, but in February 2021, the responsible Northern Ireland minister, Gordon Lyons (DUP), ordered officials to stop work on new permanent facilities and to stop recruiting staff for them.[42]

Despite an instruction by the UK Environment Secretary (George Eustice),[41] DAERA Minister Edwin Poots (DUP) (who had taken over the portfolio from Gordon Lyons) continued to resist doing so.[41] In April 2021, the permanent secretary of the DAERA told a Committee of the Northern Ireland Assembly on 15 April 2021 that the permanent border control posts were not expected to be built before 2023, subject to the agreement of the Northern Ireland Executive.[43] He added that the 'business case' would not be ready before October 2021, despite the fact that contractors had already been engaged.[41] Northern Ireland's Chief Veterinary Officer told the committee meeting that only a quarter of the checks required on goods entering the single market were being carried out at the temporary posts.[44]

Public support for the Protocol

An opinion poll commissioned by Queens University Belfast and carried out 24-28 March 2021, asked if the Protocol is on balance ‘a good thing’ for Northern Ireland. 44% of those questioned disagreed, 43% agreed and 9% had a neutral opinion. [45]

In a second poll, commissioned by BBC Spotlight and carried out 5-7 April 2021, 48% of those polled wanted the Protocol to be scrapped and 46% said it should be retained. [46]

Article 16


Article 16 of the protocol is a safeguard clause within the Northern Ireland Protocol that allows either party to take unilateral measures if applying the protocol "leads to serious economic, societal or environmental difficulties that are liable to persist".[47]

Imports from Great Britain

Northern Ireland currently gets a large proportion of its food and other imports from Great Britain and there have been complaints that strict application of the restrictions under the Northern Ireland Protocol either already have created artificial shortages in Northern Ireland[48] or that they have the potential for creating greater shortages in the future.[49]

On 13 January 2021 British Prime Minister Boris Johnson first suggested the possibility of invoking Article 16 of the Protocol when answering a question in Parliament from a DUP MP,[50] and promised to invoke Article 16 in answer to another DUP MP on 3 February to "ensure that there is no barrier down the Irish Sea".[51]

COVID-19 vaccinations from the EU

The Von der Leyen Commission is in a dispute with AstraZeneca on the contractual details of the latter's COVID-19 vaccine and whether it was providing its "best efforts" to supply the EU with its product.[52][53][54] On 29 January, the Commission published an export transparency mechanism to gain oversight of the movement of vaccines. This included reference to the possible use of Article 16 in introducing export controls, to prevent supplies of vaccine intended for the Republic of Ireland moving to Britain via Northern Ireland.[55] This move was criticised in Northern Ireland, the Republic of Ireland, and the UK, with Northern Ireland's first minister Arlene Foster calling it "an absolutely incredible act of hostility".[55] The EU reversed the decision a few hours later.[55] The Spanish foreign minister said the use of Article 16 was an "accident" and "mishap" that had been resolved.[56]

Criticism of the Northern Ireland Protocol


Graffiti in Belfast opposing the protocol (February 2021)

Kate Hoey and some other Brexit supporters[who?] have criticised the British government for erecting a trade border "down the Irish Sea"—in other words, between the islands of Ireland and Great Britain. They state that in order to prevent a 'hard border' on the island of Ireland, customs and other controls have instead been imposed on goods travelling from Great Britain to Northern Ireland; and that Northern Ireland remains for many purposes in the EU Single Market and Customs Union, subject to a regulatory regime into which it has no input.[57]

See also


References


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  2. The Good Friday Agreement  Department of Foreign Affairs, Government of Ireland
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