Anthony Speaight QC is Chairman of Research for the Society of Conservative Lawyers.
To some UK eyes, what was so unattractive about the Northern Ireland Protocol, as originally agreed, was that it could appear to envisage that, whatever the future trading relationship between the EU and Britain, the permanent future of Northern Ireland was in both a single market and customs union with the EU.
The status of the UK was dealt with separately from that of Northern Ireland in Articles 6(1) and 6(2) respectively. Article 1(3) stated that the arrangements of the Protocol were “necessary”, rather than merely desirable, and that such necessity related not only to the avoidance of a hard border, but also inter alia to the conditions for North-South cooperation and the protection of the Belfast Agreement “in all its dimensions”.
Bearing in mind that the EU had not been a party to the Belfast Agreement, and that that Agreement contains no prohibition of customs posts or the like at the border, this created the impression in some that the UK was now agreeing to the EU undertaking a new role almost as guarantor of Ireland’s interests. It was such features, as much as the absence of a unilateral right of withdrawal or end date, which contributed to the concern that the EU or Ireland or both had no real interest in seeking technological or other solutions to avoid a hard border, and that the UK was acquiescing in the consequence of Northern Ireland being permanently in a seamless trading relationship with Ireland.
The joint drafts issued on 11 March went a long way to remove those concerns by six features:-
- The recital to the Joint Instrument identifies only the absence of a hard border as the required characteristic of the arrangements which would replace the backstop. This weakens the impact of the vague aims of Article 1(3), and, therefore, the scope for the EU or Ireland at a future date to assert that the Protocol is about anything wider than the avoidance of a hard border.
- Paragraph 5 of the Joint Instrument strengthens the impression of temporariness of the Protocol by introducing a new date, namely a year from the date of UK’s withdrawal, for the conclusion of negotiations of a replacement. If the Withdrawal Agreement is now ratified, that will be considerably earlier than the date mentioned in the Protocol, namely 31 December 2020.
- Not only is the target date for the conclusions of replacement negotiations thus advanced, but it ceases to coincide with the end date of the implementation period. This emphasises that the agreement of the replacement need not be contingent on the agreement of the future trading relationship. That is significant, and must seriously diminish the scope for the EU or Ireland to claim at a future date that the Protocol envisaged Northern Ireland permanently remaining in a single market and customs union with the EU.
- The Joint Instrument makes specific mention of study of technological measures for avoiding a hard border. Paragraph 7 commits the parties to the study of inter alia technologies. This is the approach which the UK has been advocating all along. The EU’s response to date has created the concern that it would never look seriously at technologies. There had been no mention of border technologies in the original Withdrawal Agreement or Protocol and it will now be impossible for the EU to escape from detailed study of such.
- A further feature of reassurance to the UK is that such study of technologies is stated in paragraph 6 of the Joint Political Statement to cover not only existing but also “emerging” technologies meaning the EU will no longer be able to bat back this topic with the refrain that no adequate technology is yet in use anywhere in the world.
- The Joint Instrument in paragraph 10 explicitly recognises that a replacement arrangement will not be “required to replicate its provisions in any respect”. That must finally knock on the head the scope for the EU or Ireland in future to claim that the Protocol always envisaged Northern Ireland permanently remaining in a single market and customs union with the EU.
Therefore, whilst it remains the case that the Protocol could conceivably remain in force indefinitely, that scenario has become more theoretical than it was previously. In practice, that scenario will arise only if intensive work with a genuine focus on the possibilities of every kind of technology, including those which are not yet in force anywhere in the world, fails to demonstrate a way to avoid a hard border.
Although the EU may be regarded as adept at finding legal technicalities of assistance to its political objectives, it remains a mature and responsible player in the realm of international agreements. The EU would be unlikely to countenance the reputational damage of being seen to resile from its commitments in the six features identified above.