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Customs checks in Irish Sea

  • Article 9 of the backstop states that ‘the [VAT and excise] provisions of Union law listed in Annex 6 to this Protocol concerning goods shall apply to and in the United Kingdom in respect of Northern Ireland’.

  • Annex 2 of the backstop allows certain charges and costs recovered to take place when goods travel from Great Britain to Northern Ireland.

  • The EU is making no secret of the fact that Northern Ireland will be treated differently: ‘the EU’s Customs Code will also continue to apply in Northern Ireland… Under the backstop and in order to avoid a hard border, Northern Ireland businesses can place products on the EU’s internal market without restriction. Placing goods on the internal market that come from outside of Northern Ireland requires that the processes provided for in the Union Customs Code will have to be applied’ (European Commission, November 2018, link)

  • This is despite the Prime Minister saying on 9 July: ‘First, there is what is provided for in the European Council’s guidelines from March this year. This amounts to a standard free trade agreement for Great Britain, with Northern Ireland carved off in the EU’s customs union and parts of the single market, separated through a border in the Irish sea from the UK’s own internal market. No Prime Minister of our United Kingdom could ever accept this; it would be a profound betrayal of our precious Union.’

Regulatory checks in the Irish Sea

  • Article 7 of the backstop says that ‘nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market’. This does not apply for goods moving from Great Britain to Northern Ireland.

  • Article 7 of the backstop says that there could be ‘controls at the ports and airports of Northern Ireland’

  • The UK in respect of Northern Ireland will remain aligned to a limited set of rules that are related to the EU’s Single Market and indispensable for avoiding a hard border: legislation on goods, sanitary rules for veterinary controls (“SPS rules”), rules on agricultural production/marketing, VAT and excise in respect of goods, and state aid rules

  • Article 8 of the backstop provides for goods from Northern Ireland to be indicated as ‘UK(NI)’ – a clear separation of Northern Ireland from the UK.

  • Article 10 of the backstop says that ‘the [Agriculture and environment] provisions of Union law listed in Annex 5 to this Protocol shall apply, under the conditions set out therein, to and in the United Kingdom in respect of Northern Ireland’.

  • The EU has said that that ‘in order to avoid a hard border on the island of Ireland, and to ensure that Northern Irish businesses can place products on the EU’s Single Market without restriction, it will be necessary for the UK in respect of Northern Ireland to maintain specific regulatory alignment with the EU’ (European Commission, November).

  • The EU has been clear that a regulatory barrier will be introduced for goods coming in from Great Britain: ‘There… [will be] some compliance checks with EU standards, consistent with risk, to protect consumers, economic traders and businesses in the Single Market. The EU and the UK have agreed to carry out these checks in the least intrusive way possible. The scale and frequency of the checks could be further reduced through future agreements between the EU and the UK. For industrial goods, checks are based on risk assessment, and can mostly take place in the market or at traders’ premises by the relevant authorities. Such checks will always be carried out by UK authorities. As for agricultural products, already existing checks at ports and airports will need to continue, but will be increased in scale in order to protect the EU’s Single Market, its consumers and animal health’ (European Commission, November 2018, link).

  • This is despite May saying on 9 October 2017:

Paul Girvan (South Antrim) (DUP): “I want to give comfort to the people in Northern Ireland on this matter of not having a soft or hard border down the middle of the Irish sea. I want that assurance because the people of Ulster feel that they are being set on the sidelines.

Prime Minister: “I am very happy to give that assurance. We do not want to see a border down the Irish sea either. We want to maintain the integrity of the internal market of the United Kingdom.”

The whole UK will stay in a customs union

  • Article 6 of the Backstop says that: ‘a single customs territory between the Union and the United Kingdom shall be established (“the single customs territory”). There is no possibility of the UK being able to do its own trade deals under this. This is made clear in Article 3 of Annex 2 of the Backstop:  ‘Under no circumstances may the United Kingdom: (a) apply to its customs territory a customs tariff which is lower than the Common Customs Tariff for any good or import from any third country… apply or grant in its customs territory tariff preferences to any good on the basis of rules of origin that are different from those governing the granting of such preferences to the same good by the Union in its customs territory’.

  • This looks set to become permanent. The text in the Withdrawal Agreement states that there is a ‘common objective of a close future relationship, which will establish ambitious customs arrangements that build on the single customs territory provided for in this protocol’ (p.303).

  • This is despite the Conservative Party Manifesto 2017 pledging that –

“As we leave the European Union, we will no longer be members of the single market or the customs union.”

Possibility of the extension of the transition period

  • Article 132 (p122): Provides for a one-off extension of the transition period (potentially up to 2099). This is despite the Prime Minister promising –

“An implementation period ‘of around two years’.

The backstop can only end with EU permission

  • Article 1 of the backstop says that ‘the provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement’.
  • Article 20 of the backstop: says that the backstop will only ‘cease to apply’ if ‘the Union and United Kingdom decide jointly’ that it should end. I.e. no unilateral exit clause and no sovereign right for the UK to leave

This is despite multiple promises from Cabinet Ministers that the UK would have a unilateral right to leave.

EU control of our laws / level playing field

  • Article 12 of the Backstop says that ‘the [State Aid] provisions of Union law listed in Annex 8 to this Protocol shall apply to the United Kingdom’ (p.317). The same Article also treats Northern Ireland differently. Article 12(3) makes clear that the European Commission has the power to investigate ‘a measure by the United Kingdom authorities that may constitute unlawful aid’.

  • The EU also says that states that ‘The aim of the Protocol is to ensure that EU law, in the areas stipulated in Protocol 3 to Cyprus’s Act of Accession, will continue to apply in the Sovereign Base Areas’.

  • Article 174 says that matters could be referred to the ECJ. The EU even makes this clear in a chart on their website (see below).

 

  • Article 87 says that ‘if the European Commission considers that the United Kingdom has failed to fulfil an obligation under the Treaties or under part…. of the agreement before the end of the transition period, the European Commission may, within four years after the end of the transition period, bring the matter before the Court of Justice’.

  • Again this is a clear breach of multiple promises by the Prime Minister – for example, that –

“We are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen’.

269 comments for: From an analysis of the Withdrawal Agreement text: May’s broken promises on the ECJ, the backstop, customs – and dividing the UK

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