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  • The Irish Protocol is an integral part of the Withdrawal Agreement and establishes a permanent UK-EU customs union

  • It removes Northern Ireland from the UK’s customs territory and places it in the EU’s customs territory

  • Northern Ireland is in the same customs territory as Great Britain in the same way that it is currently in the same customs territory as Turkey.

  • The protocol will inevitably create many checks and controls on trade between Great Britain and Northern Ireland, amounting to a ‘hard border’ on the Government’s definition – east-west, in this case.

  • The EU will have the power to tax and legislate for Northern Ireland in many areas as if it were an EU member state – but without any representation.

  • The ostensible justification for the protocol – because it is required by the Belfast Agreement – is not justified by the text of the Agreement, which says nothing about customs.

  • This is all in clear breach of many promises to protect the Union by the Prime Minister.

The Withdrawal Agreement and the Irish Protocol

  • Article 182 of the Withdrawal Agreement provides that the protocol on Ireland/Northern Ireland (‘the Irish Protocol’) forms an integral part of that agreement. The Irish Protocol contains the so-called backstop which has the ostensible aim of preventing a ‘hard border’ between Northern Ireland and the Irish Republic. This is said to be required by the Good Friday Agreement, but there is nothing about customs or border arrangements in that agreement.

The Irish Protocol establishes a UK-EU customs union

  • Article 6(1) of the Irish Protocol provides that until otherwise agreed, ‘a single customs territory between the Union and the United Kingdom shall be established (“the single customs territory”). Accordingly, Northern Ireland is in the same customs territory as Great Britain.’ The single customs territory is said to comprise ‘(a)the customs territory of the Union defined in Article 4 of Regulation (EU) No 952/2013; and (b) the customs territory of the United Kingdom.’ It should be noted that a single customs territory is the legal definition of a customs union: seearticle 24 of the General Agreement on Tariffs and Trade (‘GATT’) 1947, as amended.

EU customs legislation applies to Northern Ireland, not Great Britain

  • Article 6(2) of the Irish Protocol provides that ‘legislation as defined in point (2) of Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council shall apply to and in the United Kingdom in respect of Northern Ireland (not including the territorial waters of the United Kingdom).’
  • Regulation 2013/952/EU is the Union Customs Code (‘UCC’). The legislation defined in article 5, point 2 of the UCC is the (a) UCC, and its implementing and supplementary provisions, (b) the Common Customs Tariff, (c) legislation establishing EU relief from customs duty and (d) international agreements on customs applying to EU. It is plain therefore that the EU customs legislation applies to Northern Ireland, but not to Great Britain.

Northern Ireland is made part of the EU customs territory

  • The provision of fundamental importance in the Protocol is article 15(1), which provides insofar as material that: “notwithstanding any other provisions of this Protocol, any reference in the applicable provisions of the Withdrawal Agreement and of this Protocol, as well as in the provisions of Union law made applicable to and in the United Kingdom in respect of Northern Ireland by this Protocol, to the territory defined in Article 4 of Regulation (EU) No 952/2013 shall be read as including the part of the territory of the United Kingdom to which Regulation (EU) No 952/2013 applies by virtue of Article 6(2) of this Protocol.’
  • This provision needs unpacking. The territory defined in article 4 of the UCC is the ‘customs territory of the Union.’ As note above, the part of the United Kingdom to which the UCC applies by virtue of article 6(2) of the Protocol is Northern Ireland. Eliminating the deliberately obscure drafting, article 15(1) provides, in effect, that:
  • ‘Notwithstanding any other provisions of this Protocol, any reference in the applicable provisions of the Withdrawal Agreement and of this Protocol, as well as in the provisions of Union law made applicable to and in the United Kingdom in respect of Northern Ireland by this Protocol, to the customs territory of the Union shall be read as including Northern Ireland.’

In short, despite the creation of a single UK-EU customs territory by article 6(1), the protocol repeats the substance of the EU’s first draft of the Withdrawal Agreement, which had provided, in article 4(2) of the draft Irish Protocol, that ‘The territory of Northern Ireland, excluding the territorial waters of the United Kingdom… shall be considered to be part of the customs territory of the Union.’

The effect of the Withdrawal Agreement, therefore, is that Northern Ireland will form part of the EU’s customs territory, and not the United Kingdom’s, although a single customs territory is also established between the UK and the EU. Northern Ireland will thus be in the same customs territory with Great Britain in the same way that it is currently part of the same customs territory as Turkey (see article 3(3) of decision 1/95 establishing a single EU-Turkey customs territory).

It is likely that this constitutes a breach of section 55(1) of the Taxation (Cross-Border Trade) Act 2018, which entered into force in September. This provides that: ‘It shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.’

It cannot have been the intention of Parliament to allow the Government to agree that Northern Ireland should form part of a separate customs territory to Great Britain for any purpose. Otherwise, it would be lawful for the Government to have transferred Northern Ireland into the Turkish customs territory without Parliamentary approval at any time.

This will mean a hard border between Great Britain and Northern Ireland

  • The Irish Protocol expressly contemplates checks on trade between Great Britain and Northern Ireland. Article 7(2) states merely that the parties will use their best endeavours to facilitate trade between Great Britain and Northern Ireland. The Joint Committee is empowered to make non-binding recommendations to avoid ‘to the extent possible, controls at the ports and airports of Northern Ireland.’ The implication is that it may not in all circumstances be possible to avoid such checks. Indeed, article 14(2) of the Irish Protocol gives the EU the right to direct UK authorities to carry out controls to give effect to the Protocol.
  • Trade between the two constituent parts of the customs territory, i.e. the EU and Northern Ireland, on the one hand, and Great Britain, on the other, is regulated by Annex 3: see article 6(1). Articles 3 to 11 of Annex 3 set out the paperwork that will be needed (i.e. UK movement certificates) for such trade, except goods in the possession of travellers and postal packets which will be exempted.
  • Annex 5 applies only to Northern Ireland: see article 6(2). It contains the whole panoply of single market controls, including border controls, on goods. For example, it applies Council Regulation 2017/625/EU. Article 47 of that Regulation requires border controls where animals, products of animal origin, plants, and plant products are first imported into the EU. Official controls include documentary checks, identity checks and physical checks: see article 49.

The ostensible aim of avoiding a hard border between Northern Ireland and Ireland has come at the expense of creating one between Northern Ireland and Great Britain. It should be remembered the definition of a hard border in para [43] of the UK-EU Joint Report of December 2017 was the absence of ‘any physical infrastructure or related checks and controls’.

The EU acquires the power to tax and legislate for Northern Ireland, without any Northern Irish representation

Other provisions of the Protocol require Northern Ireland to abide by EU legislation and taxation: see articles 9 to 12 of the Protocol, and the Annex thereto. References to EU legislation in the Protocol are ambulatory references, so there will be a duty to keep Northern Irish laws and indirect taxes aligned to EU laws and taxes in the future: see article 15(4)-(5).

Furthermore, the EU has full power to legislate in respect of Northern Ireland, and the Court of Justice will have jurisdiction: see article 14(4)-(5). Northern Ireland is, in effect, treated as part of the EU for some purposes but without any representation. This will greatly and illegitimately enhance the powers of Ireland’s Government in Northern Ireland and undermine the Union.

49 comments for: From an analysis of the Withdrawal Agreement’s text: How the Irish protocol would separate Great Britain from Northern Ireland.

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