The text released on the 17th of October 2019 deals specifically with adaptations/revisions made to the original Protocol on Ireland/Northern Ireland (December 2018).
Approval of this new text by both the UK parliament and the EU 27 would remove the previous requirement for a backstop, an insurance policy designed to protect the Good Friday Agreement by preventing a hard border on the island of Ireland at the end of the implementation period.
Why the need for a Protocol?
There is a historic, enduring, bilateral relationship between the UK and Ireland.
The Agreement of 1998, i.e. the Good Friday Agreement, has led to a significant normalisation of the relationships between North and South, East and West on these two islands. Normalisation has brought stability and reconciliation.
Shared EU membership has both stabilised and enabled the type of north-south co-operation across the Irish border which is a pillar of the 1998 Agreement. Union law has provided a supporting framework for the provisions on rights, opportunities and safeguards.
The Protocol recognises the rights of Irish citizens in Northern Ireland, by virtue of their EU citizenship, to continue to enjoy, exercise and have access to rights, opportunities and benefits of the Union.
Both the UK and EU recognise that the Good Friday Agreement must be protected. The UK Government are committed to protect North-South co-operation and guarantee to avoid a hard border in Ireland.
At the same time, both the EU and the UK recognise the constitutional status of Northern Ireland within the UK, and that, as an integral part of the United Kingdom, Northern Ireland must have unfettered access to the internal United Kingdom market.
Whilst the text released on the 17th of October 2019, runs to 64 pages and contains 18 separate Articles, 5 Annex plus technical adaptations to the Withdrawal Agreement (published on the 25th April 2019), there are three key areas within the deal:
- Customs Arrangements
- Political Consent
Article 4: Customs Territory of the United Kingdom
By law (de jure), Northern Ireland remains part of the UK Customs territory and therefore nothing in the Protocol shall prevent Northern Ireland from being included in the territorial scope of any agreements the UK may conclude with ‘third countries’ post-Brexit and the ending of the transition period.
PROVIDED that such agreements, don’t prejudice the application of the protocol.
In practice (de facto), i.e. in administrative terms, Northern Ireland will remain subject to EU Customs & Tariffs rules.
This means that there will be tariffs payable, via the UK government authorities on behalf of the EU, on certain goods.
Exemptions will apply to:
- Personal goods.
- Small items, i.e. when moving to a new house.
- A list of exempt items that will be put together by a joint EU/UK committee.
This is likely to result in additional processes and costs for the UK authorities acting on behalf of the EU.
Article 5 provides additional information around when customs duties shall apply:
- based on risk – incentive for undeclared onward movement,
- final destination & use, and,
- nature of movement and value of the good.
Article 5 also defines processing of goods as meaning:
“Any alteration of goods, any transformation of goods in any way, or any subjecting of goods to operations other than for preserving them or affixing labelling marks, labels, seals or any other documents to ensure compliance.
Article 8: VAT & excise
The provisions of European Union law, concerning goods, shall apply in respect of Northern Ireland.
This means that Northern Ireland will be subject to EU VAT regulations and the UK authorities shall be responsible for the collection of VAT and excise duties in respect of Northern Ireland.
IN OTHER WORDS…….
Northern Ireland is in the European Union VAT area and the United Kingdom Government authorities will be collecting it.
Despite of, and more likely because of the complicated manner of VAT & excise, detail is minimal here, however, any controls introduced will need to be without checks at the internal border in Ireland.
This is likely therefore to mean checks at airports and seaports: FYI, Larne port is currently the only approved port of entry for livestock imports into Northern Ireland.
Article 12: Implementation, Application, Supervision and Enforcement
“The authorities of the United Kingdom shall be responsible for implementing and applying the provisions of Union Law……… made applicable by the Protocol……. In respect of Northern Ireland.”
“Union (EU) representatives shall have the right to be present during any activities of the authorities of the United Kingdom, related to the implementation and application.”
In practice, this could mean, Irish Customs officials taking part in checks at Northern Ireland ports with UK Customs Officials.
Article 18: Democratic Consent in Northern Ireland
This outlines the means by which the people of Northern Ireland will provide consent for the way the country is administered post-Brexit – particularly in terms of trade.
“The United Kingdom shall seek democratic consent in Northern Ireland in a manner consistent with the 1998 Agreement.”
Presently, the NI assembly and executive work on a basis of cross-community consent for sensitive matters. This effectively provides both traditions with a means to block any new legislation, even when it’s in the wishes of the majority in Northern Ireland.
Article 18 states that in the case of democratic consent in Northern Ireland to the continued application of Articles 5 to 10, a SIMPLE MAJORITY of members of the Northern Ireland Assembly will suffice.
This vote will take place 2 months before the end of the initial period – “the initial period is the period ending 4 years after the end of the transition period” – and any subsequent period.
Where the decision reached has cross-community support, as well as a simple majority, the subsequent period is 8 years following the period. This is expected to provide a level of stability for businesses here – 5 year + planning.
Other Articles/Items of Note
The constitutional question of whether Northern Ireland should remain in the UK or become part of a united Ireland was enshrined in the Good Friday Agreement, in which it was agreed that there would be no change without the consent of the majority. This is called the ‘principle of consent’.
Article 1 reiterates this.
The United Kingdom will continue to facilitate the related work of the cross-border institutions and bodies set up as pursuant to the 1998 GFA.
Article 3 sets out the protection of the Common Travel Area arrangements between the United Kingdom and Ireland and the associated rights and privileges enjoyed by British and Irish Citizens when in the other’s state.
Goods placed on the market in Northern Ireland shall be governed by the law of the UK.
Northern Ireland products placed on the market in the EU, are to be labelled as either:
- UK (NI),
- United Kingdom (Northern Ireland), or by,
- A unique numeric code.
Northern Ireland products placed on the market in the United Kingdom only, can be labelled as above, or simple as made in the United Kingdom.
Assessments, registrations, certificates, approvals and authorisations issued or carried out, based on provisions of Union Law, by competent authorities of the UK or by bodies established in the UK, will be recognised by EU member states.
Northern Ireland registrations, certifications, approvals and authorisations of sites, installations or premises in Northern Ireland will be recognised by the European Union.
Veterinary certificates and official labels for plant reproductive materials from Northern Ireland will be recognised by the European Union.
Qualified persons in Northern Ireland will be able to test and release batches of a medicinal product imported into or manufactured in Northern Ireland.
Any conformity marking, logo or similar required by the provisions of Union Law, will be valid in Northern Ireland and shall be accompanied by the indication UK (NI)
State Aid provisions of Union law shall apply in regard to measures supporting the production of, and trade in agricultural products in Northern Ireland – in respect of measures that affect that trade between Northern Ireland and the EU.
UK authorities can also support the production of, and trade in agricultural products in Northern Ireland – up to a determined maximum overall annual level of support.
Continued commitment to (an opportunity to build on), North–South co-operation, including in the areas of environment, health, agriculture, transport, education, tourism, energy, telecommunications, broadcasting, inland fisheries, justice & security, higher education and sport.
There are at least 142 areas of informal cooperation (in education, health, transport, security, and environmental protection, for example) across the Irish border, much of which has been facilitated by the common legal and policy framework of the EU.
Articles 14 & 15
Formation of a specialised committee and a joint consultative working group composed of representatives from both the United Kingdom and the European Union.
Both the UK and the EU have the unilateral ability to take any necessary safeguard measures to mitigate against any serious economic, social or environmental difficulties they believe have been caused by the Protocol.
The United Kingdom and the European Union shall counter fraud and any other illegal activities affecting the financial interests of either (or both) the United Kingdom and the European Union.