UK implementation of Ireland/Northern Ireland Protocol (Northern Ireland)

The UK government has today published its approach to implementing the Ireland-Northern Ireland Protocol of the Withdrawal Agreement that was signed with the European Union.

The Protocol sets up special arrangements that stem from the Withdrawal Agreement and apply in Northern Ireland from 1st January 2021, until at least 2024, when the first four-year consent vote process contained in the Protocol is initiated.

The Protocol covers a range of areas: human rights, the Common Travel Area, customs and trade, regulation of manufactured goods, the Single Electricity Market, some limited state aid provisions, and VAT and excise. The paper published today sets out the UK’s thinking in all of these areas. But the core of the Protocol is the provisions on customs and trade. It is these areas which are covered in most detail in the document.

It is the responsibility of the UK Government and UK authorities to give effect to the Protocol in Northern Ireland. The Protocol has as Annex 2, a list of EU law that will continue to apply in Northern Ireland – at least 2021 to 2024.

The UK approach is set out in a Cabinet Office Command Paper – here.

The paper sets out four key commitments that will underpin the UK Government’s approach to implementing the Protocol:

• There will be unfettered access for Northern Ireland’s producers to the whole of the UK market and this will be delivered through legislation by the end of the year.

• No tariffs will be paid on goods that move and remain within the UK customs territory

• Implementation of the Protocol will not involve new customs infrastructure – with any processes on goods moving from Great Britain to Northern Ireland kept to an absolute minimum so that the integrity and smooth functioning of the UK internal market is protected.

• Northern Ireland’s businesses will benefit from the lower tariffs delivered through our new Free Trade Agreements with countries like the United States, Australia, New Zealand and Japan – ensuring Northern Ireland firms will be able to enjoy the full benefits of the unique access they have to the GB and EU markets.

Today’s publication also sets out plans to establish a new business engagement forum, which will meet regularly to allow Northern Ireland’s businesses to put forward proposals and provide feedback on how to maximise the free flow of trade. The Northern Ireland Executive will be invited to join the forum.

The Withdrawal Agreement is administered by a Joint EU-UK Committee set up under the Agreement, and both the Agreement and the Protocol have dispute mechanisms.

More detail is expected, and accordingly I will write more Blog posts.

Withdrawal Agreement Ireland/Northern Ireland Protocol (Northern Ireland)

I posted earlier about the first meeting of the EU-UK Withdrawal Agreement Joint Committee. The first meeting of the Specialised Committee that deals with the Ireland/Northern Ireland Protocol has also been held. Note, this Specialised Committee will also have a specific advisory group report to it.

The Ireland/Northern Ireland Protocol is a particularly tricky aspect of the EU-UK Withdrawal Agreement that was signed late in 2019. It requires new arrangements to be set up for Northern Ireland. I have posted about this before.

The EU issued (and published) on 30 April a Technical Note on the implementation of the Protocol – here.

At various points, EU Technical Note reminds that from the end of the transition period, the UK has committed to apply in Northern Ireland the provisions of EU law listed in Annex 2 to the Protocol relating to sanitary and phytosanitary (SPS), products, and goods requirements.

The altered Cardinal Environment EHS Legislation Registers and Checklists for Northern Ireland will have these Annex 2 EU Law identified at the head of the Registers. We are working to the 31st December 2020 deadline for these alterations.

New Ireland/Northern Ireland Trade Arrangements (UK Brexit)

* Exit day is 31st January 2020

* Withdrawal Treaty transition period end is 31st December 2020

The revised UK-EU Withdrawal Treaty is expected to be ratified shortly by the UK enacting the UK’s EU (Withdrawal Agreement) Bill (currently in draft, known as the WAB). This will bring into force both the Exit day and the transition period.

The Withdrawal Treaty includes an Ireland/Northern Ireland Protocol of new trade arrangements that will apply to trade between the UK and the EU via the island of Ireland after the transition period.

* Ireland is an EU member state.

* Northern Ireland (NI) is part of the UK.

* The UK will be a third country vis a vis the EU after Exit day.

* The transition period stays (delays) the effect of Exit to give time for a trade deal to be put in place between the UK and the EU.

The Ireland/Northern Ireland Protocol makes a number of arrangements applicable to trade – that will apply after the transition period –

(1) Northern Ireland (NI) will operate inside the EU’s single market for industrial goods and agrifood, and comply with the EU’s Union Customs Code (whilst at the same time Norther Ireland will remain a legal part of the UK’s customs territory – the Protocol does not affect the UK customs territory).

(2) Goods entering NI from GB will be coming from a third country (the UK). Because those goods will be able to cross the land border into the EU’s single market, then customs procedures, tariffs, regulatory and agrifood checks will be required at the NI points of entry from GB: Warrenpoint, Belfast and Larne ports, and at airports – or more likely due to lack of infrastructure – at the GB ports of exit: Liverpool, etc, acting for the EU.

(3) Goods going in the opposite direction, Northern Ireland to GB, will require summary exit declarations under the EU’s Union Customs Code. The detail of this is not yet published.

(4) Beyond that, checks on goods going from Northern Ireland to GB will be up to the UK. It will have obligations under the WTO and may want to “protect” its own internal market from Irish-origin and therefore EU goods. In addition, new trade deals the UK agrees outside of the EU sphere may stipulate or necessitate the checking of some goods.

(5) Much depends on the detail of the new set-up –

Under the UK-EU Withdrawal Treaty , a specialised sub-committee, which forms part of the overall UK-EU Joint Committee to be created under the UK-EU Withdrawal Treaty to manage the new relationship between Britain and Europe, will agree certain aspects.

Note : the EU has acknowledged that Ireland will need to have a reserved seat – along with Spain and Cyprus, who have Protocols of their own on Gibraltar and the issue of the British military base on Cyprus in the UK-EU Withdrawal Treaty – at the Joint Committee table.

The sub-committee will agree a list of goods and categories of goods which are only destined for, or will be consumed in, Northern Ireland – in other words, where there is no obvious risk they will cross the border and enter the single market.

(6) Goods from GB to NI (dealt with by this sub-committee) may be exempted from tariffs altogether, or where tariffs are paid and where the EU tariff is higher than the UK one, importers will be able to apply for a rebate.

(7) Live animals will be checked coming in to NI from GB (as they are now), and agrifood products GB to NI will also need to comply with EU food safety requirements.

(8) The new UK-EU trade deal itself will also affect the work of the Joint Committee specialised sub-committee – if the UK-EU trade deal results in zero tariffs and quotas, then that will largely remove the need for tariff exemptions and rebates on goods moving from GB to Northern Ireland (traders would still have to do the paperwork to show that the consignments they are moving are actually tariff-free).

I will post further on this matter, when more information is available.