Protocol on Ireland/Northern Ireland

Negotiations on the border have continued to be separated from other withdrawal issues. In June 2017 when formal negotiations began, talks on the border were separated into a ‘dialogue.’

The December Joint Report also ‘fudged’ the issue. Instead of proposing one solution, it set out three scenarios. The first, and the UK Government’s favoured option is for the Irish border issue to be settled as part of the overall UK – EU future relationship. The second is that the UK will propose specific solutions to solve the Irish border issue.

The third is where there is no agreed solution; in these circumstances, the Joint Report committed the UK to maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

The Protocol on Ireland and Northern Ireland is the EU’s legal text for how this third or ‘backstop’ scenario could operate.

At the heart of the difficulties over Northern Ireland is that any proposed solution needs to try and reconcile three seemingly irreconcilable objectives:

• Avoiding a hard border in Ireland, including physical infrastructure to carry out customs and regulatory checks on goods flowing in either direction
• Allowing the UK to diverge from EU regulations
• Avoiding regulatory divergence between Northern Ireland and the rest of the UK.

In August 2017 the UK published a position paper on Northern Ireland and Ireland. It proposed two solutions to solve the border problem: firstly, a Customs Partnership. This solution envisaged the UK “would act on the EU’s behalf when handling goods from the rest of the world”, collecting EU tariffs at UK ports, supported by a new customs system. 92 The UK acknowledged in the position paper that it was an

“innovative and untested approach”.

The second approach was a “highly streamlined customs arrangement” utilising technology and online pre-screening checks as well as expanded “trusted trader” schemes, to minimise border checks and infrastructure as much as possible.

They have both been rejected by the EU as insufficient to prevent a hard border. Neither position paper comprehensively addresses border checks not related to customs, such as the EU law requirement that all imports of live animals or animal products can only enter the Union via officially designated ‘Border Inspection Posts’, where compliance with EU animal health and food safety law can be verified.

Debate on the technological solutions that might comprise such a stream-lined system has been heavily influenced by a report for the European Parliament’s Constitutional Affairs Committee (AFCO) ‘Smart Border 2.0.’

Reaction to the Protocol

Commentary on the Protocol has been sharply divided. The Prime Minister has said that “no Prime Minister [of the UK] could ever agree” to what the Commission proposed in the Protocol.

Some politicians, including the former DExEU Minister David Jones, have said what the EU proposes amounts to an ‘annexation’ of Northern Ireland.

Arlene Foster, the leader of the Democratic Unionist Party, thanked the PM for her intervention and agreed that the Commission’s draft Protocol was “constitutionally unacceptable”, as it would create a hard border in the Irish Sea.

Preamble

The Preamble to the Protocol largely recalls commitments already made by the UK and the EU and mirrors the language of the Joint Report.

• There are two references to the “unique challenge” and the “unique circumstances” to/of the island of Ireland. This underlines two points. Firstly, the solutions offered by the EU do not form a precedent and will not be offered to the other Member States or third countries. Secondly, that these creative solutions won’t be available to other parts of the UK, such as Scotland, who wish to have greater access to the Single Market.
• The preamble refers to the “UK’s commitment to North-South cooperation, a guarantee of avoiding a hard border including any physical infrastructure, checks and controls and this must be compatible with the overall Withdrawal Agreement”. These commitments were all made by the UK government in their position paper on Northern Ireland and Ireland. They set a challenging set of criteria for avoiding a hard border.
• The preamble also refers to “the people of Northern Ireland” in relation to citizenship and states that the definition is based on Annex 2 of the British-Irish Agreement – the International treaty

between Ireland and the UK which forms part of the Good Friday Agreement. This Annex sets out that the people of Northern Ireland include:

All persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.

Chapter I: Rights of individuals

Article 1: Rights of individuals

This Article is based on the language of the Joint Report and upholds the principle that Brexit will not lead to a “diminution of rights” in Northern Ireland. It alludes to the fact that not all the provisions on human rights in the Good Friday Agreement have been fulfilled – for example, introducing a Bill of Rights in the region.

Unlike the Joint Report, Article 1 refers to an Annex which is meant to specify which provisions of Union law for the “protection against discrimination” are to be included in the “no diminution” pledge.

Movement of persons

Article 2: Common Travel Area

Provisions on the Common Travel Area (CTA) have remained a relatively uncontentious part of the negotiations, partly because the CTA is a bilateral agreement, so this Article is largely based on the language of the Joint Report.

However, it also expands the obligation set out in the Joint Report that the UK respect the CTA “without affecting the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens”, by adding “and their family members, irrespective of their nationality, to, from and within Ireland”.

This added provision is a clarification rather than a new right, as freedom of movement across the EU is already applied to family members irrespective of nationality.

Article 2 does allow the UK and Ireland to:

[m]ake arrangements between themselves relating to the movement of persons between their territories, while fully respecting the rights of natural persons conferred by Union law.

This Article has now been agreed by both negotiating teams.

 Common regulatory area

Article 3: Establishment of a common regulatory area

Article 3 brings into being a common regulatory area (CRA) “comprising the Union and the United Kingdom in respect of Northern Ireland”. The CRA “shall constitute an area without internal borders in which the free movement of goods is ensured and North-South cooperation protected in accordance with this Chapter”.

The CRA is the EU’s solution to translating the provisions of the Joint Report, which called for a ‘backstop’ scenario that would arise if the UK could not provide a solution to leaving the Customs Union and Internal  Market, while not imposing a hard border.

The Joint Report mandated that:

The United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement

Article 3 anticipates there could be different regulatory regimes between Northern Ireland and the rest of the UK. The EU’s view is that how the UK wishes to regulate its economy outside Northern Ireland is a matter for the UK. The UK Government would argue that this is providing a solution they unilaterally committed to avoiding in the Joint Report.

It is not entirely clear which areas are covered by “North-South cooperation”. The Joint Report mentions the Good Friday Agreement, which identified six areas for cross-border cooperation: transport, agriculture, education, health, environment, and tourism. Article 8 of this Protocol extends the areas of coordination to energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport.

Professor Schiek believes this raises questions, as it extends the CRA to include areas beyond the movement of goods, areas that:

[m]ainly comprise services under Article 56 TFEU, with the exception of (higher) education, access to which is a right of economically inactive citizens as well. This raises the question whether the implementation process may lead to extending the common regulatory area beyond the free movement of goods. Given that justice and security encompass lawyers’ services, the question also could be raised whether freedom of establishment (through establishing a branch in either Ireland or Northern Ireland) is also comprised. Further, given the fact that both employers and trade unions have highlighted the importance of continuing access to labour especially for the agro-food sector, which of course raises the question in how far free movement of workers will be encompassed by the protocol. For all these aspects, more clarity on whether the implementation of the protocol may imply an extension of the common regulatory area would have been

desirable.

Free movement of goods

This Article regulates how the free movement of goods will operate on the island of Ireland in the ‘backstop scenario’. Many of the Protocol’s provisions draw upon EU law relating to the

movement of goods in the Single Market. Annexes are referred to throughout Article 4 but are not yet filled. These Annexes will include

specific goods that will be covered by the WA (Annex 2.1), and specific

EU law relating to customs legislation (Annex 2.2), VAT legislation

(Annex 2.3) and customs duties (Annex 2.4) that will apply.

Professor Schiek summarises the provisions relating to goods, with reference to the relevant EU Treaty Articles:

To take full advantage of the EU Customs’ Code, which only in 1993 enabled all Member States to abolish border controls of goods, Article 4 encloses Northern Ireland in the Customs Code (Regulation 952/2013 EU as amended), as well as into the VAT legislation, transforming the UK customs authorities competent for the territory of Northern Ireland into EU customs authorities.

Implementing Article 4, including the collection and distribution of revenue, becomes the task of the Subcommittee of the Joint Committee for supervising the withdrawal agreement (Article 157 Withdrawal Agreement).

Article 4 also references the prohibition of customs duties, of quantitative restrictions on imports and exports, on discriminatory and protective taxation complete with exceptions from the TFEU (Article 4 paragraphs 3-6 of the draft protocol on Ireland/Northern Ireland withdrawal agreement roughly correspond to Articles 30, 34, 35, 36, 110 TFEU).

The provisions in Article 4 aim to ensure there remains a frictionless, invisible border between Northern Ireland and Ireland that entails no checks at the border. They take no account of the UK Government’s commitment to “no new regulatory barriers” between Northern Ireland and the rest of the UK, as set out in paragraph 50 of the Joint Report. Although the UK did provide for an option for “distinct arrangements” if the Northern Irish Executive and Assembly consented. These provisions are also excluded.

Article 4(2), which states that the territory of Northern Ireland “shall be considered to be part of the customs territory of the Union,” excludes the territorial waters of the UK. Mars et al say the consequence of this exclusion is:

That all fish caught in the territorial waters of a Member State are treated as being EU customs goods, which can move freely throughout the EU. Until the future relationship between the UK and the EU is agreed upon, it is not clear if fish caught in the UK territorial waters will be treated as EU customs goods or as UK customs goods. This provision will also allow Northern Ireland to leave the Common Fisheries Policy (after the transition period) and for the UK Government to set a new UK-wide fisheries policy, should this be provided for in the future relations agreement.

Article 4(10) provides for “a mechanism for revenue collection and distribution”. Professor Steve Peers suggests “the allocation of revenue could well be a contentious issue”.  There would also have to be “reliable estimates of the percentage of goods entering Northern Ireland ports which are destined for Ireland”. 107 This is because at present revenue collection and distribution is monitored and calculated at a national level.

Agriculture Fisheries and Energy

Articles 5, 6 and 7 set out how the CRA will operate in respect to agriculture and fisheries the Single Electricity Market and the environment.

All three Articles are implementing mechanisms that will ensure the relevant EU law will apply in Northern Ireland with respect to these areas.

The specific legislation is supposed to be laid out in an Annex for each Article; these are yet to be provided. Rather than replicating the entire EU acquis in each of these areas, the EU will probably suggest specific regulations that they believe should apply to Northern-Ireland postBrexit.

Agriculture and fisheries, and in particular the sanitary and phytosanitary regime, are of particular importance to trade across the island of Ireland, as the Northern Irish Affairs Committee reported in March this year:

Dependency on cross-border trade is most notable in the agrifood sector. The Government acknowledges that North-South cooperation on agriculture means the island of Ireland has become “a single epidemiological unit for the purposes of animal health and welfare.”

On the issue of energy, the Prime Minister committed in her Mansion House Speech, to continued cooperation with the EU: On energy, we will want to secure broad energy co-operation with the EU. This includes protecting the single electricity market across Ireland and Northern Ireland – and exploring options for the UK’s continued participation in the EU’s internal energy market.

Other areas of North-South cooperation

Article 8 sets out areas beyond those mentioned in Articles 4-7, where cooperation, and therefore some shared legal provisions, will need to apply across the island of Ireland. The areas are the environment, health, agriculture, transport, education and tourism, as well as energy, telecommunications, broadcasting, inland fisheries, justice and security,  higher education and sport.

However, the measures will only be required to “maintain the necessary conditions for continued North-South cooperation”. So the full EU acquis will not need to apply in these areas. There are no specific obligations as to how this cooperation should operate.

Article 8 also provides for the UK and Ireland to make new arrangements on North-South cooperation, “building on” the Good Friday agreement, but says these arrangements should be “in full respect of Union law”.

The Article also provides roles for the Joint Committee – it will monitor the “necessary conditions for North-South cooperation”- and the Specialised Committee, which can recommend specific measures to the Joint Committee. However, beyond making recommendations to the EU and UK, the Joint Committee is not endowed with any specific powers to enforce these, suggesting a looser supervisory system than the areas covered by Articles 4-7.

This Article has now been agreed by both negotiating parties.

State Aid

This Article ensures that EU state aid laws will continue to apply to Northern Ireland, though only for “measures that affect trade” between Northern Ireland and the EU. Again, reference is made to an Annex that is blank, so it is not clear to what extent EU state aid law might potentially apply to Northern Ireland.

However, state aid is one of the areas where the Government has indicated it is prepared to remain closely aligned with the EU. In her Mansion House speech, the Prime Minister announced: “we may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU’s”.

This approach contrasts with the Labour Party, who while committing to create a customs union with the EU, have said they would also: [s]eek to negotiate protections, clarifications or exemptions,

where necessary, in relation to privatisation and public service competition directives, state aid and procurement rules and the posted workers directive.

Specialised Committee

This Article sets out how the Specialised Committee on Northern Ireland will operate. It is one of five specialised committees created by the draft Withdrawal Agreement.

The Committee will be composed of representatives from both the UK and EU. It excludes reference to any representative from Ireland. The Committee can examine proposals from the North-South bodies set up under the Good Friday Agreement, which is presumably how the bilateral UK/Ireland relationship is supposed to intersect with it.

The Specialised Committee can discuss issues relating to the Protocol and make recommendations to the Joint Committee in relation to the Protocol. Overall these are fairly limited roles, and the Specialised Committee is more of a forum than a decision-making body.

The Committee is also created to “facilitate the implementation and application of this Protocol”. However, it is not given any specific enabling powers to do so or to enforce any solutions. It will rely on escalating matters to the Joint Committee for action to be taken.

How important this Committee will be is likely to be influenced by the level of representatives sent by the UK and the EU (this is not specified in the Article), and whether North-South bodies decide to submit issues for it to discuss.

Supervision and enforcement

Article 11 provides for enforcement mechanisms to regulate the common regulatory area. This Article would mean that the EU institutions and the CJEU would continue to have authority over the UK and its residents. De Mars et al explain what they believe is the basis for such a provision:

In relation to a Common Regulatory Area on the island of Ireland, the EU institutions would have continuing authority over the UK and its individuals (to the extent allowed by EU law). The Court of Justice of the European Union would have judicial oversight over the exercise of those powers in the entirety of the UK. This is necessary if NI is inside a Common Regulatory Area, as there would need to be EU governance over that area to preserve its integrity and operation. Not all legislation that relates to the functioning of the Common Regulatory Area will be produced in Northern Ireland, given the UK’s constitutional arrangements.

Article 11 of the Protocol mirrors the language of Article 126 in the main body of the WA. However, Article 126 applies only during the transition period. Article 11 would apply in perpetuity to Northern Ireland after the transition period unless otherwise amended.

An issue that requires further analysis is that Article 11 is applied to the

the whole UK, while Article 3 of the Protocol says the CRA only applies “in respect of Northern Ireland”. This extension to the whole UK may be deemed necessary as the UK will continue to have to legislate for non-devolved competencies in Northern Ireland. It is not clear why this provision does not make clear that such supervision by the CJEU and EU is only required for Northern-Irish matters.

Steve Peers questions why the EU bodies and the CJEU require such extensive powers, “given that the EU and Turkey agreed on a customs union without equivalent provisions”. He also points to the fact that

Article 162 of the draft WA provides for a dispute resolution mechanism that includes a role for the CJEU and argues that would be sufficient for enforcement of the CRA.

Dagmar Schiek lays out other implications that would arise from

implementing Article 11:

This would, for example, mean that any decisions and directives the EU Commission issues in relation to state aid have a direct effect in Northern Ireland and that the decisions of the European Court of Justice will have to be complied with for Northern Ireland as if the UK was still a Member State. Further, the Commission could continue to raise infringement actions against the UK for Northern Ireland’s non-compliance with the protocol, and Northern Irish courts could refer cases to the Court of Justice of the European Union within the ambit of the protocol. 113

Common provisions

Article 12 sets out which of the provisions of the main Withdrawal Agreement apply to the Northern Ireland Protocol. There are a few exceptions that are worth highlighting.

Firstly, Article 12(3) allows the Protocol to be updated should an EU act it refers to be amended or replaced. Once the Annexes are completed, the scope of the EU acquis applying to Northern Ireland, and how often the protocol might be amended, will be clearer.

Secondly, Article 12(4) creates an exception to Article 6 of the WA. Article 6 means the UK has ‘no seat at the table’ when the EU and its institutions make decisions. This part of the Protocol allows UK officials to attend meetings if an EU body is discussing UK residents, EU law relating to the Protocol, or where the UK’s participation is needed by the EU. As elsewhere in the WA, UK representatives will have to be invited by the EU, by “exception” on a “case-by-case” basis, and the representatives will have no voting rights.

Article 12 also states that the Protocol is to come into force after the transition period ends. This applies to all parts except for the setting up of the Specialised Committee, which is created when the WA is signed.

Safeguards

Article 13 is a mechanism that allows both Parties to take unilateral action, i.e. actions not prescribed by the Protocol, if “serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist” occur.

However, these difficulties must be caused by the application of the Protocol; they cannot be put in place to remedy any emergencies on the Island of Ireland.

This power is also contained in provisions which call for such actions to be proportional to the harm being caused, and provisions that the other Parties may undertake their own reciprocal measures to counter-balance the effect of the emergency measures.

The safeguarding and rebalancing measures will be governed “by the procedures and dispute settlement arrangements set out in Annex 3”. However, Annex 3 is yet to be completed and published.

We can, however, look to the EEA Agreement as the rest of Article 13 of the draft WA draws so heavily upon it. Article 114 of the EEA Agreement provides:

4. The Contracting Party concerned shall, without delay, notify the measures taken to the EEA Joint Committee and shall provide all relevant information.
5. The safeguard measures taken shall be the subject of consultations in the EEA Joint Committee every three months from the date of their adoption with a view to their abolition before the date of expiry envisaged, or to the limitation of their scope of application.

Each Contracting Party may at any time request the EEA Joint Committee to review such measures

It is likely that the Joint Committee established by the WA will have a similar role to the EEA Joint Committee.

Protection of financial interests

This Article is a commitment that both parties will “counter fraud and any other illegal activities” affecting their financial interests. It is an acknowledgment that the unique solutions required to keep the Irish border frictionless may lead to increased possibilities for smuggling and

fraud.

The Northern Irish Affairs Committee report on the border states that smuggling has always been a feature of the border, and it continues today largely because of the existence of different excise and VAT regimes in Ireland and the UK. The Committee heard evidence that increased smuggling could lead to a rise in paramilitary activity.

However, this will in part depend on the degree of difference in the UK’s and EU’s future tariff regimes. The Government’s desire to pursue an independent trade policy would suggest that over time there is likely to be increased divergence in the UK’s and EU’s tariffs.

Subsequent agreement

Article 15 underlines that the Protocol is meant to be a backstop scenario and is not the preferred outcome of either party. Should the UK Government provide its own solution to reconcile its desire to leave the Single Market and Customs Union while avoiding a visible border with Ireland, then the Protocol will not be enabled. But Article 15 reiterates that whatever solution is found, it must address “the unique circumstances on the island of Ireland, avoiding a hard border and protecting the 1998 Agreement in all its dimensions”.

This Article has now been agreed by both negotiating teams.

Response

On 19 March the Prime Minister wrote to Donald Tusk to express her support for the Withdrawal Agreement text and to set out what areas still needed further work.

On Northern Ireland she remained hopeful that the future trading relationship would provide the solution to the border issues, but committed to exploring further solutions should it fall short:

I continue to believe, as I set out at the Mansion House, that we can achieve a close partnership that provides for such a deep trading relationship between the UK and the EU that specific measures in relation to Northern Ireland are not required. This would be in the best interests of Northern Ireland and, of course, of Ireland. If our future partnership cannot completely resolve the issues in such a way as to meet our commitment on the border, I will want to explore additional specific solutions that can address those unique circumstances. I am committed to agreeing in the Withdrawal Agreement operational legal texts for at least the so-called ‘backstop option’ set out in the Joint Report, in parallel with discussion of these other scenarios.

The Prime Minister’s letter to Donald Tusk reiterates the UK’s Government view that an agreement on future relations should be the focus of efforts to solve the Northern Irish border issue.

Analysis by Dr. Katy Hayward and Professor David Phinnemore at Queen’s University Belfast suggest that a ‘deep and comprehensive Free Trade Agreement’ is insufficient to avoid a hard border.

The UK Government’s approach is in contrast to that of the Irish  Government, and Tony Connelly argues this will continue to cause tension and possibly a breakdown of the talks:

“The option of alignment is the radioactive core of the breakdown. Dublin believes Michel Barnier’s negotiating mandate, granted by 27 EU leaders, provides for a generous interpretation of north-south co-operation. London believes that the interplay between north-south co-operation and the EU rulebook is much more limited.

The EU’s mantra is that Brexit needs to be an “orderly withdrawal”. The scope for a disorderly withdrawal on the island of Ireland is ample, so the border, in Dublin’s view, is a withdrawal treaty imperative, not a free trade issue to be tackled later. The Irish government would prefer the border to be resolved through a free-trade agreement if possible but believes a “backstop” must be in place in the meantime.

This Article draws on BRIEFING PAPER   Number 8269, 23 March 2018   Brexit: the draft withdrawal agreement. UK public sector information is reproduced pursuant to the Open Government Licence  The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available  at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).