Professor Stephen Weatherill, Somerville College and Law Faculty,
Oxford University
Political misdirection
On Wednesday 11 March 2020, at a
meeting of the Future Relationship with the European Union Committee of the
House of Commons, the following exchange took place:
Hilary Benn: “On goods
moving from GB to Northern Ireland under the Northern Irish Protocol, we know
there are some regulatory checks at the moment … there will be additional checks once the
Northern Ireland Protocol is implemented won’t there?”.
Michael Gove: “That’ll be
a matter for the Joint Committee”.
No it won’t. No it isn’t. There
will be additional checks. Mr Gove is wrong.
He’s not alone. Failing to grasp
what are the UK’s legal obligations under the Protocol seems contagious.
Interviewed on SKY television on 2 February 2020 Dominic Raab claimed that the
imposition of extra checks would be “directly in conflict” with the agreements
reached with the EU. He is wrong. He could not be more wrong: the absence of extra checks would be
directly in conflict with those agreements. Brandon Lewis, who took over as
Secretary of State for Northern Ireland in February 2020, also moved quickly to
insist there would be no border down the Irish Sea. He is wrong too, unless the
UK plans to violate its international obligations.
But Mr Gove and his colleagues
were following a well-trodden trail of misdescription. The Prime Minister has
been even more blatantly wrong, and repeatedly so. Interviewed on SKY
television in December 2019, shortly before the General Election, he said:
“… there’s no
question of there being checks on goods going NI/GB or GB/NI … We’re a UK
government, why would we put checks on goods going from NI to GB or GB to NI?
It doesn’t make sense.”
On the campaign trail in November
Mr Johnson had encouraged exporters to Great Britain from Northern Ireland who
were confronted by forms to throw them in the bin: he insisted there would be
no checks. He did not change his tune once he had banked victory in the
December General Election. In the House of Commons on 22 January 2020 Jeffrey
Donaldson of the DUP welcomed the PM’s “assurance that there will continue to
be unfettered access for Northern Ireland businesses to the UK single market”,
but asked whether that commitment also applies “to goods moving from Great
Britain to Northern Ireland?”. “Emphatically it does”, replied Mr Johnson.
Emphatically it does not, as is clear
from an understanding of the Protocol.
The purpose of the Protocol
The Protocol on Ireland/ Northern
Ireland attached to the Withdrawal Agreement is driven by the perception that,
as its Preamble affirms, “the United Kingdom's withdrawal from the Union
presents a significant and unique challenge to the island of Ireland” and “that
the achievements, benefits and commitments of the peace process will remain of
paramount importance to peace, stability and reconciliation there”. Its most
high-profile concrete aim is to guarantee avoidance of “a hard border,
including any physical infrastructure or related checks and controls” at the
frontier between Ireland and Northern Ireland, as the Preamble to the Protocol
has it. So the current physically invisible state of the political border on
the island of Ireland should not change at all as a result of the UK’s
withdrawal from the EU. This matters to the economy, this matters to the
preservation of peace.
And, since the checks required at
the external frontiers of the EU must occur somewhere, the aim of ensuring that
they do not occur at the border between Ireland and Northern Ireland is
achieved by ensuring that they shall occur elsewhere, at the border between
Great Britain and Northern Ireland. There will be a hardened border within the
UK. The Protocol is carefully written: it avoids saying this. But that is what it does. It is what Mr Johnson
accepted in abandoning Mrs May’s deal which would not have placed any new
restrictions between Northern Ireland and GB but which would have accepted
UK-EU regulatory alignment and a single UK-EU customs territory. Mr Johnson’s oven-ready
election-winning deal reduced the scope of regulatory alignment to NI-EU alone
in order to unleash GB’s regulatory autonomy both domestically and in external
trade policy. This inevitably entails new restrictions on trade in goods between
Northern Ireland and GB as a result of the absence of regulatory alignment
between GB and the EU.
Mr Gove and Mr Johnson and other
members of the Cabinet are denying what they have already accepted.
The content and duration of the Protocol
Let us be clear what the Protocol
requires – or, put another way, what the UK has already committed to in the legally
binding Withdrawal Agreement.
The Protocol locks Northern Ireland
(but not the wider UK, i.e. not Great Britain) into regulatory alignment with a
weighty body of EU rules governing manufactured and agricultural goods. The
detail is found in Annex 2 to the Protocol: 287 EU legislative instruments are
listed, all of which are to be applied in Northern Ireland, in order to ensure
it is sufficiently aligned to the EU’s internal market acquis for the EU to be
prepared to treat the Northern Ireland - Ireland border as soft in the same way
that borders found internally within the EU are soft. That NI-EU alignment is
extended by the Protocol also to cover key trade rules including those
concerning the EU’s customs regime, VAT and excise rules, those governing the
single electricity market and state aid rules in respect of measures which
affect the trade between Northern Ireland and the EU which is subject to the
Protocol.
The Protocol applies after the
expiry of the transitional period. That is currently set for the end of 2020,
and although the Withdrawal Agreement allows for a one-time extension of up to
two years, the UK government has pledged not to seek such extension. (The
Coronavirus may change that attitude, but it will not change the content of the
Protocol). The Protocol is terminable by a subsequent EU-UK agreement which
shall indicate the parts of the Protocol which it supersedes (Article 13(8)
Protocol) but for such an agreement to remove the need for the Protocol in its
entirety would require the type of comprehensive UK-EU regulatory alignment
which is exactly the opposite of what Brexit is intended to achieve, according
to the speech
delivered by the UK’s lead negotiator David Frost recently in Brussels, though one
should not forget that a rather different tale was told by cherry-picking Brexiters
back in 2016. The parts of the Protocol which concern trade rules can be set aside
according the procedure foreseen by the Protocol’s Article 18, “Democratic
Consent in Northern Ireland’, whereby alignment may be brought to an end by
decision of the Northern Ireland Assembly according to a managed timetable set
out therein. Since this would bring back into play the hard border on the
island of Ireland that the Protocol is designed to prevent any such decision seems
for the time being improbable. So the likelihood is that the Protocol is here
to stay for some time to come. Its true meaning has long-term importance.
But what is its true meaning? The Protocol is not an easy read. The Protocol
is not intended to be an easy read. It is an exercise in studied deception. But
the key to understanding it is not to look at what it says, but instead to look at what it does.
To which customs territory does Northern Ireland belong?
The Protocol says that Northern
Ireland is part of the customs territory of the United Kingdom (Article 4). And
this is backed up by Article 5(1) which provides that no customs duties shall
be payable for a good brought into Northern Ireland from another part of the
United Kingdom by direct transport unless that good is at risk of subsequently
being moved into the Union, whether by itself or forming part of another good
following processing. So – it seems – the norm is no duties on GB to NI trade, while
the exception – where the good is at risk of onward movement to the EU – is
payment of duties.
But what the Protocol does in its Article 5(2) is to reverse
the presumption expressed in Article 5(1). A good brought into Northern Ireland
from GB is considered to be at risk of subsequently being moved into the Union
unless it is established that that good will not be subject to commercial
processing in NI and fulfils criteria to be established in due course by the
Joint Committee. The shaping of the governing criteria by the Joint Committee will
plainly be important but the key point right now is that goods are deemed to be
at risk of onward movement and so attract an obligation to pay duties – unless
it is shown they are not. The burden is on the trader to show that the
relatively tightly drawn exception for goods only destined for Northern Ireland
and not for processing applies. Article 5(6) grants the UK a power to reimburse
duties levied on goods pursuant to the provisions of EU law made applicable by the
Protocol – but that assumes that payment has already been made and in any event
any such reimbursement must comply with the EU’s state aid rules contained in
Article 10 of the Protocol.
The starting point, then, is that
duties are payable. So what the Protocol does is not to treat Northern Ireland
as part of the customs territory of the UK. That point is strengthened when one
understands that, notwithstanding its calculatedly evasive language, what the
Protocol does in its Article 5(3) is to lock Northern Ireland into the entirety
of the EU’s Customs Code, the Common Customs Tariff, legislation setting up a
Union system of relief from customs duty, and international agreements
containing customs provisions in so far as they are applicable in the EU
(subject only to a reservation to the Joint Committee of the job of
establishing the conditions applicable to certain fishery and aquaculture
products) and via its Article 5(4) also a number of other customs-related
measures, among them the EU’s trade defence instruments covering inter alia
anti-dumping and anti-subsidy measures.
So the Protocol says that Northern Ireland is part of
the customs territory of the United Kingdom (Article 4) but that is not what it
does. De facto Northern Ireland is
part of the EU’s customs territory.
Does the Protocol secure unfettered trade within the UK’s internal market?
The Protocol says that it is dedicated to the protection of the UK internal
market (Article 6) and that nothing shall prevent the United Kingdom from
ensuring unfettered market access for goods moving from Northern Ireland to
other parts of the United Kingdom's internal market (Article 6(1)).
But that is not what it does. The UK’s existing internal market
is not protected, because what the Protocol does is to require that new
barriers be introduced to regulate trade between GB and NI (in both directions,
but especially east to west). Some will be required to implement the new
customs regime, mentioned above, but others, likely far more significant, will
be required to address the point that after the expiry of the transitional
period (probably at the end of 2020, pace
coronavirus) the GB part of the UK is no longer locked into the “ecosystem” of
binding rules and institutional and constitutional disciplines which make up
the EU internal market for goods. The point is that given the absence of
commitment to persisting regulatory alignment between the EU and GB, the risk
arises that goods originating in GB or imported into it from a third country
will be routed through Northern Ireland and over the soft border into the EU’s
internal market without any payment of tariffs or checks for compliance with EU
rules, thereby harming the integrity of the EU’s customs union and internal
market. Therefore compliance with EU rules on matters covered by the Protocol such
as product composition, safety, technical standards and sanitary and
phytosanitary requirements will need to be checked, because GB will no longer
be bound by these rules. The Protocol does not say exactly how these checks
shall occur, nor exactly how intense they shall be: it is in principle for the
UK to implement and apply the EU rules made applicable by the Protocol to the
United Kingdom in respect of Northern Ireland, subject to the proviso that EU
representatives have the right to be present during any such activities pertaining
to implementation and application (Article 12). But it is clear that what the
Protocol does is to require that there shall be such checks.
So Article 6(1) of the Protocol’s
claim that nothing shall prevent the United Kingdom from ensuring unfettered
market access for goods moving from Northern Ireland to other parts of the
United Kingdom's internal market (presumably deliberately) misses the point
that it is GB to NI – east to west – trade which is the main problem. It will
not be unfettered. There will be customs and other regulatory checks on goods
exported from Great Britain to Northern Ireland. But Article 6(1) is not even
true on its own limited terms. West to east trade within the UK is affected
too. What the Protocol does – via, once again, evasive language buried in
Article 6 - is to require that the normal formalities applicable to goods leaving
the EU’s customs territory shall apply to goods leaving NI for GB. Pursuant to Regulation
952/2013 on the EU Customs Code that means the completion of an exit
declaration. Although less intrusive than the impediments on East-West trade within
the UK that must be introduced, it is still a requirement that did not
previously apply to trade between Northern Ireland and Great Britain.
There will doubtless be a desire
to minimise the level of inconvenience to economic operators, and Article 6(2)
of the Protocol commits the EU and the UK to use their best endeavours to
facilitate trade between Northern Ireland and other parts of the United
Kingdom, but some new restrictions there certainly will be. “Unfettered” is not
a legal term of art but it is a stretch to describe trade which involves such administrative
encumbrances as “unfettered”. At the very least it is plain that what the Protocol
does is to change the long-standing terms of trade between NI and GB, and to
place them on a different and more cumbersome footing than trade between England,
Scotland and Wales. The Protocol says
it is protecting the UK’s internal market. What it does is to damage it.
None of this is news to those
whose eyes and ears are open. The UK government’s own impact
assessment, published on 21 October 2019, is open about the prospect of
increases in costs as a result of an obligation to submit to processes and regulatory
checks and to complete declarations, both West-East and East-West, albeit that
it felt unable to place precise figures on the consequent costs pending detailed
policy decisions to be taken by both the UK and the EU. That is: the precise
nature and intensity of the additional burdens is not known, but the fact that
they will exist is known. This is not what Mr Gove said in March 2020. Both the
then Brexit secretary Stephen Barclay, before the House of Lords Select
Committee on the European Union on 21 October 2019, and Julian Smith, the then Secretary
of State for Northern Ireland, before the Northern Ireland Affairs Committee of
the House of Commons two days later accepted that that some new formalities
would be introduced on trade between NI and GB. That is not what Mr Johnson
said on repeated occasions. Moreover a leaked
Treasury document entitled “NI Protocol: Unfettered access to the UKIM”
revealed clearly that there was full awareness of and anxiety about how
fettered trade might turn out to be. That is not how senior members of the UK
government are now addressing the consequences of the Protocol agreed last
year.
Mr Johnson is simply denying what
he agreed. Mr Gove seems to be hoping to use the Joint Committee to re-negotiate
what was agreed.
What happens next?
If the UK does not comply with
the obligations it has agreed under the Protocol, the methods of enforcement
are far more closely aligned to those which prevail under orthodox EU law than
those associated with the dispute resolution mechanisms based on arbitration
found in the Withdrawal Agreement. Article 12 of the Protocol provides that for
the key provisions concerning trade regulation in the Protocol the Commission
retains its capacity to pursue infringement proceedings against the UK and the Court
of Justice too has the jurisdiction provided for in the Treaties, which
includes the preliminary reference procedure by which national courts ask the Court
of Justice to interpret EU law. Article 13(2) adds that “the provisions of this
Protocol referring to Union law or to concepts or provisions thereof shall in
their implementation and application be interpreted in conformity with the
relevant case law of the Court of Justice of the European Union”.
Article 4 of the Withdrawal
Agreement ensures that the domestic courts of the UK may be called on to hold
the UK government to the binding promises it has made: it declares that “The
provisions of this Agreement and the provisions of Union law made applicable by
this Agreement shall produce in respect of and in the United Kingdom the same
legal effects as those which they produce within the Union and its Member
States”, which embraces the legal principles of the direct effect and primacy
of EU law. This is imported into the UK’s domestic legal order by the European
Union (Withdrawal Agreement) Act 2020 (see discussion here).
So here the familiar features of EU law live on in the UK. This might surprise those
who imagined that blocking the role of the Court in particular and that of EU
law more generally was a UK red line in the negotiation of the Withdrawal
Agreement.
The law will doubtless take its
course, but it is the political consequences of Mr Gove and Mr Johnson’s
apparent disinclination to take seriously the Protocol which are even more pressing
and alarming. And they become more so as every day passes and the UK fails to
make the preparations necessary to meet its obligations under the Protocol,
entailing most of all the construction of border infrastructure at west-facing
ports in England, Scotland and Wales as well as at ports in Northern Ireland. Assuming
the UK government sticks to its determination not to seek an extension to the transitional
period – a militancy which may yet be subdued by the spread of the coronavirus
– those obligations become live already at the end of 2020. This is imminent
and it is urgent – yet it is not being treated as such by the most prominent
politicians in the UK government.
It has been a consistent feature
of Brexit that its principal cheerleaders appear to have only a dim
understanding of what it might realistically entail, and moreover that they
appear to assume that firm commitments made in consequence on negotiation with
the EU can be lightly cast aside when they are seen to unsettle the preferred
narrative of a Brexit crafted on British terms. But ripping up promises made with
reckless bravado during a referendum or an election campaign is very different
from treating binding legal commitments as disposable once the time to meet
them looms. There is a dismaying sense that the current Cabinet has been
assembled to exclude those such as Geoffrey Cox and Julian Smith who understood
and respected the nature of the legal obligations undertaken pursuant to the
Protocol, leaving the field clear for Mr Gove, Mr Johnson and others who
decline to accept responsibility for fulfilment of the obligations imposed by
the agreement which was concluded with the EU last Autumn. The whole point of
that deal – the key that unlocked Mrs May’s deal and allowed its replacement by
Mr Johnson’s – was that it significantly increased the legal, political and
economic significance of the Irish Sea as a frontier within the UK. That the
Protocol says things – that Northern Ireland
is in the UK’s customs territory, that it secures protection of the UK internal
market – which it does not do was doubtless politically convenient for the UK
government, and probably a matter of misleading packaging in which the EU felt
able last year to acquiesce. One wonders if the EU is now regretting not having
insisted that the Protocol more clearly says
what it does.
Photo credit: Oliver Dixon via Wikimedia
