Devolved powers and EU withdrawal: Scotching the worst impacts of Brexit?

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The modern concept of Devolution in the United Kingdom was devised, created and implemented in the general context and expectation of continued UK membership of the European Union. Scotland, Wales and Northern Ireland were all granted various levels of legislative and executive autonomy under a set of constitutional statutes of the UK Parliament (Scotland Act 1998 (SA 1998), Government of Wales Act 1998 (GOWA 1998)(now the Government of Wales Act 2006 (GOWA 2006)) and Northern Ireland Act 1998 (NIA 1998)). These laws created a certain level of asymmetry in the scope and range of powers exercisable by the nations of the United Kingdom, however they all shared one common feature - devolved legislative and executive powers could only be exercised in a way that is not incompatible with the UK's international obligations, particularly as regards the law of the European Union (Sections 29(2)(d) and 57(2) SA1998, Sections 58A and 108A(2)(e) GOWA 2006 and Sections 6(2)(d) and 24(1)(b) NIA 1998).

Background to Devolution

Scotland's devolution arrangements were always predicated upon a reserved model of devolution. Such a  system provides that the Scottish Parliament is free to legislate on any residual matter, other than those matters that are explicitly retained by the UK Parliament. The matters that are explicitly retained by the UK are set out in section 29(2) of the 1998 Act. This provides that the Scottish Parliament cannot pass laws that apply extraterritorially, relate to reserved matters, attempt to change the terms of certain Acts of the UK Parliament (including the European Communities Act 1972), are incompatible with the European Convention of Human Rights or EU law or are an attempt to remove the Lord Advocate as the head of criminal prosecutions and the investigation of deaths.

Notwithstanding the relative clarity of these terms, it has been judicially noted that there is of course some inevitable degree of overlap between the concepts (Martin v HM Advocate 2010 SLT 412, Lord Hope of Craighead at para 11 and Imperial Tobacco Ltd, Petitioner [2010] CSOH 134). Thus, the system of devolution itself sets out a detailed process for determining whether a proposed Scottish law is within or outwith the legislative competence of the Scottish Parliament. More generally, the notion of devolution presupposes that the UK Parliament, as the only sovereign Parliament for the whole of the UK, is competent to legislate in any matter, devolved or reserved (Section 28(7) SA 1998).

The Devolution settlement for Scotland and Wales, at inception, was always subject to the, admittedly theoretical, possibility that it could be simply reversed by a subsequent Act of the UK Parliament. However, both the Scotland Act 2016 and Wales Act 2017 provide for a more permanent arrangement, whereby the Scottish Parliament, Scottish Government, Welsh Assembly and Welsh Government are now treated as permanent features of the constitutional landscape of the United Kingdom (Section 63A SA 1998). This strengthening of the centrality of devolution to the fundamental tenets of the UK constitution also resulted in significant changes to the interplay between the Scottish Parliament and the UK Parliament. The Scotland Act 2016 now provides that the Sewel Convention, the constitutional convention that the UK Parliament will not normally legislate for Scotland in devolved matters without the consent of the Scottish Parliament, is now statutorily recognised (see Section 28(8) SA 1998).

In the two decades of Scottish devolution, hundreds of Sewel conventions have been granted by the Scottish Parliament.

The slim UK vote to leave the European Union on 23rd June 2016, poses significant issues and implications for Scottish devolution. The Scottish population overwhelmingly voted to remain in the EU (62%), however the UK Government is committed to leaving the EU on terms that mean the UK no longer accepts the jurisdiction of the ECJ, leaves the EU Single Market and the EU Customs Union and ends payments to the EU budget. The Scottish Government was therefore placed in an impossible position - it had to respect and defend the democratic will of the Scottish people to stay in the EU and its economic and legal structures, within the confines of the overall desire of the entire UK to leave the EU.

The Scottish Government, from the immediate aftermath of the EU Referendum, was committed to engaging with the UK Government in reaching an acceptable compromise on the detailed terms of the UK's exit from the European Union. However, it later became clear that the terms of the UK's proposed Great Repeal Bill, and thereafter the EU Withdrawal Bill, were unacceptable to the Scottish Government. As a consequence, the Scottish Government intimated that it was likely the Scottish Parliament would be minded to refuse a Legislative Consent Motion (LCM) authorising the UK Parliament to enact legislation providing for the UK's exit from the EU. Such a refusal would have limited practical legal effect, since the UK Parliament has unlimited power to legislate and in particular, the Scottish Government has no power to enforce any refusal of an LCM against the UK Parliament (Miller v S. of S. for Exiting the EU [2017] UKSC 5], discussed here). Nevertheless, the refusal would have significant political effect. 

The Scottish Parliament refused to grant the LCM and the Scottish Government then pressed ahead with plans to create its own withdrawal legislation, in order to avoid a legal vacuum in the devolved statute book after the UK's exit from the EU. The Scottish Government put forward its alternative legislative proposal, the UK Withdrawal from the European Union (Legal Continuity) Bill 2018, on the 27th of February 2018. It was presented as emergency legislation before the Scottish Parliament and as such, the UK Government was not notified of the proposal, as is the normal convention.

As the law currently stands, Acts of the Scottish Parliament, as laws of a devolved legislature, do not enjoy an automatic presumption of legality, in contradistinction to the position of Acts of the UK Parliament (Imperial Tobacco Ltd v Lord Advocate 2013 SC (UKSC) 153 as per Lord Hope of Craighead). As such, legislative proposals of the Scottish Parliament are vulnerable to being attacked as being outwith the competence of the Scottish Parliament under two main lines of attack.

Firstly, Bills of the Scottish Parliament can be attacked as being effectively unconstitutional during the four week gestation period of a bill between its approval in the Scottish Parliament and being given Royal Assent (Section 32 SA 1998). The Advocate General for Scotland, the Lord Advocate or the Attorney General are entitled to challenge the legality of a Bill of the Scottish Parliament before the Supreme Court (Section 33 SA 1998).

Secondly, actual Acts of the Scottish Parliament are similarly susceptible to attack as being outwith the legislative competence of the Scottish Parliament before the Supreme Court (Section 29 SA 1998; AXA v Lord Advocate [2011] UKSC 46). 

The UK Withdrawal from the European Union (Legal Continuity) Bill 2018 was criticised by no less a figure than the Presiding Officer of the Scottish Parliament itself. The Bill attempts to remove the limitation on legislative power set out in section 29 of the Scotland Act 1998 as regards EU law. The Bill also purports to bring EU law into the devolved statute book by creating Retained (Devolved) EU law and gives the Scottish Minsters powers to amend such law where this is necessary to make the law coherent and consistent. The Bill also attempts to require that UK Ministers do not change certain aspects of Retained EU law without the consent of the Scottish Ministers.

When the UK leaves the EU, currently scheduled as the 29th of March 2019 under the UK Parliament's EU (Withdrawal) Act 2018 (Section 20), the provisions of the Scotland Act 1998 limiting the power of the Scottish Parliament and Government to make law and perform executive functions respectively, would be rendered nugatory. However, the Presiding Officer considered that this was a step too far: the Scottish Parliament will be fully subject to the limitation set out in section 29 until Exit Day. The Attorney General and Advocate General for Scotland completely agreed with this view and accordingly utilised their right to petition the Supreme Court for a judgment on the legality of the Scottish Parliament's Continuity Bill (Reference on UK Withdrawal from the European Union (Legal Continuity) Bill 2018).

Conversely, the Lord Advocate takes the diametrically opposite view, alongside the Attorney General for Northern Ireland and the Counsel General to the Welsh Government. These three legal officers consider that the Bill was squarely within the competence of the Scottish Parliament, notwithstanding the reservations expressed by the Parliament's Presiding Officer.

The Supreme Court, in a seven judge configuration, including of course the two Scottish justices (Lord Reed and Lord Hodge) heard the case on the 24th and 25th of July 2018 and delivered its judgment on the 13th of December 2018.

The challenge is without precedent: it is the first time, in the two decades of operation of the Scottish Parliament that both the Presiding Officer has questioned the competence of a Bill passed by the Scottish Parliament and the UK Legal Officers have exercised their legal right to send a question on the competence of a Scottish Parliament Bill to the Supreme Court.

The novelty of the case has thrown up some interesting legal questions.

First, it has to be remembered that this action before the Supreme Court is unique. It is not analogous to the many legal challenges that have been taken to the Supreme Court about the legality of devolved legislation (eg AXA v Lord Advocate [2011] UKSC 46) as opposed to bills. In the AXA case, Lord Hope at p. 142, stated that;

“in principle Acts of the Scottish Parliament are amenable to the supervisory jurisdiction of the Court of Session at common law".

This judgment is authority for the proposition that Acts of the Scottish Parliament are vulnerable to challenge under the limits to Scottish Parliament law making set out in section 29 of the Scotland Act 1998 and judicial review principles of the common law. However, he then went on to qualify this statement by noting that not all of the generally available judicial review grounds of challenge would be available to challenge the provisions of a public body such as Acts made by the Scottish Parliament since the Scottish Parliament was a democratically elected body with law making and tax raising powers and as such its laws would enjoy the highest legal authority.  Thus, challenges to laws of the Scottish Parliament could not ordinarily be taken on grounds of irrationality, unreasonableness or arbitrariness. Indeed, Lord Hope stated that the common law grounds of challenge could only ever be contemplated in extreme circumstances, such as where a law purported to violate the rule of law by closing off judicial review or the courts' ability to protect an individual's rights.

Although factually and legally correct, and intensely interesting, the Lord Advocate swiftly dispensed with this line of argumentation. These options for review are only appropriate for challenges taken against laws made by the Scottish Parliament. Legislative proposals before the Scottish Parliament can only be challenged in the 4 week window of opportunity according to the exacting terms of section 33 of the Scotland Act 1998. As such, it is argued that the question before the Supreme Court is not a nuanced one akin to cases seeking annulment of laws based on rule of law conceptions such as irrationality and arbitrariness in the exercise of powers stated in that law. Rather, it was submitted by the Lord Advocate that the question was simpler and binary in nature: is the Bill within the legislative competence of the Scottish Parliament, by not encroaching upon matters properly addressed by the UK Parliament or not?

If the question is indeed binary as suggested, then the substantive question turns on the notion of international relations and EU law as international law. Again, here the question may not be as complicated as argued by the UK Law Officers. The UK Law Officers argue that the Bill is not within legislative competence since the Bill cuts across fundamental sovereign powers only exercisable by the UK Parliament, namely the exercise of international relations. Succour for this line of argumentation comes from the Miller case, whereby the Supreme Court conformed that the triggering of Article 50 TEU fell squarely within the legal power of the sovereign Parliament of the UK (Miller v S. of S. for Exiting the EU [2017] UKSC 5). However, again here there is possibly a misunderstanding of the scope and nature of the powers purportedly being exercised in the Scottish Parliament's Bill. Of course, the contested Bill is concerned with EU law and the Scotland Act clearly prohibits the Scottish Parliament from acting in the international plane or to do anything interfering with the sovereign power of the UK Government and UK Parliament to both conduct relations with (and within) the EU institutions and to change UK law, notably the European Communities Act 1972, to comply with changed EU law obligations (such as additional Treaty obligations).

However, the Scotland Act is also concerned with a completely separate, internal aspect of EU law: the Scottish Parliament and Government cannot make law or perform executive functions in violation of EU law. This provision is actually designed to protect the UK from the legal consequences of devolved institutions acting, to borrow a delictual and tortious phrase, on a frolic of their own which will impute liability upwards to the UK. This limitation on power set out in section 29 of the Scotland Act 1998 is vital and core to the very essence of the Scottish Parliament's function: an overwhelming majority of legislative activity in the Scottish Parliament is directed at complying with EU law and giving effect to EU law. At the inception of devolution at the tail end of the last century, the Scottish Parliament and Scottish Government were given power over any areas of competence not reserved to the UK Government and Parliament.  Most of these devolved powers were actually powers exercised at the EU level, on a shared basis with the member States - agriculture, fisheries, environmental protection, consumer protection etc.

Therefore, the Scottish Parliament was directly tasked with complying with EU law, but this 'internal' aspect of EU law in no way impugns the 'external' aspect of EU law, exercisable by the UK Government and Parliament. Relatedly, it has already been judicially recognised that the devolution institutions will experience a significant Brexit dividend - an entire swathe of restrictions on the competence of the devolved institutions will be completely expunged on Brexit day (see Miller). This 'internal' aspect of EU law directly concerns the Scottish Parliament and it would be nonsensical if the Scottish Parliament could not take measures to clarify the scope of how this fundamental shift in its competences is to operate.

The Lord Advocate also dispenses with the argument made by the UK Law Officers concerning the future contingency nature of the provisions of the Bill. The UK Law Officers argue that the terms of the Bill, as drafted would cause the Scottish Parliament to be in breach of its obligation not to undermine EU law as set out in section 29 of the Scotland Act 1998 by simple dint of the fact that the Scottish Parliament must comply with EU law right up to 11pm on the 29th of March 2019. The UK Law Officers set much store on the contingent nature of the power given by the Bill to the Scottish Ministers to bring into force such provisions once the Bill became law. This argument appears weak. Commencement orders are a perfectly natural feature of the UK legal landscape, both devolved and reserved. It is perfectly normal and legal for a legislature to anticipate future changes and to legislate accordingly. Further, if the said contingency never materialises, then it is simply the case that that legal power is never exercised and can be replaced or repealed.

A further objection to the proposed Bill was taken by the UK Law Officers to the effect that the Bill could not alter the terms of the Scotland Act 1998 as regards the restriction of legislative competence on the grounds of EU law compliance (section 29(2)(d) SA 1998). The Lord Advocate tersely rejected this argument as well.  The system of devolution generally provides that Acts of the Scottish Parliament can be used to modify Acts of the UK Parliament, where that UK law relates to devolved competences. This significant power is a well-established feature of the devolved landscape. Nevertheless, legally and practically there has to be limitations upon this power, otherwise the devolved Parliament would, at a stroke, have been transformed into an omnipotent, fully sovereign Parliament: An anathema to the very nature of devolution.

Thus, the Scotland Act 1998 does generally provide that an Act of the Scottish Parliament cannot be used to modify certain central tenets of the constitutional devolution framework as provided for in the Scotland Act 1998. To put it more simply, the Scottish Parliament cannot pass an Act of Parliament giving itself more power. However, the Scotland Act 1998 does allow for some modifications to take place (Schedule 4 SA 1998). For present purposes, para. 7 of Schedule 4 of the Act is central. This part of the 1998 Act provides that an Act of the Scottish Parliament can be passed to take out 'spent' provisions. The key argument facing the Supreme Court is the notion of when the references to the EU limitations on the legislative competence of the Scottish Parliament become spent. If the UK Law Officers are right, the Scottish Parliament cannot act to expunge the references to EU law limitations on Scottish Parliament competence until the UK leaves. Form the Lord Advocate's perspective this view is unduly restrictive. It binds the hands of the Scottish Parliament until Brexit Day and, given the inherent uncertainty over the exact legal implications of the UK's departure from the UK on the 29th of March 2019, the Scottish Parliament cannot act prospectively to arrange its affairs as regards Scots law (the devolved statute book) to manage and ensure an orderly, legally certain departure.

The final aspect of the case which is intriguing is brought about by the mere effluxion of time. At the time of passing the Bill in the Scottish Parliament, the UK Parliament had yet to pass its own legislative proposal for an orderly Brexit. But soon after the legal objection was made to the Scottish Bill, the UK Parliament's EU (Withdrawal) Bill received Royal Assent. This law provides for retained EU law to be created for the utility of the entire UK. However, of course, the Scottish Parliament objected to the terms of that law, refused a Legislative Consent Motion and proceeded to continue to attempt to enact its own continuity law.

A direct consequence of that fact was that the Scotland Act 1998 was then amended to add the terms of the EU (Withdrawal) Act 2018 into the list of laws in Schedule 4 that are unamendable by the Scottish Parliament. Thus, the practical result is that if the Scottish Parliament were to now try and introduce a Bill along the lines of the impugned Continuity Bill, that Bill would be clearly outwith the legislative competence of the Scottish Parliament. Thus, the Lord Advocate has craved that the Supreme Court consider the question of legislative competence as of the date of passing the Bill and not at a later date in time. If the Supreme Court were to look at the case as from a later date in time, then the reference has been of purely academic interest.

However, even if the Supreme Court looks back in time to the point of passing the Bill, the answer also becomes academic since the unamended Bill, from a practical point of view cannot be passed since it has been rendered otiose. The best the Lord Advocate can hope for now is that the Bill is characterised as being in legislative competence and that certain, now unlawful provisions of the Bill, can be expunged from it, allowing the legislative proposal (as amended) to be turned into an Act of the Scottish Parliament.

This morning’s judgment is a clear vindication of the Lord Advocate’s position. The court was unanimous that, at the point in time when the Bill was passed in the Scottish Parliament, the entire Bill was within the legislative competence of the Scottish Parliament, with the sole exception of section 17 of the Bill. However, time marched onwards such that, at the time of this judgment, some of the legal space about to be occupied by the Scottish Bill was now occupied by the law of the sovereign Parliament of the United Kingdom. As such, the court therefore qualified its decision and recognised the clear legal reality pertaining at the date of the judgment - certain provisions of the Bill were now rendered otiose and legally impermissible as a direct result of the coming into force of the terms of the UK Parliament’s EU (Withdrawal) Act 2018. Thus, it is in part a pyrrhic victory for the Lord Advocate. The Bill, as presented at the time of progressing to Royal Assent was predominantly within the legislative competence of the Scottish Parliament. However, large sections of the Bill now fall away since they are in direct conflict with the terms of the 2018 Act and are thus outwith legislative competence of the Scottish Parliament.  

In these uncertain times, it is absolutely certain that there will now be interesting conversations regularly taking place between HM Government and the Scottish Government to resolve this legal conflict.

Barnard & Peers: chapter 27

Photo credit: Daily Record

The Brexit Withdrawal Agreement: Overview and First Observations

Professor Steve Peers, University of Essex

Introduction

The recently agreed Brexit withdrawal agreement may turn out to be dead on arrival, or at some point not long after. Nevertheless, if the agreement is ratified, it is the basis on which the UK would leave the EU – unless the two sides agree to amendments to the text.

Since the agreement is both complex and legalistic, but also the subject of intense political debate, there’s a need for a summary and explanation of the text for non-lawyers. This blog post aims to do that by outlining the structure of the agreement and the main content of each part of it in turn. It does not aim to be exhaustive, but only to give a broad indication of what the agreement entails.

Throughout the blog post, I’ve scattered the answers to ‘key questions’ which have been raised about what the withdrawal agreement does. Let’s start with this one:

Key question: Does the withdrawal agreement cover the long-term relationship between the UK and EU after Brexit?

No. The withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU. On that issue, alongside the text of the agreement, there was also initially a draft outline of the political declaration on the future UK/EU relationship. This is the basis for negotiations that would take place after Brexit day. This declaration has since been finalised. Finally, there’s also a joint report on the state of negotiations to date.

This is (hopefully) the first in a series of several blog posts on the withdrawal agreement. I aim to come back to three specific issues in more detail: the ‘backstop’ relating to the Irish border; the role of the CJEU; and the future relationship. (Update, Dec 8: the blog post on the future relationship is here).

Also, for more detailed discussion on parts of the withdrawal agreement, I’ll refer to some blog posts on the March draft of the agreement – although, as I point out below, that draft has been amended on a number of issues.

Key question: What if the withdrawal agreement is not ratified?

Unless the two sides agree to amend it and then ratify the amended text, in principle the alternatives are the UK leaving the EU without any withdrawal agreement, or staying in the European Union. However, it remains to be seen if remaining by revoking the Article 50 notice of withdrawing is even legally possible: the Wightman case, now pending before the CJEU, will clarify this issue. A general election might be held, but that will not in itself change the options available. The Brexit date could be delayed, but both the UK government and the EU27 Member States (acting unanimously) would have to agree to this.

The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. The UK government has also issued its own no deal notices. Last week, the Commission published a communication explaining what it would do in the event of no deal. In particular, it would suggest unilateral EU measures to keep basic aviation services to the UK (less than current aviation service). It would not propose issuing extra lorry permits, so access to the EU by UK commercial drivers would be highly curtailed. There would be no ‘adequacy decision’ on flows of personal data from the UK to the EU, so digital services would be somewhat more complicated.

It also proposed to waive visa requirements for short-term visits by UK citizens to the EU (for 90/180 days). This will not address residence for longer periods, which will be subject to EU and national laws on non-EU citizens, which are more restrictive than EU free movement rules. (For more details of the law applicable to UK citizens visiting or staying in the EU after Brexit, see my discussion here).

Structure of the withdrawal agreement

Part One of the withdrawal agreement (Articles 1-8) sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement (Articles 9-39) deals with citizens’ rights, for those EU27 citizens in the UK, and UK citizens in the EU27, before the end of the transition period.

Part Three of the agreement sets out “separation provisions” (Articles 40-125), ie the exact details of phasing out the application of EU law in the UK at the end of the transition period.

Next, Part Four sets out the rules on the transition period (Articles 126-132), during which substantive EU law still applies to the UK for two to four years after Brexit day.

Part Five concerns the financial settlement (Articles 133-157).

Part Six sets out “Institutional and Final Provisions” (Articles 158-185). This includes rules on CJEU jurisdiction over EU27 citizens, dispute settlement, making further decisions to implement the agreement and rules on entry into force and dates of application.

In addition there are three Protocols to the agreement (these have the same legal force as the main treaty), on Irish border issues,  UK bases in Cyprus, and Gibraltar.

Part One: Common Provisions

The main legal issue in Part one is the legal effect of EU law for the UK. The agreement must have the same legal effect for the UK as EU law does for EU Member States – including the principles of direct effect (meaning that the agreement as such can be enforced in national courts) and implicitly supremacy (meaning that national law which breaches the agreement must be disapplied by national courts). The UK must also pass an Act of Parliament to give effect to the Agreement; this is above and beyond the planned ‘meaningful vote’ on the agreement in Parliament.

All references to EU law require it to be interpreted in accordance with the normal rules of EU law. As for case law of the CJEU, references to EU law must be ‘interpreted in conformity with’ CJEU case law delivered before the end of the transition period. However, the rule is different for CJEU case law after the end of the transition period: in that case, the UK courts and authorities are only required to have ‘due regard’ for the case law. Note that none of this gives jurisdiction to the CJEU as such as regards the UK (although other parts of the Treaty give the Court some jurisdiction).

References to EU law include that law as amended until the end of the transition period, while references to Member States include the UK except when they refer to having voting or representation rights on EU bodies etc.

Part Two: Citizens’ rights

This part will mostly not apply until after the end of the transition period, since free movement of people will continue during that period. In principle, it provides that EU27 citizens in the UK before the end of that period (and UK citizens who are in the EU27 before the end of that period) will retain the same rights as those who arrived before Brexit day. To that end, it requires the two sides to keep applying EU free movement legislation to the people concerned, including legislation on social security coordination and the recognition of qualifications.

Some aspects of their legal status will change, however: the UK or EU27 Member States may require them to apply to prove their right to stay on the territory. The UK in particular plans to implement this, by means of a ‘settled status’ scheme. The risk is that some people will not have the documentation to prove their right to stay. Some categories of people currently covered by EU law (such as UK citizens returning to the UK with non-EU family members, or UK children in the sole care of one non-EU parent) will not be covered by the withdrawal agreement, so their position will be up to UK law. Similarly a number of EU27 citizens who would not qualify for status because they do not meet the ‘comprehensive sickness insurance’ requirement will be covered by a unilateral waiver of this rule by the UK, not the withdrawal agreement.

Also, the rules on family reunion in EU free movement law (which are more favourable than those under national law or EU law on non-EU families) will only apply where the family relationship existed before the end of the transition period, or the family member was legally resident in the same State then. If the citizens commit a criminal offence after the end of the transition period, national rules on expulsions will apply – and they may be more stringent than EU free movement rules on this issue.

The CJEU will have jurisdiction to rule on how the rules apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf.

For further details, see my annotation of a previous version of the citizens’ rights Part of the treaty, which is only a little different from the final version.

Key question: Does the withdrawal agreement end free movement of people?

Yes, free movement ends at the end of the transition period, unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea. The ‘backstop’ relating to Northern Ireland, if it ends up applying, does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue.

Part Three: Separation provisions

This part tells out exactly how EU law ceases to apply at the end of the transition period, for a list of different issues. It was mostly agreed in March, with a few more Articles agreed in June, and the rest agreed since. The biggest difficulties were over geographical indications (ie, protection for those who call their product ‘Parma ham’) and what happens to cases pending before the CJEU on Brexit day.

Key question: Is the UK bound to EU law on geographical indications forever?

No, but it would be guaranteeing the continued protection of geographical indications for products which were protected at the end of the transition period.

More precisely, this part sets out rules for ending the application of EU law as regards thirteen issues: goods placed on the market; ongoing customs procedures; ongoing VAT and excise procedures; intellectual property protection; police and criminal law cooperation; cross-border civil litigation; personal data; public procurement; Euratom; judicial and administrative procedures; administrative cooperation; privileges and immunities; and other issues, such as the European Schools.

Key question: Does the CJEU have jurisdiction in the UK indefinitely?

No. Some have misread Article 89 of the withdrawal agreement, which refers to CJEU jurisdiction as regards cases coming from the UK, to mean that the UK will be covered by the Court’s jurisdiction forever. In fact, Article 89 simply confirms that the Court will have jurisdiction for cases sent from UK courts before the end of the transition period.

After that point, UK courts can send the CJEU cases only in limited contexts: for eight years after the transition period ends as regards EU27 citizens in the UK, or the protocols on Northern Ireland (in part) and Cyprus. Also, the Court has jurisdiction after this point to decide on how to interpret EU law if a dispute about the withdrawal agreement goes to arbitration (see Part Six).

Furthermore, the Commission can sue the UK in the CJEU for failure to implement EU law correctly for four years after the end of the transition period (though this can only concern alleged breaches which occurred before the end of the transition period as an EU Member State, or under the transition period Part of the agreement). Finally, the Commission can sue the UK to enforce State aid and competition decisions which were based on proceedings which started before the end of the transition period, but concluded afterward. 

It is possible that the future relationship will provide for continued EU/UK cooperation on some of these issues, in which case some of these separation clauses either will not come into practical effect at all, or will only apply in part. For instance, the EU and UK might end up agreeing in a new security treaty on another form of fast-track extradition instead of the European Arrest Warrant (EAW), and may therefore choose to agree different rules on transition from the EAW system to that new fast-track system.

Part Four: transition period 

This is a short part of the withdrawal agreement, yet it has the biggest effect: it keeps substantive EU law in place in the UK until the end of 2020.  It was agreed by March, except the negotiators have now added a new Article allowing for a possible extension.

The key elements of the transition period are that EU law (including new EU law) applies to the UK, except in areas covered by UK opt-outs (such as the single currency and justice and home affairs law; in the latter case, the UK retains part of its power to opt-in to new proposals on a case-by-case basis). There are special rules on external relations: for instance, the EU will notify non-EU countries that the UK should still be regarded as covered by EU free trade agreements, or other types of EU treaties between the EU and non-EU countries (the non-EU countries aren’t obliged to agree to this). The current rules on the allocation of fisheries catches can’t be changed to benefit either the EU or UK fishing fleets.

However, the UK will not be represented on any EU institutions or bodies – including on the CJEU, which will continue to have its usual jurisdiction regarding the UK during the transition period. The UK will only be consulted on new EU measures as a special exception. In one area – foreign and defence policy – the UK can refuse to apply new EU measures if it has fundamental objections to them, and the withdrawal agreement foresees an early treaty between the EU and UK that will replace the transition period rules.

For a detailed annotation of the transition period clauses – except for the extension clause which has now been added – see my earlier blog post.

Key question: Which EU laws does the transition period cover?

I’m often asked if the transition period covers a particular EU law like driving licences or aspects of the free movement of people, because readers can’t find a specific reference to that law in the withdrawal agreement. The simple answer is that the transition period covers all laws applying to the UK except a handful of exclusions, so the drafters didn’t bother with a list of those EU laws which are covered by it.

The EU laws which are not covered by the transition period are those about the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. The UK (or its devolved legislatures) can, if it chooses, unilaterally continue to let EU27 citizens vote in local elections, and EU27 countries can choose to do the same for UK citizens. Also, as noted above, EU foreign and defence policy might not fully apply to the UK for the whole of the transition period.

This brings us to the new clause on extension of the transition period. It’s possible for the Joint Committee set up by the withdrawal agreement – which works by the mutual consent of the EU and UK – to decide by July 2020 if the transition period will be extended, for a period of up to a date to be decided (reportedly that date could be the end of 2022).

In that case, the transition period rules continue to apply to the UK for that extended period, except there would have to be an ad hoc negotiation on how much the UK pays into the EU budget during the extended period.  There are also special rules on agricultural support.

Key question: Can the UK be forced to stay in the transition period indefinitely?

No – and no. First of all, any extension of the transition period has to be agreed jointly, as noted already. Secondly, any extension won’t be indefinite, since the negotiators will add a final possible date for extension when they agree the final text of the withdrawal agreement.

On the other hand, the UK might theoretically end up in the backstop relating to Northern Ireland indefinitely. Although the withdrawal agreement says that this arrangement must be temporary, unlike the transition period there is no final date to end it and the UK cannot unilaterally end it at a certain date. However, the backstop is more limited in scope than the transition period, as it concerns only some EU laws (mainly on external trade, customs, and goods regulation, plus some limited application of EU laws on labour, the environment, state aids and competition in its Annexes). In particular, the backstop does not concern the free movement of people or services, or contribution to the EU budget.

Part Five: financial settlement 

This part incorporates the earlier agreement that the UK takes part in the EU’s spending until the end of the current budget cycle (end 2020), which matches the end of the transition period (unless that period is extended). As noted above, though, if the transition period is extended, the UK and EU will negotiate a separate EU contribution to the EU budget. It also includes UK payments to the budget incurred because the EU often makes financial commitments in one year and then pays them out in later years (the system known as reste à liquider). Furthermore, it includes continued payments to ‘off-budget’ EU spending such as commitments to developing countries, until the current versions of those programmes expire. For a detailed discussion of the finances of the deal, see reports from the OBR, the National Audit Office and the Institute for Government.

Key question: Has the UK agreed to pay £39 billion in return for nothing?

No. First of all, this begs the question: the EU regards the financial settlement as money which is payable in any event regardless of any future relationship, and took the view that the future relationship could not be formally negotiated before Brexit day anyway. Even on its own terms, the argument that ‘£39 billion is paid for nothing’ is wrong, since about half of of the money relates to the UK still applying substantive EU law during the transition period (see the OBR report), during which the UK still has its current access to EU goods and services markets (and vice versa). Anyway, a free trade deal could not have been negotiated in the time available, even if that had been legally possible (again: the EU says it was not).

Part Six: Institutional and Final Provisions

First of all, as noted above (in Part Two), the CJEU will have jurisdiction to rule on how the rules on citizens’ acquired rights apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf. The two sides might agree to wind up the monitoring body at the end of the same time period.

Secondly, the CJEU will have jurisdiction, after the end of the transitional period, over the references to EU law in the financial settlement part of the agreement, in references from national courts or as regards Commission infringement actions brought against the UK.

Next, there’s a Joint Committee set up to oversee and implement the agreement. It will meet at least once a year, and there are a number of sub-committees dealing with specific issues like Northern Ireland and citizens’ rights. It can take certain decisions to add to the agreement – such as an extension of the transition period – but for all these decisions the EU and UK must both agree.

There are detailed rules on dispute settlement, providing for arguments about the agreement to go to a panel of arbitrators. However, if the arbitrators have to decide an issue of EU law when settling the dispute, they will have to ask the CJEU to give a ruling. This is unavoidable, since CJEU case law insists that the EU and its Member States cannot be bound by an interpretation of EU law other than the CJEU’s (see, for instance, CJEU Opinion 1/92).

The Northern Ireland backstop rules out the arbitration process (including the CJEU) from much of the ‘level playing field’ rules on labour law, environmental law, tax, and competition and state aids law (see below). However, the CJEU has jurisdiction over part of the backstop, as well as the Protocol on bases in Cyprus.

Key question: Does the CJEU have jurisdiction over the entire agreement?

No. The Court has its usual jurisdiction under the transition period, and following that specific jurisdiction over EU27 citizens’ rights and EU law referred to in the financial settlement, as well as the protocols on Northern Ireland (in part) and bases in Cyprus. But the arbitrators can only refer disputes over EU law to it, not disputes over the entire agreement – although a lot of the agreement does refer to EU law. Also, some key points in the backstop are outside the arbitrators’ or the CJEU’s jurisdiction.

Note that this part of the agreement differs a lot from the dispute settlement clauses as the Commission proposed them in March (see discussion here) – which included powers (tilted toward the EU) for both sides to impose sanctions on each other. The final version looks a lot more like traditional international dispute settlement, and is presumably a concession by the EU to the UK.

Finally, the last provisions of the main withdrawal agreement set out ‘boilerplate’ rules: confirming that the three Protocols and nine Annexes are binding; setting out the authentic languages of the text and the depositary; and setting the date of entry in force (30 March 2019). The withdrawal agreement applies from that date, except the parts on citizens’ rights, separation provisions, dispute settlement and the three Protocols mostly apply from the end of the transition period (with specified exceptions which apply immediately). There’s also a commitment to negotiate on the future relationship, referring to the separate joint declaration on that issue, ‘with a view to’ agreeing those texts by the end of the transition period ‘to the extent possible’.

Protocol on Irish border issues

The Northern Ireland Protocol starts with three new Articles compared to the March draft, on UK territorial integrity and emphasising that the Protocol is meant to be temporary. Also there’s a link back to the possible extension of the transition period mentioned above (Part Four). A new review clause was added, but both sides would have to agree to disapply the protocol partly or wholly.

As for the substance of the Protocol, it refers to equality rights and the common travel area between the UK and Ireland, as already agreed (these issues were never controversial).

Key question: Does the common travel area continue the free movement of people between the UK and EU?

No. The absence of border checks makes it impossible to refuse entry to people at the border with Ireland, but that does not mean any EU27 citizens crossing that border (besides Irish citizens) have the right to reside or work in the UK (and vice versa for people crossing into Ireland, besides UK and EU citizens). There is UK legislation on liability for employers, landlords et al who hire or do business with people who are not authorised to work or reside that will be relevant here.

Then there’s the UK-wide customs union backstop, part of which is specific to Northern Ireland. There are a number of elements of this. This part of the Protocol links to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which means some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

However, this falls short of the obligations of EU Member States; there are limited obligations to keep up with new EU legislation and CJEU case law; and as noted above (Part Six), the arbitration rules (including CJEU jurisdiction) mostly do not apply to this ‘level playing field’. There’s a lot of EU law that wouldn’t apply to the UK – most notably the free movement of persons, services and capital, and contributions to the EU budget. So while the backstop would still commit the UK to a chunk of EU law on trade in goods, and in a limited way to some law in the ‘level playing field’ areas, the continued application of EU law would be much less than under the rules on the transition period.

The Protocol also contains provisions on the UK internal market, as well lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, agriculture and the environment, a single electricity market,  and state aids. There’s also a vague reference to other North/South cooperation. Finally, the institutional provisions of the Protocol provide that EU bodies, including the CJEU, have competence to apply or interpret the provisions of the Protocol that are specific to Northern Ireland.

Protocol on UK bases in Cyprus

This Protocol confirms that the bases in Cyprus remain within EU customs territory after Brexit, and EU regulations on goods, including agricultural and fisheries laws, still apply. EU law on excise taxes and VAT also continues to apply. Goods supplied to the staff on the bases are exempt from customs and taxes, and the UK and Cyprus may agree further rules on social security coordination. There are rules on checks at the border of the bases area, and a general obligation to cooperate to prevent fraud. Finally, the EU institutions, including the CJEU, have competence to apply and interpret EU law referred to in the Protocol.

Protocol on Gibraltar

First of all, this Protocol provides for the UK and Spain to cooperate on workers’ rights as regards the Spain/Gibraltar crossing. Next, it retains the status quo on access to aviation, unless the Joint Committee decides differently. It also contains general provisions on cooperation on tax and fraud, environmental protection and fishing, and police cooperation.

Assessment

The desirability of the withdrawal agreement can only be assessed in light of the alternative options available. Whether it’s possible to end the Brexit process at all by revoking the notification under Article 50 remains to be clarified by the CJEU, as noted above. If that’s not possible, Brexit could be averted only by extending the period of negotiations under Article 50 in order to amend the Treaties to permit revocation of the withdrawal notice, but that is a stretch.

Amendment of the text of the withdrawal agreement is technically possible, but the EU has signalled that it would not be willing to consider any significant amendment to the text. Holding a general election obviously appeals to anyone who wants a change of government in any event, but does not change the fundamental issues relating to the withdrawal agreement or the Brexit process as such.

Objecting to the withdrawal agreement because of objections to the separate future relationship declaration makes little sense. The EU always took the view that it would not and could not negotiate the future relationship formally before Brexit day, and there would anyway not have been enough time to negotiate a full future relationship in two years (unless the UK decided to stay in the EEA as an off-the-shelf model, which would still have required some separate issues to be negotiated). Furthermore, since the future relationship declaration is not binding, the nature of that future relationship is still all to play for.

The options as regards the withdrawal agreement are therefore to support it, to overturn the Brexit process (if that turns out to be legally possible), or to leave the EU without a withdrawal agreement, and therefore without a trade agreement. Each of these three options may individually lack a majority in Parliament, but the no deal option – although it probably commands the least support – is the default if one of the two other options does not command a majority. A no deal outcome – damaging UK exports to their largest market, leaving the position of UK citizens in the EU27 and EU citizens in the UK less secure, disrupting the UK security relationship with the EU, significantly limiting flights and commercial lorry transport with the EU, and raising barriers to transfers of data from the EU to the UK – is manifestly not in the UK’s interest, and no responsible politician should support it. The choice is therefore between the withdrawal agreement or reversing the Brexit process (if possible) as a means to avoid this end.

For supporters of Brexit, the withdrawal agreement may be a disappointment, applying substantive EU law to the UK for the transition period and potentially a proportion of EU law to the UK via the backstop after that. From this perspective, it’s unfortunate that the possibility of staying in the EEA – giving the UK a judge on the EFTA Court and consultation rights on EU proposals, limiting the effect of EU law in the UK, and possibly reducing the scope of EU law applicable to the UK at an earlier point – wasn’t explored from the outset as at least a partial substitute for the transition period.

However, given that new Member States have a transition period of several years when they join the EU (as the UK did when it joined the previous EEC) and usually gear up alignment with EU law for several years before joining, it was unrealistic to imagine ending the UK’s application of substantive EU law would happen all in one go. The withdrawal agreement recognises the unavoidable complexity of the process, phasing out membership via different stages while still offering options for a future relationship – subject to the need to avoid checks on the Irish border.

Whichever of these two routes is ultimately chosen – managed withdrawal or reconsidered reversal – it’s important to find a way of avoiding the worst-case scenario of a no deal Brexit: the project of greedy capitalists, seedy jingoists, tweedy fantasists and needy narcissists.

Barnard & Peers: chapter 27

Photo credit: BBC

Our peace is worth more than your Brexit: A Personal Reflection on the Good Friday Agreement

Sarah Kay, human rights lawyer

In the spring of 1998, I was a sulky, resentful young teenager. I had grown up in a tiny one-story house with my grandmother and my incoming, outgoing band of cousins. My grandfather, active in the Republican movement, had passed a few years before. I was very fortunate to be able to travel to the continent during the summer, where my parents had custody of me. It was a door to the outside world very few in West Belfast had access to. Our world was small, confined by walls, stuck between few prospects of upward mobility and a perpetual cycle of conflict. Sometimes, during bank holidays we would cross the border, a much more difficult endeavour than it is now, to see relatives in north Dublin.

What transpired on 10 April 1998 took years in the making, building on the failures of what would have become the 1993 Downing Street Agreement. Others recalled the historical negotiations before. This twentieth anniversary however will not unfold the way we expected it to then, or ten years ago. The Brexit referendum of 2016 placed the Northern Irish situation in peril, forcing the bulk of the negotiations - at least on the EU side - on the customs union the Prime Minister vowed to leave. A quick look at the Good Friday Agreement turns it into three words that Brexiteers should fear: it is the ultimate challenge to the divorce they intend to seal, firstly because of its legal status, and secondly thanks to the protections it affords.

The Good Friday Agreement and international human rights law obligations

The Good Friday Agreement is a multilateral agreement with the outstanding qualification that it was ratified by a referendum of mutual consent, meaning that voters across the border – in the Republic of Ireland and in the North of Ireland – had to agree to its terms for those to be enforced. It places a specific emphasis on the respect of the European Convention on Human Rights (ECHR) and the Bill of Rights of Northern Ireland from both legislative and judicial processes; it requires that cross-community consultation and cultural equality be paramount in the future of Northern Ireland.

In 2017, ​an impact assessment paper was commissioned for the European Parliament​ on what Brexit would mean for the devolved region that had been too solemn to be as vocal as Scotland, and too unstable to even maintain its own executive representation. Since the late Martin McGuinness resigned as deputy First Minister, Northern Ireland has been without an Assembly, and under threat of London voting its budget under the principle of Direct Rule. Brexit has stoked fear that London would regain sole authority of this portion of the island, leaving behind the segment of the population that identifies as Irish or both Irish and British. The Good Friday Agreement provides for the unique situation of letting residents choose the sovereignty under which they are governed, or keep simultaneous identities.

Under such provisions both the United Kingdom and the Republic of Ireland are co-guarantors of the enforcement of the Good Friday Agreement. They demand, among other things, that relations with the Republic and with the European Union not be strained by any political action that would not be reached by the aforementioned mutual consent. Brexit, by all accounts, is a breach of the Good Friday Agreement itself.

It however does not require nor demand continuous EU membership: t​he decision of the High Court in Belfast with regards to the triggering of Article 50​ underlined that the GFA mentions Northern Ireland’s status as part of the UK or the event of reunification with the Republic. According to the EuroParl paper, this assumption of continued EU membership in Strand Two is crucial for the Good Friday Agreement to be preserved. There is no alternative to the joint membership of the co-guarantors unless the GFA itself is revised. This is a risk many are unwilling to take. The rights outlined in Strand Two may appear harmless enough to the untrained eye, but they are present after years of negotiations over the freedom of political thought, the freedom from sectarian harassment and the right to freely choose one’s place of residence.

Recently, the institute for Ireland released a graphic explaining how tall the Belfast’s most infamous “peace line” - the separation wall on Cupar Way – is compared with the Berlin Wall and the Palestine Wall. Our architecture of conflict is slightly sanded off the edges by an agreement that does not force anyone to live on a given side of any wall. For children like me, for whom the sun rarely rose on one side, this is change at its most effective.

I once wrote, at the time of the Brexit referendum, about the Irish border being a fault line in the minds of the GFA generation and those coming before it. My phone still capitalizes it as if it was the only demarcation line still standing (“the Border”). What separates it from our commonly shared idea of what constitutes the line separating one nation from another is that it is, very much, physically inexistent. This fluidity has also been facilitated across the years by harmonisation between EU services, namely trade, regulation, but mostly just one element: the passing of time.

Over physical structures, such as checkpoints, grew grass. Over terrains belonging to customs authorities sprang country roads; the ground was returned to farmers or house owners. A considerable portion of the local residents are cross-border commuters, meaning they lived in the north and worked in the south, or vice-versa, allowing freedom of movement within the custom union to provide for the change in currency. Annex Two, Strand Two of the GFA does not address the border; the word appears ten times in the whole of the document, in relation to cross-border community relations. This is where much of it lies: the divide, once physical and technical, legal as political, was allowed to be sanded off, for the improvement of community relations and the fluidity of identity. It requires however that provisions be made for support of commuting workers, that entitlement and services be distributed the same.

A return to a physical border would endanger those rights, presumably granted with the view that relations will only improve over time and politics would cover “the island of Ireland”, as is noted in the document, as opposed to two very distinct elements, one a state, the other region, floating into space in weather forecast, separated and perhaps not even equal.

The Good Friday Agreement and its role in Northern Ireland’s political existence

Some have been callous and craven enough to claim that the Good Friday Agreement was a failure, that the peace process in Northern Ireland had not been successful and needed revision,  self-governance had collapsed and Direct Rule could be a bridge to a future. ​In an excellent piece for the Huffington Post​, Durham Law scholar Dr. Alan Greene explained that the multilateral agreement was not meant to be thorough or comprehensive enough to see Northern Ireland through the complex successive stages of political transition from conflict. The document is a template that outlines safeguards and necessities of implementation on which the future of Northern Ireland can be built.

For us in Belfast, Derry, Ballymena, and everywhere along County Donegal, it’s a reality for which we had committed in 1998 to vote in favour of the text. Some voted against, including the DUP. They did not recognize the equal footing of communities that the GFA demanded, and would not look into a future in which shared power would be drafted. This is one of the reasons why the Tory-DUP deal asked by Theresa May following her poor performance in 2017’s General Election caused much distress in this particular devolved region: it signaled an alliance with a party that was ready to place sectarianism ahead of governance and violence ahead of stability.  20 years ago, the DUP was the only large party to oppose the GFA.

In 2018, Northern Ireland finds itself without an executive to represent its voices during one of the largest transition periods of British history, an exit from the European Union it helped build. The English press is discussing its border as if it was a strict technical issue and was not linked to the provisions in the text that allow for the coexistence of previously conflicting identities. No one is asking my generation, people aged 30 and older, what its memories of approaching the fault line are, or what the difference power-sharing made. However incomplete the Good Friday Agreement is, it is a foundation without which the conflict could have never subsided. It is placing the interest of both and increasingly varied communities above sectarian politics, under the umbrella of two nations that simultaneously accessed EU membership based on a legally binding agreement a conflict had to be resolved.

The conclusion is thus: no possible risk that should be taken. For many outside critics of a “hard Brexit”, the situation in Northern Ireland belongs to a bygone era - that of my childhood - one that has been solved and has the unfortunate legacy of difficult and opaque litigation in local courts. It is a conflict that, for most, has been out of sight and out of mind. But the gaps and blanks of the Good Friday Agreement are opportunities to solidify the institutions that have preserved at least a semblance of equity and approached governance with integrity and peacekeeping.

While EU membership is often perceived by bleeding heart lawyers such as myself as a guarantor of peace and stability, examples abound to the contrary. Transnational and supranational lawmaking does not come easy to a continent based on former empires. It is the downfall of one of those colonial powers that exists in Northern Ireland and that makes 20 years of relative quiet a very fragile structure. Brexit gambles with so much: security, trade, movement, and human rights. The latter are still a battlefield in Northern Ireland. Why should we give up our achievement in the name of a process still undefined?

Barnard & Peers: chapter 27

Photo credit: the author, West Belfast, aged 5

The Return of the Border? Analysis of the Irish border provisions in the Brexit withdrawal agreement

Professor Steve Peers, University of Essex

The most controversial provisions in the recently proposed draft of the Brexit withdrawal agreement were those relating to the Irish border. They are tucked away at the end in a separate protocol, but they were soon found and criticised as an EU attempt to “annex” the Northern Ireland economy as a means to ensure no border checks were applied on the land border between the UK and Ireland. Conversely, they were defended by those who argue that the Leave campaign during the referendum, and the UK government since, have promised no border controls, and that the Commission’s proposal only elaborates upon what the UK government promised in the joint report of December (discussed here). 

It seems hard to reconcile the UK government’s competing simultaneous objectives of avoiding border checks on the Irish border, diverging from EU product standards, and eschewing checks on trade between Northern Ireland and the rest of the UK. At present, it seems possible that the talks on the whole withdrawal agreement will founder on this issue – damaging the intention of avoiding a hard border as well as the many other valuable objectives of that agreement. 

In this post, I’ll first summarise and critique the UK’s preferred plans and then the Commission’s proposed text in the withdrawal agreement on this issue, proposing constructive solutions in annexes to this blog post – which also annotate the proposed Protocol on Irish border issues in detail. This builds on earlier proposals I made on the border issues; and note I’ve also annotated the text of the withdrawal agreement on the issue of a transition period (or implementation period). 

UK plans

The key issue with UK plans is the promise to avoid a hard border with Ireland – made by the Leave campaign during the referendum and upheld by the UK government since. Some have argued that the border issue has nothing to do with the Good Friday agreement or the EU, but this is missing the wood for the trees twice over: first because those issues are all linked in the broader political context, and secondly because the UK has made commitments on them as part of the Article 50 process. 

The key commitment is this, from the December joint report:

43. The United Kingdom’s withdrawal from the European Union presents a significant and unique challenge in relation to the island of Ireland. The United Kingdom recalls its commitment to protecting the operation of the 1998 Agreement, including its subsequent implementation agreements and arrangements, and to the effective operation of each of the institutions and bodies established under them. The United Kingdom also recalls its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls.

There are three options to this end, as agreed in paragraph 49 of the same report: 

…The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, 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.

The Commission’s withdrawal agreement fleshes out the “full alignment” option, but not the other two options, in the absence of any detailed proposals from the UK as to how either of the other options could work. Their method of doing this is objectionable, as I explain below; but the UK would certainly make its case easier if it made some proposals on this issue. As the Prime Minister quite rightly said last week, in her Mansion House speech on Brexit policy:

…it is not good enough to say, ‘We won’t introduce a hard border; if the EU forces Ireland to do it, that’s down to them’. We chose to leave; we have a responsibility to help find a solution.

There’s a technical problem addressing the UK’s preferred options in the withdrawal agreement, since they depend upon negotiations that would likely take place after Brexit day. But the intention is for the withdrawal agreement to refer forward to the future relationship (even if the Commission’s text doesn’t reflect that), in accordance with the wording of Article 50. So I’ve suggested some text that would be part of a protocol on the future relationship, distilled from the Prime Minister’s recent speech.

Are those options technically feasible? Supporters often refer to a study for the European Parliament study on the issue. (See also the UK government paper on a customs relationship after Brexit, and the broader discussion in this CapX blogpost). But the blogpost admits that “if the EU insists the December text must be interpreted to preclude, for example, bonded warehouses anywhere near the border, or cameras on roads leading to the frontier, then a technological solution looks impossible”; and the suggested solution in the study for the European Parliament refers to technology which refers to “opening the gate automatically”. Needless to say, a gate is physical infrastructure; and you’ll have to go a looong way back from the Irish border to find an area that voted to Leave the EU.  

Some point to the EU’s customs cooperation treaties with non-EU states; but they facilitate border checks, rather than remove them completely. For instance the EEA treaty protocol on border checks with Norway refers to “frontier posts” and “express lanes”. So does the EU/Swiss customs cooperation treaty. It’s argued that the US/Canada border is a model, but that also entails facilitated border checks.

In light of all this, and for reasons discussed below, I’m leaving it to others to suggest the details of the technical solutions that they envisage might be possible for the border issue.  

Commission proposals

As a starting point, let’s examine the contention that the Commission’s proposals on the Irish border do no more than spell out what the UK agreed to in the December joint report. The key points of what the UK agreed to were this:

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, 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.

50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market.

Comparing this text to the Commission’s proposal, the proposal does not merely reflect what the UK agreed to. The UK did not agree to “full alignment” with EU law as the main rule, with the other two options as subsidiary. It did not agree to a text which treats Northern Ireland as distinct from the rest of the UK: para 50 says exactly the opposite. It did not even agree that the “full alignment” option would appear in the withdrawal agreement. As for the content of that option, while some continued link with substantive EU law is unavoidable, the UK did not agree to apply that law as such, or to continued ECJ jurisdiction, or to continued powers for EU bodies, or to joint customs controls with EU officials in Northern Ireland.

While the UK has failed to present any text at all, the Commission has failed to explain the text it proposed. None of its approaches to enforcement of the Protocol appear in the EU’s customs union with Turkey, and so the obvious question is why they need to apply here. Some of its specific proposals (continuing to apply data protection law, or state aids law) have no obvious explanation.

Therefore, in the proposed new text (Annex 1) and my annotation of the proposed Protocol (Annex 2) I suggest amendments that would a) ensure the territorial integrity of the UK, and its internal market, on equal footing with the Good Friday Agreement and the principle of consent; b) restore the “full alignment” option to its agreed position as the third priority, with text in a “future relationship” protocol about the two other options; and c) remove the many excessive and disproportionate elements in the details of the Commission’s “full alignment” proposal.

Conclusions

Some supporters of the Commission’s proposals have argued that its strong defence of the EU27 position is only to be expected. In general terms, this is correct, and is equally true of countries around the world: Brexiters are surely the only people left on the planet who believe that Trump’s intentions when negotiating a trade deal with the UK will be in any way altruistic.  

In the Northern Ireland context, however, it is problematic. A solution to decades of conflict there was not the result of the two communities pushing forward their positions as strongly as possible, but of the willingness of each of them to try and find accommodation with the other’s concerns.  The Good Friday agreement was a solution that satisfied the broad spectrum of the nationalist community, but also the concerns and interests of the majority of the unionist community too.  It would never have been feasible or legitimate without the consent of both.

From that perspective, therefore, the Commission’s proposals obviously fail, with their inversion of the agreed options, lack of recognition of concerns about territorial integrity, and unjustified power-grabs concerning the implementation of the proposal immediately aggravating the unionist side. The drafters of the Protocol seem unable to conceive of the UK as a non-Member State of the EU. Perhaps it’s worth remembering that in the new Black Panther movie, the “revenge imperialist” was the bad guy.

But while the Commission’s drafters need to exorcise their inner Killmonger, many UK pundits need to exorcise their inner Cromwell. Endless insults directed at Ireland, and cod analyses of Irish politics (there’s a special place for the instant experts in Irish politics who call the Taoiseach the “Irish Prime Minister”) have only backfired. “Let’s take back control – of Ireland!” is not a serious argument. As well as the Irish government, the nationalist community in Northern Ireland has genuine concerns too; and we’re in danger of forgetting sometimes that a majority in Northern Ireland voted Remain. If, as we’re sometimes told, the UK-wide Leave vote of 52% was “overwhelming”, what the hell do we call the 56% Remain vote in Northern Ireland?

The weird suggestions about Ireland solving the problem by leaving the EU need to stop (to avoid a border, they would anyway entail Ireland also joining a customs and economic union with the UK: please do read Fintan O’Toole’s analysis of the politics and historical context of “Irexit”). As I noted in the previous post, the notion of Ireland leaving the EU – against the views of 88% of voters – seems about as likely as the ghost of Eamon de Valera leading the next Orange order parade. Let me add that the notion of Ireland rejoining the UK is about as likely as de Valera being joined there by Michael Collins – as his same-sex partner.

So what should the UK suggest as a reasonable compromise, from its side? I haven’t suggested any more detailed text for a customs cooperation treaty, or a technical plan to ensure remote control of the border, because I can’t. I am not a specialist on customs law or customs operations. Indeed, I suspect that most of those saying that such a plan would be incredibly simple – or simply incredible – are not specialists in those fields either. The difference is that I am prepared to admit it.

So this is, quite literally, the most I can do to suggest constructive solutions to the border problem which other people have created. And what have those other people done? First they said there was no problem. Then they said it was the fault of the Commission. Or Remainers. Or the Good Friday Agreement. Or Ireland. Or the UK government.

It’s never them; for the people who actually want Brexit rarely accept that they have any responsibility for it. In the decades they fumed about the UK’s EU membership, in the nine months before the Article 50 notice was sent, and in the year since, all they’ve come up with is a study for the European Parliament, a 14-page government paper, and some blogposts. Now they need either: a) to engage with the criticism of their plans and amend them to find a workable way forward; or b) to accept the fallback solution, and to negotiate a reasonable variation on the Commission’s excessive suggestions; or c) to admit they lied through their teeth and contemplate whether they still have a mandate. 

In short, it’s time they either put a text out – or shut the feck up.

Barnard & Peers: chapter 27
Photo: Business Insider UK

Annex 1

Suggested new text in the main Withdrawal Agreement

Article 165A

Framework for future relationship

This Agreement takes full account of the agreed framework for the future relationship between the United Kingdom and the European Union, in accordance with Protocol [x].

Article 166A

Ireland and Northern Ireland

1. The Protocol on Ireland and Northern Ireland sets out specific provisions on the rights of individuals, the movement of persons, and border checks and economic cooperation.

2. Nothing in that Protocol or the remainder of this Agreement shall affect the national identity or territorial integrity of the United Kingdom or Ireland, or the Good Friday or Belfast Agreement of 10 April 1998, including that Agreement’s provisions regarding the constitutional status of Northern Ireland and the principle of consent.

Comment: this suggested text would be a legal guarantee to reassure those concerned that the proposals are an attempt to “annex” Northern Ireland or create an economic division within the UK.  The reference to “national identity or territorial integrity” reflects in part the wording of Article 4 TEU, and the other references are adapted from the preamble to the proposed Protocol.

Suggested text on customs in a new Protocol on the framework of the future UK/EU relationship

Annex – Protocol on the framework for the future relationship between the European Union and the United Kingdom

Section x

Customs

In accordance with Article 2b of the Protocol on Ireland and Northern Ireland, the arrangements to be negotiated as soon as possible after the exit day will comprise either:

a)      a customs partnership between the UK and the EU, in which, at the border, the UK would mirror the EU’s requirements for imports from the rest of the world, applying the same tariffs and the same rules of origin as the EU for those goods arriving in the UK and intended for the EU, removing the need for customs processes at the UK-EU border. This would include a mechanism to ensure that the UK would apply its own tariffs and trade policy for goods intended for the UK market, and set out the modalities to ensure that both sides can trust the system, comprising a robust enforcement mechanism; or

b)      a highly streamlined customs arrangement, comprising joint implementation of a range of measures to minimise frictions to trade, together with specific provisions for Northern Ireland.

This would comprise general measures, as follows:

i) measures to ensure the requirements for moving goods across borders are as simple as possible, by waiving the requirement for entry and exit declarations for goods moving between the UK and the EU, and allowing goods moving between the UK and the rest of the world to travel through the EU without paying EU duties and vice versa;

ii) measures to reduce the risk of delays at ports and airports, including recognising each other’s “trusted traders” schemes and drawing on the most advanced IT solutions so that vehicles do not need to stop at the border;

iii) continued cooperation to mitigate customs duty and security risks;

iv) measures to reduce the cost and burden of complying with customs administrative requirements, including by maximising the use of automation.

It would also comprise specific measures for Northern Ireland, as follows:

i)                    exemption of micro, small and medium sized businesses;

ii)                   a trusted trader scheme, as well as other streamlined processes, for larger traders;

iii)                 a mechanism for alignment of relevant UK and EU regulatory standards.

Annex 2

The following is the text of the Protocol on Ireland and Northern Ireland as proposed by the Commission. My comments are in italics; suggested amendments are in italics and underlined. I have not commented on the preamble.

Protocol on Ireland/Northern Ireland

The Union and the United Kingdom,

HAVING REGARD to the historic ties and enduring nature of the bilateral relationship between Ireland and the United Kingdom; 

RECALLING that the United Kingdom's withdrawal from the Union presents a significant and unique challenge to the island of Ireland, and reaffirming that the achievements, benefits and commitments of the peace process will remain of paramount importance to peace, stability and reconciliation there;

RECOGNISING that it is necessary to address the unique circumstances on the island of Ireland in order to ensure the orderly withdrawal of the United Kingdom from the Union;

AFFIRMING that the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom, the Government of Ireland and the other participants in the multi-party negotiations (the "1998 Agreement"), which is annexed to the British-Irish Agreement of the same date (the "British-Irish Agreement"), including its subsequent implementation agreements and arrangements, should be protected in all its parts;

RECALLING the commitment of the United Kingdom to protect North-South cooperation and its guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls, and bearing in mind that any future arrangements must be compatible with these overarching requirements;

RECALLING that the Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union of 8 December 2017 outlines three different scenarios for protecting North-South cooperation and avoiding a hard border;

HIGHLIGHTING that discussions on the other scenarios may continue to be pursued in parallel, but that this Protocol is based on the third scenario of maintaining full alignment with those rules of the Union's 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, and that it applies unless and until an alternative arrangement implementing another scenario is agreed;

RECOGNISING that cooperation between Northern Ireland and Ireland is a central part of the 1998 Agreement and is essential for achieving reconciliation and the normalisation of relationships on the island of Ireland, and recalling the roles, functions and safeguards of the Northern Ireland Executive, the Northern Ireland Assembly, and the North-South Ministerial Council (including cross-community provisions), as set out in the 1998 Agreement;

ACKNOWLEDGING that this cooperation across the full range of political, economic, societal and agricultural contexts relies to a significant extent on common Union legal and policy frameworks, as confirmed in the joint mapping exercise conducted by the Union and the United Kingdom, and that accordingly the United Kingdom's withdrawal from the Union gives rise to substantial challenges to the maintenance and development of North-South cooperation; 

MINDFUL that the rights and obligations of Ireland under the rules of the Union's internal market and customs union must be fully respected;

RECALLING the commitment of the United Kingdom to protecting and supporting continued NorthSouth and East-West cooperation across the full range of political, economic, security, societal and agricultural contexts and frameworks of cooperation, including the continued operation of the North-South Implementation Bodies;

AIMING to support current and future common policies and approaches between Ireland and Northern Ireland in accordance with the 1998 Agreement;

RECOGNISING the need to respect the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent;

DESIRING to create a common regulatory area on the island of Ireland in order to safeguard NorthSouth cooperation, the all-island economy, and protect the 1998 Agreement;

HAVING REGARD to the devolution arrangements between the United Kingdom and Northern Ireland in relation to the common regulatory area; 

RECOGNISING that Irish citizens in Northern Ireland, by virtue of their Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this Protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship as defined in Annex 2 of the British-Irish Agreement "Declaration on the Provisions of Paragraph (vi) of Article 1 in Relation to Citizenship"; 

NOTING that Union law has provided a supporting framework to the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement;

UNDERLINING that part or all of this Protocol may cease to apply should a future agreement between the Union and the United Kingdom be agreed which addresses the unique circumstances on the island of Ireland, including by avoiding a hard border and protecting the 1998 Agreement in all its dimensions;

HAVE AGREED UPON the following provisions, which shall be annexed to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ("Withdrawal Agreement"):

Chapter I

Rights of individuals

Article 1

Rights of individuals

1. The United Kingdom shall ensure that no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms. 

2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland.

Comments: This text is based on paragraph 53 of the Joint Report, which also noted that “EU law and practice has provided a supporting framework” for such rules “in Northern Ireland and across the island of Ireland”. Paragraph 1 adds the obligation to “implement this paragraph through dedicated mechanisms.” The Annex referred to has not yet been filled in, but it is likely to include Directive 2000/78, which prohibits discrimination on grounds of religion in employment. The specific names of the bodies listed in paragraph 2 have been added, as compared to the Joint Report.

Chapter II

Movement of persons

Article 2

Common Travel Area

1. The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (the "Common Travel Area"), while fully respecting the rights of natural persons conferred by Union law.

2. The United Kingdom shall ensure that the Common Travel Area and associated rights and privileges can continue to operate without affecting the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens and their family members, irrespective of their nationality, to, from and within Ireland. 

Comments: this text is based on paragraph 54 of the December joint report, with the clarification that it applies also to non-EU family members and the words “to, from and within Ireland”.

[Proposed new Chapter IIa

Border checks and economic cooperation

Comments: The text proposed by the Commission for Chapter III of the Protocol does not respect the wording and structure of paragraph 49 of the joint report, which refers to the future UK/EU relationship and technical solutions as priority options for ensuring no hard border and North-South cooperation. The following text would more closely reflect what the UK and the EU27 agreed at that point.

Article 2a

Absence of border checks

The United Kingdom and the European Union shall refrain from installing any physical infrastructure or related checks and controls at the border between Northern Ireland and the Republic of Ireland.

Comments: This gives effect to the “no hard borders” part of paragraph 43 of the Joint Report. Unlike the Joint Report, it does not refer only to the UK’s obligations.

Article 2b

Ensuring absence of border checks and North-South cooperation

1. At the latest by the end of the [transition] [implementation] period, the obligation in Article 2a shall be ensured by a [customs cooperation] [customs union] agreement to be negotiated before that date between the United Kingdom and the European Union in accordance with the principles in [section x of protocol x], which shall include any provisions necessary to ensure the absence of physical infrastructure or related checks and controls at the border and the protection of North-South cooperation on the island of Ireland.

Comments: This gives effect to the first option in paragraph 49: “The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship”. The first set of square brackets reflect the UK government and EU27’s different description of the period after Brexit Day. The second set of square brackets offers an alternative wording reflecting the current UK’s government’s position and a potential future Labour government position respectively. It may be possible to agree a customs treaty before the main trade agreement between the EU and the UK, so the text reflects this.

The withdrawal agreement could also include a joint declaration, as follows:

In order to give effect to Article 2b(1) of the Protocol on Ireland and Northern Ireland, the parties agree to enter into formal negotiations as soon as possible after the exit date on the basis of the draft [customs cooperation] [customs union] agreement proposed by the United Kingdom, which shall give effect to the principles in [section x of protocol x],.

This would give concrete effect to the first option in paragraph 49 of the Joint Report. It presupposes that the UK tables a draft treaty as soon as possible in 2018. The options in square brackets offer alternative wording reflecting the current UK’s government’s position and a potential future Labour government position respectively.

2. In the event that the agreement referred to in paragraph 1 is not concluded, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland, and the parties will negotiate in good faith on that basis to ensure the absence of physical infrastructure or related checks and controls at the border and the protection of North-South cooperation on the island of Ireland by the end of the [transition] [implementation] period.

Comments: Reflects the second option in paragraph 49.

3. In the absence of agreement pursuant to paragraphs 1 or 2 by the end of the [transition] [implementation] period, Chapter III of this Protocol will apply.

Comments: This reflects the third option in paragraph 49. Another option (as suggested in my previous blog post) is to defer this discussion until after Brexit Day, on the grounds that it: a) is premature in the absence of discussions of the other options; and b) increases the risk that no withdrawal agreement can be concluded, putting at risk the intention to avoid a hard border as well as all the other objectives of the agreement. 

4. Each party will establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU Internal Market [and the Customs Union].

Comments: Based on paragraph 51 of the Joint Report. The precise intention of that paragraph is not clear. The words in square brackets would be removed in the event of a Labour government.

Chapter III

Common regulatory area

Article 3

Establishment of a common regulatory area

A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established. The common regulatory area 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. 

Comment: the second sentence is apparently adapted from the wording of Article 26(2) TFEU: “The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.” However, it should be noted that the proposed commitments relate only to EU law on the free movement of goods, not other aspects of the single market. Without any direct reference to the EU Treaty clause, the obligation to follow the relevant case law in Article 12(2) of this protocol will presumably not apply.

The assumption behind the text is that a very extensive link with EU law on free movement of goods is required in order to satisfy the commitment in para 49 of the joint report 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”. This assumption is not, however, explained.

The wording of the text seems to contemplate a separation between Northern Ireland and the rest of the UK. This contradicts para 50 of the joint report, which stated that “the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market.”

Suggested amendment: a new paragraph could make clear that this chapter, if it is applied, does not necessarily separate Northern Ireland from the rest of the UK in economic terms: “2. Nothing in this chapter requires the United Kingdom to develop new regulatory barriers between Northern Ireland and the rest of the United Kingdom, or to fetter the access of Northern Ireland products to the whole of the United Kingdom internal market. In the event that this Chapter is applied, the United Kingdom, in agreement with the Northern Ireland Executive and Assembly consistently with the 1998 Agreement, shall decide on whether its territorial scope is limited to Northern Ireland or applicable to the entire territory of the United Kingdom.” The suggested wording gives effect to para 50 of the December joint report.

Article 4

Free movement of goods

1. The provisions of Union law on goods listed in Annex 2.1 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland.

Comment: the Annex is blank so far.

2. Customs legislation as defined in point (2) of Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council as well as other provisions of Union law providing for customs controls of specific goods or for specific purposes listed in Annex 3 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland. The territory of Northern Ireland, excluding the territorial waters of the United Kingdom (the "territory of Northern Ireland"), shall be considered to be part of the customs territory of the Union.

Comment: Article 5(2) of the Regulation referred to (which is the EU customs code) defines “customs legislation” as the following: “the Code and the provisions supplementing or implementing it adopted at Union or national level”; “the Common Customs Tariff”; “the legislation setting up a Union system of reliefs from customs duty”; and “international agreements containing customs provisions, insofar as they are applicable in the Union”. The mechanics of applying this provision at international level (ie ensuring that non-EU countries also accept that Northern Ireland is part of EU customs territory) are not spelled out. Note that Article 4 of the Code defines the EU “customs territory” as including not only the current Member States (with some exceptions, such as Greenland), but also Monaco and the UK bases in Cyprus.

3. Customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Union and the United Kingdom in respect of Northern Ireland. This prohibition shall also apply to customs duties of a fiscal nature. 

Comment: this is apparently an adaptation of Article 30 TFEU, which provides that “Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.” However, there is no cross-reference to that provision. Without any direct reference to the EU Treaty clause, the obligation to follow the relevant case law in Article 12(2) of this protocol will presumably not apply.

4. Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between the Union and the United Kingdom in respect of Northern Ireland.                                                       

Comment: this is apparently an adaptation of Article 34 and 35 TFEU, which provide respectively  that “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States” and “Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States”. However, there is no cross-reference to those provisions. Without any direct reference to the EU Treaty clause, the obligation to follow the relevant case law in Article 12(2) of this protocol will presumably not apply.

5. The Union and the United Kingdom in respect of Northern Ireland shall not impose, directly or indirectly, on the products of the other party any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, the Union and the United Kingdom in respect of Northern Ireland shall not impose on the products of the other party any internal taxation of such a nature as to afford indirect protection to other products. 

Comment: this is apparently an adaptation of Article 110 TFEU, which provides: “No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.” Without any direct reference to the EU Treaty clause, the obligation to follow the relevant case law in Article 12(2) of this protocol will presumably not apply.

This wording is also very similar to Article III:2 GATT, which will apply to the UK and the EU even in the absence of a trade agreement.

6. Paragraph 4 shall be without prejudice to the possibility for the United Kingdom, a Member State or the Union to take measures to prohibit or restrict the making available on its market of a good, or a category of goods, where and to the extent permitted by Union law. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Union and Northern Ireland. 

Comment: the last sentence in this provision is apparently copied from Article 36 TFEU, concerning exceptions to the free movement of goods, which provides:

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

The reference to ‘Union law’ here could cover the rest of Article 36, secondary EU law and the case law of the Court of Justice. Arguably the obligation to follow the relevant case law in Article 12(2) of this protocol will therefore apply, but it is unfortunate that the cross-reference is not more precise. If the intention is to refer to the EU legislation which will be included in the annexes, that should be made explicit.

7. For the purposes of the customs legislation and the provisions of Union law listed in Annex 2.2 to this Protocol, the United Kingdom customs authorities competent for the territory of Northern Ireland shall be considered as customs authorities within the meaning of point (1) of Article 5 of Regulation (EU) No 952/2013. By way of derogation from Section 7 of Chapter 2 of Title I of Regulation (EU) No 952/2013, customs controls as defined in point (3) of Article 5 of that Regulation shall be carried out jointly by the Union and the United Kingdom customs authorities competent for the territory of Northern Ireland. The Union and the United Kingdom shall determine the practical arrangements for carrying out such controls in accordance with paragraph 10.

Comment: The annex is blank. Article 5(1) of the customs code defines "customs authorities" as:

“the customs administrations of the Member States responsible for applying the customs legislation and any other authorities empowered under national law to apply certain customs legislation”.

Article 5(3) of the Code defines "customs controls" as:

“specific acts performed by the customs authorities in order to ensure compliance with the customs legislation and other legislation governing the entry, exit, transit, movement, storage and end-use of goods moved between the customs territory of the Union and countries or territories outside that territory, and the presence and movement within the customs territory of the Union of non-Union goods and goods placed under the end-use procedure”

The customs code rules which would be derogated from (Articles 46-50 of the code) concern control of goods. There seems no convincing reason why “full alignment” with the relevant substantive rules should also entail joint carrying out of controls on goods. While the EU has a legitimate interest in ensuring that checks are being properly carried out in the UK, given that they would not be checked at the border, this could be ensured by means of administrative assistance (for instance, see the EU/Swiss customs cooperation treaty, Article 18) and perhaps occasional spot-checks.

This provision has a distinct “annexation” tone; the Commission might want to inquire why neither the UK nor Ireland agreed to cross-border pursuit by police officers when they signed up to the Schengen police cooperation rules.

Suggested amendments for the second and sentences:  “The Union and the United Kingdom customs authorities competent for the territory of Northern Ireland shall cooperate closely when carrying out customs controls as defined in point (3) of Article 5 of that Regulation. The Union and the United Kingdom shall determine the practical arrangements for such cooperation in accordance with paragraph 10.”

8. The provisions of Union law on value added tax listed in Annex 2.3 to this Protocol concerning goods shall apply to and in the United Kingdom in respect of Northern Ireland.

Comment: This provision is blank. It is not known if the Commission thinks that the entirety of EU VAT law should apply, or just the provisions relating to goods crossing borders, which would seem more directly relevant to border checks issues.  

9. The provisions of Union law on excise duties listed in Annex 2.4 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland. 

Comment: This provision is blank. Again, it is not known if the Commission thinks that the entirety of EU excise tax law should apply, or just the provisions relating to goods crossing borders, which would seem more directly relevant to border checks issues.

10. Specific arrangements for the proper implementation of this Article shall be determined by the Joint Committee, upon proposal from the Specialised Committee. Those specific arrangements may, as appropriate, include a mechanism for revenue collection and distribution.

Comment: the allocation of revenue could well be a contentious issue. The fairest way forward would be to base it on reliable estimates of the percentage of goods entering Northern Ireland ports which are destined for Ireland. Note that the objectionable Article 4(7) makes a cross-reference to this paragraph. 

Article 5

Agriculture and fisheries

1. The provisions of Union law on sanitary and phytosanitary rules listed in Annex 2.5 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland.

Comment: the Annex is blank. It seems likely, however, that ultimately it will include reference to legislation that would disappoint those who dream of bringing chlorinated chicken to British dinner tables.

2. The provisions of Union law on the production and marketing of agricultural and fisheries products listed in Annex 2.6 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland.

Comment: the Annex is blank. It is not clear if it will refer to all legislation concerning the Common Agricultural Policy, or only some of it. As for fisheries, there is no reason why the EU fisheries policy rules on catches should apply, given that Article 4(2) of the Protocol defines the customs territory concerned as “excluding the territorial waters of the United Kingdom”.

Article 6

Single electricity market

The provisions of Union law governing wholesale electricity markets listed in Annex 2.7 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland.

Comment: the Annex is blank. It is not clear if it will refer to all legislation concerning the internal market in electricity. The Prime Minister’s Mansion House speech expressed an interest in maintaining links in this area.

Article 7

Environment

The provisions of Union law for environmental protection concerning the control of the import into, export out of, release into, or transport within the Union of substances or material, or plant or animal species, listed in Annex 2.8 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland. 

Comment: the Annex is blank. Presumably it will not refer to all EU environmental law, since that legislation goes beyond the issue of the import, export and transit of plant or animal species, to include issues like air pollution.

Article 8

Other areas of North-South cooperation

1. Consistent with the arrangements set out in Articles 4 to 7 of this Protocol, and in full respect of Union law, this Protocol shall be implemented and applied so as to maintain the necessary conditions for continued North-South cooperation, including in the areas of environment, health, agriculture, transport, education and tourism, as well as energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport. In full respect of Union law, the United Kingdom and Ireland may continue to make new arrangements building on the provisions of the 1998 Agreement in other areas of North-South cooperation on the island of Ireland.

2. The Joint Committee shall keep under constant review the extent to which the implementation and application of this Protocol maintains the necessary conditions for North-South cooperation. The Joint Committee may, including on recommendation from the Specialised Committee, make appropriate recommendations to the Union and the United Kingdom in this respect.  

Comment: this Article lists 14 general areas of North-South cooperation. However, it does not lay down any concrete legal obligation in relation to any of them. Nor is the Joint Committee given powers to adopt additional binding measures in these fields in para 2.

Article 9

State aid

The provisions of Union law on aids granted by States listed in Annex 2.9 to this Protocol shall apply to the United Kingdom in respect of Northern Ireland. For the purposes of those provisions, "in respect of Northern Ireland" means that only measures that affect trade between the territory of Northern Ireland and the Union shall be considered as aid within the meaning of Article 107(1) TFEU. 

Comment: the Annex is blank, so it remains to be seen whether it includes all EU state aids law. State aids rules are not enforced by means of border checks, but presumably the logic is that this is linked to North-South cooperation. While the current UK government has no real objections to making commitments on state aids (see this analysis of the Mansion House speech on this issue), a Labour government would seek clarifications or exceptions.

Chapter IV

Institutional provisions

Article 10

Specialised Committee

1. The Specialised Committee on issues related to the island of Ireland established by Article 158 of the Withdrawal Agreement ("Specialised Committee") shall be composed of representatives from the Union and the United Kingdom.

2. The Specialised Committee shall 

(a) facilitate the implementation and application of this Protocol;

(b) examine proposals from the North-South Ministerial Council, and North-South Implementation bodies set up under the 1998 Agreement concerning the implementation and application of this Protocol;

(c) discuss any point of relevance to this Protocol giving rise to a difficulty and raised by the Union or the United Kingdom;

(d) make recommendations to the Joint Committee as regards the functioning of this Protocol.

Comment: the powers of the Joint Committee are set out in Article 157 of the main agreement and, as regards Ireland/Northern Ireland issues, in Articles 4 and 8 of this protocol.

Article 11

Supervision and enforcement

1. As regards Chapter III, the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom, and natural and legal persons residing or established in the territory of the United Kingdom, have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties in this respect.

2. Acts of the institutions, bodies, offices, and agencies adopted in accordance with paragraph 1 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.

Comments: At the very least, this clause should be amended to provide that it applies “In the event that Chapter III becomes applicable…” given that, as agreed, this chapter is a fallback option. It should be noted that the UK government wishes to remain linked to some EU bodies as regards the UK as a whole, so it seems presumptuous to assume at this point that no such arrangements will be agreed.  

More broadly it is questionable why EU bodies and the Court of Justice need such extensive powers, given that the EU and Turkey agreed a customs union without equivalent provisions. There is anyway provision for the Court of Justice to rule in the event that a dispute cannot be settled pursuant to the dispute settlement process in Article 162 of the main agreement, and the Commission has not suggested why this is insufficient. (Article 12 of the Protocol means that Article 162 of the main agreement applies to the protocol too).

Suggested amendment: Replace entire Article with:

1. Specific arrangements for the implementation, administration and enforcement of this Chapter shall be determined by the Joint Committee, upon proposal from the Specialised Committee. Those specific arrangements may, as appropriate, provide that the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom, and natural and legal persons residing or established in the territory of the United Kingdom, have the powers conferred upon them by Union law. In that event, acts of those institutions, bodies, offices, and agencies 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.

2. By way of derogation from paragraph 1, the Court of Justice of the European Union shall have jurisdiction as provided for in the provisions of this agreement referred to in Article 12(1)(c) of this Protocol.

Chapter V

General and final provisions

Article 12

Common provisions

1. The following provisions of the Withdrawal Agreement shall apply to this Protocol:

(a)  Article 2, the first subparagraph of Article 4(1) and Article 4(2) and (3), Article 5(2) and (3) and Article 6;

(b) Articles 100 and 104, Article 105(1), Articles 111, 115, 116 and 117 in respect of activities of the Union pursuant to this Protocol;

(c) Part Six, without prejudice to Article 11 of this Protocol.

 For the purposes of this Protocol, any reference to the United Kingdom in those provisions of the Withdrawal Agreement shall be read as referring to the United Kingdom or the United Kingdom in respect of Northern Ireland, as the case may be.

Comments: Point (a) refers to: the definitions (Article 2 of the main agreement); the legal effect of EU law in the UK (Article 4(1), first subparagraph), but implicitly not direct effect or supremacy ((Article 4(1), second subparagraph); the obligation to implement by primary legislation (Article 4(2)); cross-references to EU law (Article 4(3)), but implicitly not ECJ case law (Article 4(4) and (5)), which is the subject of Article 12(2) of this protocol; some of the rules on cross-references to EU law (Article 5(2) and (3)), but not all (Article 5(1) is omitted, but see instead Article 12(3) of this protocol); and references to Member States (Article 6; but note Article 12(4) of this protocol, discussed just below).

Point (b) refers to official communications (Article 100), privileges and immunities (Articles 104 and 111), official secrecy (Article 115), discretion (Article 116) and access to documents (Article 117).

Point (c) refers to the final and institutional provisions, including dispute settlement. Note that in accordance with Article 168, this Protocol only applies from the end of the transition/implementation period.

2. The provisions of this Protocol referring to Union law or 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.

This replaces the distinction in Article 4(4) and (5) between ECJ case law handed down before and after the end of the transition/implementation period. (The former binds the UK as such; the latter need only be taken into account). However, there is no convincing reason to drop this distinction for this Protocol, since the dispute settlement mechanism in Article 162, with its more limited role for the ECJ, can be applied to settle disputes about divergent implementation that may arise.

3. Where this Protocol makes reference to a Union act, and where that act is amended or replaced after the entry into force of the Withdrawal Agreement, the reference to that act shall be read as referring to it as amended or replaced.

The Joint Committee shall periodically revise the relevant references in this Protocol upon proposal from the Specialised Committee set up under this Protocol.

Comment: this is a more far-reaching rule than Article 5(1) of the main agreement, which only applies the obligation to “keep up to date” with amended EU law until the end of the transition/implementation period. It may be questioned whether such a strict requirement need be applied, or whether a more flexible process of discussion about new standards and equivalence similar to the EU/Swiss veterinary standards rules (Articles 12-14 in Annex 11 to the EU/Swiss agricultural trade agreement) could apply.

4. By way of derogation from point (a) of paragraph 1 of this Article and from Article 6 of the Withdrawal Agreement, representatives or experts of the United Kingdom or experts designated by the United Kingdom may, upon invitation and on an case-by-case basis, exceptionally attend meetings or parts of meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council, of Commission expert groups, of other similar entities, or of bodies, offices or agencies where and when representatives or experts of the Member States or experts designated by Member States take part, provided that one the following conditions is fulfilled:

(a) the discussion concerns individual acts to be addressed during the period of application of this Protocol to the United Kingdom or to natural or legal persons residing or established in the United Kingdom;

(b)  the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of Union law made applicable by this Protocol.

During such meetings or parts of meetings, the representatives or experts of the United Kingdom or experts designated by it shall have no voting rights and their presence shall be limited to the specific agenda items that fulfil the conditions set out in point (a) or (b).

Comments: This clause is taken from Article 123(5) of the main agreement, concerning the UK’s role during the transition/implementation period. It’s excessive in that context, yet far more excessive here, given that the Protocol will apply indefinitely.

Suggested amendment: By way of derogation from point (a) of paragraph 1 of this Article and from Article 6 of the Withdrawal Agreement, representatives or experts of the United Kingdom, or experts designated by the United Kingdom, may attend, without voting rights, meetings or parts of meetings of the Council, of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011, of Commission expert groups, of other similar entities, or of bodies, offices or agencies, where and when the subject matter of such meetings is Union law within the scope of this Protocol.

5. Authorities of the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisation procedures provided for in Union law made applicable by this Protocol.

Comment: this copies Article 123(6) of the Agreement, which applies to the transition/implementation period. Since these provisions apply indefinitely, and the UK has an interest in involvement of many EU agencies, this provision is excessive. A better approach is to provide for decisions to be adopted pursuant to Article 11 to replace this rule.

Suggested amendment: “Unless otherwise provided in Joint Committee decisions adopted pursuant to Article 11, authorities of the United Kingdom…”

6. The provisions of Union law on the protection of personal data referred to in Article 66 of the Withdrawal Agreement shall apply in respect of personal data processed in the United Kingdom on the basis of this Protocol.

Comment: Article 66 of the main agreement refers to the General Data Protection Regulation, the Directive on law enforcement use of data, the e-privacy Directive, and “any other provisions of Union law governing the protection of personal data.” It is not clear why the Commission believes this clause is necessary; data protection law is not enforced by means of border checks and there is no explanation as to why this law would be linked to North/South cooperation. The limitation of scope “on the basis of this Protocol” is very unclear. If the intention is to refer to the implementation of substantive obligations in the Protocol, such as (for instance) the exchange of data on customs operations, this should be more clearly specified. 

Note that Article 67 of the main agreement otherwise phases out the application of EU data protection law in the UK as of the end of the transition/implementation period, although the UK government’s policy is to seek continued close alignment with EU law, by means of an adequacy decision and links between the UK and EU data protection authorities.

7. Articles 346 and 347 TFEU shall apply to this Protocol as regards measures taken by a Member State or by the United Kingdom in respect of Northern Ireland.

Comment: These articles set out exemptions from EU law as regards internal security, national security, international relations and arms control. There is no reference to Article 348 TFEU, which sets out a special process in case these exemptions are invoked. In this context it should be noted that the ECJ has previously interpreted these provisions (then Articles 223 and 234 EEC) narrowly, when ruling on whether a ban on women in the Northern Ireland police was in breach of EU law (Johnston v RUC). In accordance with Article 12(2) of this Protocol, this case law will still be relevant.

Article 13

Safeguards

1.  If the application of this Protocol leads to serious economic, societal or environmental difficulties liable to persist, the Union or the United Kingdom may unilaterally take appropriate measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.

2.  If a safeguard measure taken by the Union or the United Kingdom, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the United Kingdom, as the case may be, may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this Protocol.                                                          

3. Safeguard and rebalancing measures taken in accordance with paragraphs 1 and 2 shall be governed by the procedures and dispute settlement arrangements set out in Annex 3 to this Protocol.

Comment: This text is effectively identical to the safeguards clause in Articles 112 and 114 of the EEA treaty, which extends the EU’s single market law (and certain other EU laws) to Norway, Iceland and Liechtenstein. Those EEA treaty provisions refer to a consultation and dispute settlement mechanism in Article 113 of that treaty; it remains to be seen whether Annex 3 to this Protocol sets up the same system, since it is not filled in yet.

Article 14

Protection of financial interests

The Union and the United Kingdom shall counter fraud and any other illegal activities affecting the financial interests of the Union or of the United Kingdom in respect of Northern Ireland.

Comment: Compared to the arguably excessive provisions of the rest of the Protocol, conversely this clause is arguably insufficient. It resembles Article 325 TFEU, which starts: “The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article…”, but that provision is more detailed and is also a basis for legislation. Furthermore, ECJ case law also gives that Treaty article some legal effects of its own (most recently clarified in the Taricco II judgment, discussed here).  In light of the perceived risk that customs fraud issues may increase in the Irish border context after Brexit, it would be appropriate to agree some additional rules to ensure that illegal activities within the scope of the Protocol are dealt with, perhaps following the example of the EU/Swiss treaty on combating fraud.

Article 15

Subsequent agreement

Should a subsequent agreement between the Union and the United Kingdom which allows addressing the unique circumstances on the island of Ireland, avoiding a hard border and protecting the 1998 Agreement in all its dimensions, become applicable after the entry into force of the Withdrawal Agreement, this Protocol shall not apply or shall cease to apply, as the case may be, in whole or in part, from the date of entry into force of such subsequent agreement and in accordance with that agreement. 

Comments: this Article should be deleted as it does not reflect the agreement in the December joint report. See the proposed Article 2b above.

Article 16

Annexes

Annexes 1 to 3 shall form an integral part of this Protocol.

 Annexes

Annex 1 in relation to protection against discrimination

Annex 2 in relation to the common regulatory area for ensuring the free movement of goods and protecting North-South cooperation

Annex 2.1 in relation to free movement of goods

Annex 2.2 in relation to customs controls of specific goods or for specific purposes

Annex 2.3 in relation to value added tax

Annex 2.4 in relation to excise duties

Annex 2.5 in relation to sanitary and phytosanitary rules

Annex 2.6 in relation to production and marketing of agricultural and fisheries products

Annex 2.7 in relation to wholesale electricity markets

Annex 2.8 in relation to environmental protection concerning the control of the import into, release into, or transport within the Union of substances or material, or plant or animal species

Annex 2.9 in relation to State aid

Annex 3 in relation to procedures and dispute settlement arrangements applicable to safeguard and rebalancing measure