Tuesday 17 March 2020

The Protocol on Ireland/ Northern Ireland: What it says is not what it does

Professor Stephen Weatherill, Somerville College and Law Faculty, Oxford University

Political misdirection

On Wednesday 11 March 2020, at a meeting of the Future Relationship with the European Union Committee of the House of Commons, the following exchange took place:

Hilary Benn: “On goods moving from GB to Northern Ireland under the Northern Irish Protocol, we know there are some regulatory checks at the moment …  there will be additional checks once the Northern Ireland Protocol is implemented won’t there?”.

Michael Gove: “That’ll be a matter for the Joint Committee”.

No it won’t. No it isn’t. There will be additional checks. Mr Gove is wrong.

He’s not alone. Failing to grasp what are the UK’s legal obligations under the Protocol seems contagious. Interviewed on SKY television on 2 February 2020 Dominic Raab claimed that the imposition of extra checks would be “directly in conflict” with the agreements reached with the EU. He is wrong. He could not be more wrong: the absence of extra checks would be directly in conflict with those agreements. Brandon Lewis, who took over as Secretary of State for Northern Ireland in February 2020, also moved quickly to insist there would be no border down the Irish Sea. He is wrong too, unless the UK plans to violate its international obligations.

But Mr Gove and his colleagues were following a well-trodden trail of misdescription. The Prime Minister has been even more blatantly wrong, and repeatedly so. Interviewed on SKY television in December 2019, shortly before the General Election, he said:

“… there’s no question of there being checks on goods going NI/GB or GB/NI … We’re a UK government, why would we put checks on goods going from NI to GB or GB to NI? It doesn’t make sense.”

On the campaign trail in November Mr Johnson had encouraged exporters to Great Britain from Northern Ireland who were confronted by forms to throw them in the bin: he insisted there would be no checks. He did not change his tune once he had banked victory in the December General Election. In the House of Commons on 22 January 2020 Jeffrey Donaldson of the DUP welcomed the PM’s “assurance that there will continue to be unfettered access for Northern Ireland businesses to the UK single market”, but asked whether that commitment also applies “to goods moving from Great Britain to Northern Ireland?”. “Emphatically it does”, replied Mr Johnson.

Emphatically it does not, as is clear from an understanding of the Protocol.

The purpose of the Protocol

The Protocol on Ireland/ Northern Ireland attached to the Withdrawal Agreement is driven by the perception that, as its Preamble affirms, “the United Kingdom's withdrawal from the Union presents a significant and unique challenge to the island of Ireland” and “that the achievements, benefits and commitments of the peace process will remain of paramount importance to peace, stability and reconciliation there”. Its most high-profile concrete aim is to guarantee avoidance of “a hard border, including any physical infrastructure or related checks and controls” at the frontier between Ireland and Northern Ireland, as the Preamble to the Protocol has it. So the current physically invisible state of the political border on the island of Ireland should not change at all as a result of the UK’s withdrawal from the EU. This matters to the economy, this matters to the preservation of peace.

And, since the checks required at the external frontiers of the EU must occur somewhere, the aim of ensuring that they do not occur at the border between Ireland and Northern Ireland is achieved by ensuring that they shall occur elsewhere, at the border between Great Britain and Northern Ireland. There will be a hardened border within the UK. The Protocol is carefully written: it avoids saying this. But that is what it does. It is what Mr Johnson accepted in abandoning Mrs May’s deal which would not have placed any new restrictions between Northern Ireland and GB but which would have accepted UK-EU regulatory alignment and a single UK-EU customs territory. Mr Johnson’s oven-ready election-winning deal reduced the scope of regulatory alignment to NI-EU alone in order to unleash GB’s regulatory autonomy both domestically and in external trade policy. This inevitably entails new restrictions on trade in goods between Northern Ireland and GB as a result of the absence of regulatory alignment between GB and the EU.

Mr Gove and Mr Johnson and other members of the Cabinet are denying what they have already accepted.

The content and duration of the Protocol

Let us be clear what the Protocol requires – or, put another way, what the UK has already committed to in the legally binding Withdrawal Agreement.

The Protocol locks Northern Ireland (but not the wider UK, i.e. not Great Britain) into regulatory alignment with a weighty body of EU rules governing manufactured and agricultural goods. The detail is found in Annex 2 to the Protocol: 287 EU legislative instruments are listed, all of which are to be applied in Northern Ireland, in order to ensure it is sufficiently aligned to the EU’s internal market acquis for the EU to be prepared to treat the Northern Ireland - Ireland border as soft in the same way that borders found internally within the EU are soft. That NI-EU alignment is extended by the Protocol also to cover key trade rules including those concerning the EU’s customs regime, VAT and excise rules, those governing the single electricity market and state aid rules in respect of measures which affect the trade between Northern Ireland and the EU which is subject to the Protocol.

The Protocol applies after the expiry of the transitional period. That is currently set for the end of 2020, and although the Withdrawal Agreement allows for a one-time extension of up to two years, the UK government has pledged not to seek such extension. (The Coronavirus may change that attitude, but it will not change the content of the Protocol). The Protocol is terminable by a subsequent EU-UK agreement which shall indicate the parts of the Protocol which it supersedes (Article 13(8) Protocol) but for such an agreement to remove the need for the Protocol in its entirety would require the type of comprehensive UK-EU regulatory alignment which is exactly the opposite of what Brexit is intended to achieve, according to the speech delivered by the UK’s lead negotiator David Frost recently in Brussels, though one should not forget that a rather different tale was told by cherry-picking Brexiters back in 2016. The parts of the Protocol which concern trade rules can be set aside according the procedure foreseen by the Protocol’s Article 18, “Democratic Consent in Northern Ireland’, whereby alignment may be brought to an end by decision of the Northern Ireland Assembly according to a managed timetable set out therein. Since this would bring back into play the hard border on the island of Ireland that the Protocol is designed to prevent any such decision seems for the time being improbable. So the likelihood is that the Protocol is here to stay for some time to come. Its true meaning has long-term importance.

But what is its true meaning? The Protocol is not an easy read. The Protocol is not intended to be an easy read. It is an exercise in studied deception. But the key to understanding it is not to look at what it says, but instead to look at what it does.

To which customs territory does Northern Ireland belong?

The Protocol says that Northern Ireland is part of the customs territory of the United Kingdom (Article 4). And this is backed up by Article 5(1) which provides that no customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport unless that good is at risk of subsequently being moved into the Union, whether by itself or forming part of another good following processing. So – it seems – the norm is no duties on GB to NI trade, while the exception – where the good is at risk of onward movement to the EU – is payment of duties.

But what the Protocol does in its Article 5(2) is to reverse the presumption expressed in Article 5(1). A good brought into Northern Ireland from GB is considered to be at risk of subsequently being moved into the Union unless it is established that that good will not be subject to commercial processing in NI and fulfils criteria to be established in due course by the Joint Committee. The shaping of the governing criteria by the Joint Committee will plainly be important but the key point right now is that goods are deemed to be at risk of onward movement and so attract an obligation to pay duties – unless it is shown they are not. The burden is on the trader to show that the relatively tightly drawn exception for goods only destined for Northern Ireland and not for processing applies. Article 5(6) grants the UK a power to reimburse duties levied on goods pursuant to the provisions of EU law made applicable by the Protocol – but that assumes that payment has already been made and in any event any such reimbursement must comply with the EU’s state aid rules contained in Article 10 of the Protocol.

The starting point, then, is that duties are payable. So what the Protocol does is not to treat Northern Ireland as part of the customs territory of the UK. That point is strengthened when one understands that, notwithstanding its calculatedly evasive language, what the Protocol does in its Article 5(3) is to lock Northern Ireland into the entirety of the EU’s Customs Code, the Common Customs Tariff, legislation setting up a Union system of relief from customs duty, and international agreements containing customs provisions in so far as they are applicable in the EU (subject only to a reservation to the Joint Committee of the job of establishing the conditions applicable to certain fishery and aquaculture products) and via its Article 5(4) also a number of other customs-related measures, among them the EU’s trade defence instruments covering inter alia anti-dumping and anti-subsidy measures.

So the Protocol says that Northern Ireland is part of the customs territory of the United Kingdom (Article 4) but that is not what it does. De facto Northern Ireland is part of the EU’s customs territory.

Does the Protocol secure unfettered trade within the UK’s internal market?

The Protocol says that it is dedicated to the protection of the UK internal market (Article 6) and that nothing shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market (Article 6(1)).

But that is not what it does. The UK’s existing internal market is not protected, because what the Protocol does is to require that new barriers be introduced to regulate trade between GB and NI (in both directions, but especially east to west). Some will be required to implement the new customs regime, mentioned above, but others, likely far more significant, will be required to address the point that after the expiry of the transitional period (probably at the end of 2020, pace coronavirus) the GB part of the UK is no longer locked into the “ecosystem” of binding rules and institutional and constitutional disciplines which make up the EU internal market for goods. The point is that given the absence of commitment to persisting regulatory alignment between the EU and GB, the risk arises that goods originating in GB or imported into it from a third country will be routed through Northern Ireland and over the soft border into the EU’s internal market without any payment of tariffs or checks for compliance with EU rules, thereby harming the integrity of the EU’s customs union and internal market. Therefore compliance with EU rules on matters covered by the Protocol such as product composition, safety, technical standards and sanitary and phytosanitary requirements will need to be checked, because GB will no longer be bound by these rules. The Protocol does not say exactly how these checks shall occur, nor exactly how intense they shall be: it is in principle for the UK to implement and apply the EU rules made applicable by the Protocol to the United Kingdom in respect of Northern Ireland, subject to the proviso that EU representatives have the right to be present during any such activities pertaining to implementation and application (Article 12). But it is clear that what the Protocol does is to require that there shall be such checks.

So Article 6(1) of the Protocol’s claim that nothing shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market (presumably deliberately) misses the point that it is GB to NI – east to west – trade which is the main problem. It will not be unfettered. There will be customs and other regulatory checks on goods exported from Great Britain to Northern Ireland. But Article 6(1) is not even true on its own limited terms. West to east trade within the UK is affected too. What the Protocol does – via, once again, evasive language buried in Article 6 - is to require that the normal formalities applicable to goods leaving the EU’s customs territory shall apply to goods leaving NI for GB. Pursuant to Regulation 952/2013 on the EU Customs Code that means the completion of an exit declaration. Although less intrusive than the impediments on East-West trade within the UK that must be introduced, it is still a requirement that did not previously apply to trade between Northern Ireland and Great Britain.

There will doubtless be a desire to minimise the level of inconvenience to economic operators, and Article 6(2) of the Protocol commits the EU and the UK to use their best endeavours to facilitate trade between Northern Ireland and other parts of the United Kingdom, but some new restrictions there certainly will be. “Unfettered” is not a legal term of art but it is a stretch to describe trade which involves such administrative encumbrances as “unfettered”. At the very least it is plain that what the Protocol does is to change the long-standing terms of trade between NI and GB, and to place them on a different and more cumbersome footing than trade between England, Scotland and Wales. The Protocol says it is protecting the UK’s internal market. What it does is to damage it.

None of this is news to those whose eyes and ears are open. The UK government’s own impact assessment, published on 21 October 2019, is open about the prospect of increases in costs as a result of an obligation to submit to processes and regulatory checks and to complete declarations, both West-East and East-West, albeit that it felt unable to place precise figures on the consequent costs pending detailed policy decisions to be taken by both the UK and the EU. That is: the precise nature and intensity of the additional burdens is not known, but the fact that they will exist is known. This is not what Mr Gove said in March 2020. Both the then Brexit secretary Stephen Barclay, before the House of Lords Select Committee on the European Union on 21 October 2019, and Julian Smith, the then Secretary of State for Northern Ireland, before the Northern Ireland Affairs Committee of the House of Commons two days later accepted that that some new formalities would be introduced on trade between NI and GB. That is not what Mr Johnson said on repeated occasions.  Moreover a leaked Treasury document entitled “NI Protocol: Unfettered access to the UKIM” revealed clearly that there was full awareness of and anxiety about how fettered trade might turn out to be. That is not how senior members of the UK government are now addressing the consequences of the Protocol agreed last year.

Mr Johnson is simply denying what he agreed. Mr Gove seems to be hoping to use the Joint Committee to re-negotiate what was agreed.

What happens next?

If the UK does not comply with the obligations it has agreed under the Protocol, the methods of enforcement are far more closely aligned to those which prevail under orthodox EU law than those associated with the dispute resolution mechanisms based on arbitration found in the Withdrawal Agreement. Article 12 of the Protocol provides that for the key provisions concerning trade regulation in the Protocol the Commission retains its capacity to pursue infringement proceedings against the UK and the Court of Justice too has the jurisdiction provided for in the Treaties, which includes the preliminary reference procedure by which national courts ask the Court of Justice to interpret EU law. Article 13(2) adds that “the provisions of this Protocol referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union”.

Article 4 of the Withdrawal Agreement ensures that the domestic courts of the UK may be called on to hold the UK government to the binding promises it has made: it declares that “The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States”, which embraces the legal principles of the direct effect and primacy of EU law. This is imported into the UK’s domestic legal order by the European Union (Withdrawal Agreement) Act 2020 (see discussion here). So here the familiar features of EU law live on in the UK. This might surprise those who imagined that blocking the role of the Court in particular and that of EU law more generally was a UK red line in the negotiation of the Withdrawal Agreement.

The law will doubtless take its course, but it is the political consequences of Mr Gove and Mr Johnson’s apparent disinclination to take seriously the Protocol which are even more pressing and alarming. And they become more so as every day passes and the UK fails to make the preparations necessary to meet its obligations under the Protocol, entailing most of all the construction of border infrastructure at west-facing ports in England, Scotland and Wales as well as at ports in Northern Ireland. Assuming the UK government sticks to its determination not to seek an extension to the transitional period – a militancy which may yet be subdued by the spread of the coronavirus – those obligations become live already at the end of 2020. This is imminent and it is urgent – yet it is not being treated as such by the most prominent politicians in the UK government.

It has been a consistent feature of Brexit that its principal cheerleaders appear to have only a dim understanding of what it might realistically entail, and moreover that they appear to assume that firm commitments made in consequence on negotiation with the EU can be lightly cast aside when they are seen to unsettle the preferred narrative of a Brexit crafted on British terms. But ripping up promises made with reckless bravado during a referendum or an election campaign is very different from treating binding legal commitments as disposable once the time to meet them looms. There is a dismaying sense that the current Cabinet has been assembled to exclude those such as Geoffrey Cox and Julian Smith who understood and respected the nature of the legal obligations undertaken pursuant to the Protocol, leaving the field clear for Mr Gove, Mr Johnson and others who decline to accept responsibility for fulfilment of the obligations imposed by the agreement which was concluded with the EU last Autumn. The whole point of that deal – the key that unlocked Mrs May’s deal and allowed its replacement by Mr Johnson’s – was that it significantly increased the legal, political and economic significance of the Irish Sea as a frontier within the UK. That the Protocol says things – that Northern Ireland is in the UK’s customs territory, that it secures protection of the UK internal market – which it does not do was doubtless politically convenient for the UK government, and probably a matter of misleading packaging in which the EU felt able last year to acquiesce. One wonders if the EU is now regretting not having insisted that the Protocol more clearly says what it does.

Photo credit: Oliver Dixon via Wikimedia


  1. TL;DR, Boris Johnson is and was lying, and all his Ministers are now lying on his behalf. Maybe we should let them finish f*cking up the covid-19 crisis before they start properly f*cking up Brexit.

  2. That is the clearest explanation of the situation I have come across so far. Interesting times lie ahead for sure. I think most of us privately wonder if in our lifetime,we will see the UK reapply for membership of the EU. On the other hand,we also wonder what will happen if the UK succeeds and flourishes.

  3. After general quarantine and after this pandemic, perhaps the question will arise about the existence of the European Union ... Time will tell!

    1. It will indeed tell, although some folks (especially in the UK) have been predicting the demise of the EU in its various forms not only since the UK referendum, but for the last 60 years plus. So far, so embarrassing for them.

  4. Thanks for this excellent piece. What the NIP does is certainly well understood within HMG, even if the lower level policy implications still require significant work. What is clear is that it is impossible for the required HMG technology and operational processes to be ready, and that even if they could be, the trade have absolutely no chance, seeing as they haven't even been told what they have to prepare for yet. We have long been in the territory of long extention or crash out D1ND with all the chaos that will bring.

    1. But in the event of no trade deal, the Protocol will still be in force.

  5. Of course there will be a border in the Irish Sea. That's the WA signed in the House of Commons. EU will enforce this and you better get use to it. Politics in Ireland is not understood or has never been understood by the British for the last 800 years.
    Business will benefit but Border poll is down the line and in 5 years this will be a reality. Politics is the guider here and the Brits better get use to this reality. That's why Johnson is panicking and he knows the protocol will be applied

    1. My question is HOW the EU will enforce a border down the Irish Sea (given that it seems obvious now the UK is not taking the Protocol seriously). The Protocol says the Commission can initiate proceedings, the matter could come before the Court, and that means a fine could be imposed. But the UK is not a Member State. What can the EU do if the UK (cheered on by the ERG and the tabloids) refuses to participate and/or refuses to pay any fine? The WA (Art 4) also envisages that a challenge could be brought directly before the English courts, but who would have (i) the incentive and (ii) the standing in law to bring a case complaining that that UK has failed to put barriers in the way of trade in goods between GB and NI?

    2. Article 12 of the protocol gives the CJEU jurisdiction over the protocol. That includes infringement actions, which can be brought by the Commission and lead to fines. Arbitration proceedings can also lead to fines. Repeated refusal to pay fines would likely have a political outcome in the form of a refusal of the EU to negotiate other things with the UK, and a refusal by the US Congress to approve a trade deal with the UK.

    3. @Anonymous in answer to the question how will the NIP be enforced by the EU. The UK signed and ratified and now its UK law that disputes about the WA of which the NIP is part fall under the ECJ for the first 4 yrs post ratification. The practical effect is that once the ECJ has adjudicated a matter brought against the UK by the EU then its effector arm is the via the UK Supreme Court. So the Johnson government will find itself taken on by its own court. Then the ECJ ruling can (and will) also allow the EU Commission to apply trade sanctions that are perfectly legal under international law. Plus the US as guarantor of the GFA almost certainly will follow suit. As the very well connected Richard North a pro-Brexit trade expert (but not this Brexit) noted this past weekend, the G7 meeting made it very clear to Johnson/Frost that failure to implement the NIP will result in the UK becoming a pariah to both the EU and the USA who will have nothing to do with Johnson and isolate the UK internationally.

    4. Not exactly. The CJEU's jurisdiction is different for different bits of the withdrawal agreement. It has its usual jurisdiction over parts of the protocol, which means that it could eventually impose fines, but not trade sanctions, in the event of a breach. Trade sanctions or fines could follow from the dispute settlement process, which applies to the entire protocol, if the arbitrators rule against the UK and it fails to comply with their ruling by a deadline. The US is not a guarantor of the GFA, but agreed it would likely put political pressure on the UK in this scenario.

    5. @Steve Peers. Thanks for the comment. So essentially in the event of the UK repudiating the NIP by not implementing it the EU can and will go to the ECJ for a ruling on breach and possible fines. What role would the UK Supreme Court have? My understanding is that under terms of the WA it would be the effector arm of an ECJ ruling? Without such its pretty clear the current UK government will ignore any ECJ ruling.
      As to imposition trade sanctions I phrased my comment badly - a ruling that the UK is in breach of the NIP part of the WA has profound trade implications since the NIP is an agreement about the fact that the UK would control an external border of the EU and lays out the mechanisms to be used. So presumably the EU Commission would be justified under WTO in taking trade related countermeasures?

      Lastly, the US considers itself a guarantor of the GFA - since 2019 multiple US members of congress have used that exact phrase in Congress.
      A unreported fact in the UK media is that on May 17th the US Senate passed Senate Resolution 117, a bipartisan sponsored resolution that called on the UK to fully implement the NIP. A unanimous vote in a Senate otherwise massively split over domestic politics.
      In their remarks on the floor the co-sponsors Bob Mendenez (D) and Susan Collins (R) both said that they were bringing this resolution because there were signs the UK gov was reneging on its international treaties.
      The wording of the resolution was that the US Senate calls for
      " the full implementation of the Belfast Agreement, as well as subsequent agreements including the Northern Ireland Protocol and Stormont Agreement.
      This should be a priority for those who support peace, accountability, reconciliation and prosperity for all who live in Northern Ireland"

    6. I could declare myself a guarantor of the GFA too, but that wouldn't make me one. The Supreme Court might ultimately be involved in domestic enforcement of the withdrawal agreement on the basis that an Act of Parliament implements it, but that is not an implementation of a CJEU ruling imposing fines. As for trade sanctions the protocol provides for its own dispute settlement system, distinct from the WTO.

    7. "I could declare myself a guarantor of the GFA too, but that wouldn't make me one"
      True, but then you are not a superpower with control of the worlds financial system and self declared as guarantor.
      This is realpolitik.

    8. No, it's a simple legal point. The US is not a guarantor. The realpolitik is that it will object to UK breach of the protocol regardless, even though it's not a legal guarantor. But we don't know yet what steps it would actually take in practice, or how willing the UK would be to ignore them.

  6. 'So Article 6(1) of the Protocol’s claim that nothing shall prevent the United Kingdom from ensuring unfettered market access..'

    A lot seems to hang on the meaning of 'shall'. Calling this provision a 'claim' seems to imply that the meaning is indicative - a prediction about what will happen in the future. But it feels imperative, admittedly perhaps because I am used to 'thou shalt not murder' etc. I found this: '“In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command and … must be given a compulsory meaning.” Black’s Law Dictionary 1233 (5th ed.1979)'

    If it is a word of command, then it seems to prevent the application of provisions that fetter.

  7. A detailed piece of work. Thank you for your efforts. Much appreciated.

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  12. Johnson has assembled a Cabinet of lickspittles who would basically agree the moon was made of cheese if Johnson said so. Braverman is an example of overpromotion and incompetence, given the job purely because she will go along with things Cox would not .We can only assume Johnson had no intention of abiding with the agreement, hence his ramblings when in N.Ireland resembling the pub drunk.

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