Constitution, Europe, External Affairs and Culture Committee
The Protocol on Ireland and Northern Ireland
Briefing from the Committee Adviser Katy Hayward for the Constitution, Europe, External Affairs and Culture Committee, 29 November 2021
Briefing paper from the committee adviser Professor Katy Hayward, for the Committee's The UK Internal Market Inquiry. 29 November 2021
The Protocol on Ireland/Northern Ireland
1. The origins and purpose of the Protocol
2. Practical matters for the movement of goods GB-NI
3. The implementation of the Protocol is not yet complete
4. Northern Ireland and ‘dynamic alignment’ to EU law
5. The governance of the Protocol
6. The new legal environment for NI
7. The democratic consent vote
8. Public opinion on the Protocol
9. The current UK-EU talks on the Protocol on Ireland/Northern Ireland
The Protocol on Ireland/Northern Ireland was signed as part of the UK-EU Withdrawal Agreement and ratified in UK law by the EU Withdrawal (Agreement) Act (2020). It has consequences for the rest of the UK, including Scotland, in four main respects. The first is on trade with Northern Ireland from Great Britain, which is now affected by the application of customs formalities and regulatory checks and controls, as if those goods were in effect entering the EU’s customs union and single market. The second is on the regulatory frameworks enacted in the UK, for which Northern Ireland is definitively aligned with the EU on over 300 legislative acts. The third is with regard to the UK-EU institutions, specifically the Joint Committee for the Withdrawal Agreement, which has the scope to make significant decisions over the Protocol, including as it affects the UK internal market. The fourth – less straightforwardly – is the UK-EU tension and talks over the Protocol, which could potentially result in further trade barriers on UK-EU trade if the Trade and Cooperation Agreement is suspended in part or in full. This briefing outlines the background to the Protocol, its effects, its implementation and its consequences before considering the state of play in the UK-EU talks over the Protocol which have intensified this month.
1. The origins and purpose of the Protocol
The Protocol on Ireland/Northern Ireland in the UK-EU Withdrawal Agreement arises from UK and EU recognition of the unique historical, geographical and political position of Northern Ireland and the particular challenges that UK withdrawal from the EU would bring to it.
1.1. The Protocol has four objectives (Art 1iii): to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border [on the island of Ireland], and to protect the 1998 Agreement in all its dimensions.”
1.2. In the Joint Report of December 2017, the UK and EU outline the three scenarios in which these shared objectives could be realised: (i) through the UK-EU future relationship (one close enough to minimise the need for border controls and checks), (ii) through specific arrangements for Northern Ireland, or (iii) through full UK alignment with the EU’s single market and customs union.
1.3. There were three versions of the Protocol on Ireland/Northern Ireland that were published.
• In February 2018, the EU drafted a version which saw NI remain in the EU’s customs union and single market (i.e. scenario ii of the Joint Report above).
• In November 2018, Prime Minister May’s version of the Withdrawal Agreement saw the ‘backstop’, in which the UK would align with EU rules in those areas in which the future UK-EU FTA was not close enough to avoid the need for checks/controls on the Irish border (i.e. a combination of scenario i and iii above)
• In October 2019, Prime Minister Johnson negotiated a ‘frontstop’ version of the Protocol, which saw NI formally remain in the UK’s customs territory and internal market but applying the Union Customs Code and de facto part of the EU’s single market for goods (i.e. scenario ii above).
o This version also removed any commitment of the UK to align with EU rules to minimise the impact of the specific arrangements for Northern Ireland. It added a ‘democratic consent vote’ to the continued application of Articles 5-10, which is to be held in the NI Assembly at the end of 2024 in the first instance (see below).
1.4. The Protocol states that NI is part of the UK’s customs territory and an integral part of the UK’s internal market. However, the effect of Articles 5-10 and their supporting Annexes is to see the EU’s customs code and rules applied to goods entering and produced in NI (Fig. 1).
• This is because the principle worked from is that ‘avoiding a hard border’ means free circulation of goods across it, i.e. that everything crossing the Irish border meets the criteria for entry into the EU’s customs union and single market.
• To ensure this is the case, there are customs formalities and checks and controls on goods entering NI from outside the EU, including GB.
1.5. Northern Ireland is aligned to EU law in relation to Individual Rights (as made necessary by the 1998 Agreement), Trade in Goods, VAT and Excise, the Single Electricity Market, and State Aid. The vast majority of these legislative instruments are in relation to trade in goods.
1.6. Northern Ireland is in a unique position of having dual market access: free access to the EU’s single market for goods and unfettered access to the UK market through the UK Internal Market Act (2020).
• However, it does not have free movement of people, services and capital across the Irish border into the EU. For such movements, the conditions negotiated in the TCA apply, plus the Common Travel Area (which only benefits British and Irish citizens).
See Annexe A for Figure 1. Overview of the articles of the Protocol on Ireland/Northern Ireland (credit: D.Phinnemore
2. Practical matters for the movement of goods GB-NI
There are several schemes established to smooth the operation of the Protocol for GB-NI trade. The UK Government has invested hundreds of millions in these schemes.
2.1. There are major new IT systems in place to assist in the movement of goods from GB to NI. Some of these also apply for GB-EU movement, including the Goods Vehicle Movement System (GVMS).
2.2. The UK Trader Support Service (TSS): To assist customs declarations moving goods GB to NI.
2.3. A UK Trader Scheme: To allow tariff-free movement into NI goods staying in NI, i.e. those not ‘at risk’ of moving into the EU’s single market. This runs out in 2024 but can be modified or extended then with Joint Committee agreement
2.4. The Movement Assistance Scheme: To cover the costs of certification and inspections required for moving agri-food products from GB to NI.
2.5. The Digital Assistance Scheme: A simplified end to end digital system which streamlines the certification and verification processes required for moving agri-food products and live animals from GB to NI.
The difficulties encountered in the operation of the Protocol in terms of trade come under three broad categories
2.6. Lack of preparation/information• There was far from necessary lead-in time to plan from a business perspective. The focus in information-giving from the UK Government during the transition period was on GB-EU movement, and there was a lack of clarity about GB-NI movement.
• The development of the new IT systems had too little time for testing and roll-out and familiarisation. The TSS for example went live on 21st December 2020.
• IT system functionality and data inaccuracy reflected in the manual input form via the TSS resulted in gaps in information that were deemed mandatory further down the supply chain. This has largely been addressed now.
• The impact of the Covid-19 pandemic greatly exacerbated problems with supply chains.
• Small and micro businesses are particularly struggling still with the new requirements, especially the level of detail needed for the supplementary declarations that are required after the simplified ones. This requires resources and adds costs.
• The small size of NI market means some GB businesses did not consider it worth the trouble of adjusting to the new rules.
• Rules of Origin means that some goods coming into NI via GB have lost their tariff-free status (e.g. if they were repackaged), thus putting NI buyers at a disadvantage.
o The issue here is that Party A cannot certify the origin of produce from Party B. It can only certify the origin from within its own country or region.
o This means that NI businesses will increasingly source directly from the EU to avoid this tariff barrier that is not faced by GB businesses.
• Non-access of NI businesses to the tariff rate quotas of either the EU or the UK FTAs.
2.8. Nature of the trade
• Mixed loads (e.g. supermarket lorries) and JIT (bearing in mind NI shelf life for products is less than for GB ones given transit time) loads have proven difficult to accommodate.
• Uncertainties when making ‘not at risk’ declarations only for part of your imports as you are unsure of the split of NI and ROI consumption at time of import.
• Tariff costs for EU origin goods routing through GB distribution hubs and the import duties on goods for businesses without fixed premises in NI.
3. The implementation of the Protocol is not yet complete
The UK Government is ultimately responsible for giving effect to the Protocol, but much of its impact falls within devolved competence.
3.1. The EU Withdrawal Agreement Act (2020) states that a UK Minister or a devolved authority, including a Northern Ireland Executive Minister, ‘either acting alone or jointly’, may make regulations to give effect to the Protocol (Sections 21 and 22).
3.2. Statutory instruments which implement parts of the Protocol are subject to the affirmative procedure in the UK Parliament where made by a UK Minister, acting alone or jointly with a devolved authority.
3.3. In correspondence (6 January 2021) to the Committee for the Executive Office, Chancellor of the Duchy of Lancaster, Michael Gove, said in respect of the Withdrawal Agreement that, “Much of the legislation that will apply to Northern Ireland falls under the exclusive competence of its institutions, and it is important that oversight of devolved policy responsibilities continues to rest primarily with the Assembly.” What this means in practice is unclear.
3.4. Also unclear is the matter of what will happen if NI Ministers continue to be unwilling or unable to make regulations necessary to implement the Protocol (e.g. building border control posts) or if the Assembly chooses either to annul or not to approve any such regulations that are made. The potential for Stormont/Westminster tensions is evident.
The UK Government is responsible for ‘implementing and applying the provisions of Union [EU] law made applicable’ by the Protocol in Northern Ireland (Art 12.i). This includes enforcing the Union’s Customs Code.
3.5. This is one reason why the EU considers itself to have shown an unprecedented level of flexibility for NI, given its reliance on the authorities of a third country securing what is in effect its external single market and customs territory boundary.
3.6. Article 12 states that ‘Union representatives shall have the right to be present during any activities of the authorities of the United Kingdom related to the implementation and application of provisions of Union law… as well as activities related to the implementation and application of Article 5 [i.e. customs, movement of goods]’.
3.7. The UK has so far not permitted a continual presence for EU representatives, only visits; this adds to the sense of unease on the EU’s side when it comes to the operation of the Protocol in practice and the potential risks involved for it.
The Protocol is not currently fully operational and the deadline of 31 December is looming for the end of the grace period on medicines.
3.8. On 17 December 2020 the UK-EU Joint Committee agreed to grace periods on some aspects of the Protocol that required the greatest adjustment for GB/NI movement of goods:
3.9. A 12 month adaptation period for human and veterinary medicines moving GB to NI. This enables a phasing in of medicines regulations/adjustment of supply chains until 31 December 2021.
3.10. A 3 month adaptation period on SPS rules (e.g. products of animal origin, plant products): This enables authorised traders (identified by DAERA) to use simplified official certificate in place of an Export Health Certificate (EHC) until 31 March 2021 (unilaterally suspended and now in standstill).
3.11. A 6 month grace period on chilled meat products (e.g. mince, sausages) that would not be able to be moved GB-NI at all after 30 June 2021 (currently in standstill).
3.12. A 3 month grace period on customs declarations on all parcels (in standstill).
• Currently, NI-based businesses receiving goods valued at £135 or more through an express carrier/Royal Mail must submit a customs declaration within three months of receiving the goods.
• When the grace period ends, customs documentation will be required (potentially including proof of origin of component parts) on business to consumer parcels.
There are four outstanding issues that need to be addressed on the UK side to manage movement of goods between GB and NI effectively.
3.13. Border Control Posts need to be constructed in NI entry points. These require specialised facilities. Proper inspections cannot be completed without them.
• The NI Minister for Agriculture has refused permission to construct these so far.
3.14. Data on the movement of goods across the Irish Sea.
• The UK promised the EU (17 December 2020) full and real time access of the Union Representatives to the UK IT systems in order to carry out their monitoring duties properly, and this is only partial at the moment.
3.15. Rebate scheme for tariffs paid on goods that stayed within NI.
• The UK promised to reimburse duties paid on goods entering NI that were considered at risk of entering the EU but did not do so. There is still no system by which companies can claim this money back from the British government.
3.16. Definition of NI qualifying goods.
• Currently all goods in free circulation in NI qualify for unfettered access to the GB market. Inevitably this means goods from Ireland and the rest of the EU, as there are no customs procedures currently required.
• This definition was to be refined within a few months but currently remains very broad.
4. Northern Ireland and ‘dynamic alignment’ to EU law
There can be amendments/additions/deletions to the contents of the Protocol until end 2024 if agreed by the Joint Committee
4.1. Until the end of the fourth year following the end of the transition period (i.e. end 2024), the Joint Committee has the authority under the Article 164(5) of the Withdrawal Agreement (WA) to adopt decisions amending the Withdrawal Agreement (including the Protocol) ‘provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement’.
There can be amendments, replacements or deletions of the EU acts that apply under the Protocol which automatically apply in NI
4.2. Article 13(3) provides for dynamic alignment to specific areas of the EU acquis. Where these acts amend or directly replace EU acts listed in the Protocol they will be automatically updated and apply in Northern Ireland. The UK cannot block them.
4.3. This means that Northern Ireland is dynamically aligned to a substantive portion of the EU acquis. As such its statute book will have to adjust as the legal instruments incorporated into the Protocol are updated and amended at EU level.
4.4. At the time the Withdrawal Agreement was signed, 338 acts were listed in the Protocol. This was increased to 344 (8 additions, 2 deletions) by the Joint Committee in December 2020. Such additions/exclusions can only come with the agreement of its co-chairs.
• By July 2021, this stood at 313. This was due to the repeal of around 50 acts, mostly in the area of animal health. Many of these were replaced in the form of more broad pieces of legislation, such as the EU act (Regulation (EU) 2017/625) known as the ‘Official Controls Regulation’.
New EU acts could apply through the Protocol in the future, but only with the agreement of the UK and EU.
4.5. Under Article 13(4), the UK-EU Joint Committee will decide whether a new EU law which falls within the scope of the Protocol should apply in Northern Ireland.
• One such act is the Carbon Border Adjustment Mechanism, for example. This is to be transitioned in from 2023. The UK has not yet agreed to this applying to NI.
• In principle, it would see imports of goods from all non-EU countries required to purchase CBAM certificates, although third countries with an emission trading system linked to the Union's will be excluded from the mechanism.
4.6. It is for the Joint Committee to ‘hold an exchange of views on the implications of the newly adopted act for the proper functioning of this Protocol’ (Article 13(4)).
• The Joint Committee then decides either to adopt the relevant acts or to ‘examine all further possibilities to maintain the good functioning of this Protocol and take any decision necessary to this effect’
• On what grounds these decisions will be made and whether and how there can be input from Northern Ireland in making these decisions remains, to date, unknown.
• In the absence of a decision by the JC, the EU may take ‘appropriate remedial measures’. Presumably these will have a negative effect on NI’s standing vis-à-vis the EU’s single market.
A complicating factor is the matter of implementing legislation.
4.7. Because EU directives, regulations and decisions do not always provide detail for the procedures, processes or requirements that may be necessary for implementation, such details are instead set out in EU implementing legislation.
• There can be around a thousand such pieces of legislation issued per year. These are highly technical. Northern Ireland needs to be aware of this legislation in order to be able to discern what applies to it post-Brexit (1).
4.8. Where there has been a substantial amount of implementing legislation, the parent act can be recast as a consolidated act, and published in the Official Journal of the European Union.
• To show the significance of this, of the 338 EU acts that applied in NI under the Protocol, over 120 have been recast as consolidated acts since the UK left the EU.
The immense complexity of managing divergence north/south and east/west
4.9. The situation for the operation of the Protocol will become more complicated over time as regulatory divergence between the UK and EU increases and the UK concludes its own trade agreements with non-EU countries.
4.10. Moreover, the fact that the 1998 Agreement sees multilevel governance operate, with areas of common policy- and decision-making on a north/south basis, adds to the complex arena in which the Protocol will have to be managed (Fig. 2).
See Annexe A for Figure 2. The range of policy areas within the scope of the Protocol and the UK-EU, NI and north/south bodies with a role in relation to it.
5. The governance of the Protocol
5.1. The Protocol means there will be ongoing jurisdiction of the Court of Justice of the European Union (CJEU) over UK actions with regard to EU law in Northern Ireland and relevant EU law will continue to have direct effect in Northern Ireland.
5.2. If there is a dispute between the EU and UK on the application of the WA, they shall ‘endeavour to resolve any dispute … by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution’. (Article 169i of the WA)
5.3. If no resolution to a dispute sent to the Joint Committee is found within three months, the issue will be referred to the arbitration panel, whose decision will be final and binding (Article 170). In matters where the arbitration panel requires an interpretation of EU law the arbitration panel must ask for the Court of European Justice’s ruling on the matter.
The Joint Committee [JC] is to oversee the implementation of the Protocol.
5.4. The Joint Committee (JC) is the only decision-making body overseeing the Withdrawal Agreement (WA), including the Protocol drawing on recommendations from the Specialised Committee on the Protocol on Ireland/Northern Ireland.
• The JC is co-chaired by Lord David Frost (negotiator of the WA and the TCA, and successor to Michael Gove) and EU Commission Vice-President Maroš Šefčovič.
5.5. The JC is to make all its decisions and recommendations ‘by mutual consent’. It follows that the JC cannot act if either the UK or Commission are not in agreement.
• Resolving disputes by consensus is a core function of the JC. Each party may refer ‘any issue relating to the implementation, application and interpretation’ of the Withdrawal Agreement to the JC.
• If no resolution to a dispute sent to the JC is found within three months, the issue will be referred to the arbitration panel, whose decision will be final and binding. In matters where the arbitration panel requires an interpretation of EU law, the arbitration panel is to ask for the European Court of Justice’s ruling on the matter.
5.6. The Joint Committee keeps ‘under constant review’ three dynamic processes:
• Firstly, relating to the movement of goods to and from Northern Ireland, according to Article 6(2) of the Protocol, it is to review the facilitation of trade within the UK.
• Secondly, it has the competence to review the application of the rules relating to VAT and Excise as set out in the Protocol (Article 8).
• Thirdly, relating to cross-border cooperation on the island of Ireland, according to Article 11(2) of the Protocol: ‘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.’
5.7. The UK and the EU are obliged to implement the Joint Committee’s decisions, which will have the same legal effect as the WA itself.
• At no point is there an obligation for the UK or European Parliaments to discuss such issues, and neither will be asked or required to ratify decisions taken by the JC as a rule.
5.8. Finally, the JC has the power to review and terminate arrangements arising from its decisions made just before the end of the transition period (17 December). These cover ‘at risk’ goods, the authorisation for trusted-trader status and exchange of information in relation to customs and the movement of goods.
5.9. Overall, the JC retains a responsibility to meet the objectives of the Protocol at the same time as it is charged with monitoring and reviewing its implementation, making decisions on its scope and evolution, and maintaining dialogue between the UK and EU.
The Specialised Committee on the Implementation of the Protocol on Ireland and Northern Ireland [INISC] is to facilitate and administer the Protocol.
5.10. The Specialised Committee is formed of senior officials, and co-chaired by UK and EU senior officials.
5.11. The Specialised Committee has a broad power to discuss ‘any point…of relevance’ to the Protocol that ‘gives rise to a difficulty’, as raised by either the UK or EU. It can also make recommendations to the Joint Committee as regards the functioning of the Protocol.
• In so doing, it in turn may receive proposals from the North-South Ministerial Council and the six North-South Implementation Bodies (see Fig. 3).
• It should also consider ‘any matter of relevance’ brought to its attention by designated bodies relating to the implementation of the Protocol’s human rights provisions. No mention is made in the Protocol of any role for the NI Assembly or Executive.
The Joint Consultative Working Group [JCWG] is to inform the work of the Specialised Committee.
5.12. The JCWG is the forum for the exchange of information and mutual consultation between the UK and the EU in respect of the Protocol.
5.13. The JCWG is the only new body being created to inform the work of the Specialised Committee (see Figure 3 below). It has no power to make binding decisions other than to adopt its own rules of procedure.
5.14. The JCWG has established a pattern of working that is quite regularised but there are still significant deficiencies in terms of the effectiveness of keeping the NI legislature informed as to any necessary amendments.
5.15. The JCWG is where the EU will inform the UK about ‘planned Union acts within the scope’ of the Protocol (Article 15iii).
5.16. Article 15vii) of the Protocol places an obligation on the EU to communicate the views and information shared in the JCWG to ‘the relevant institutions, bodies, offices and agencies of the Union without undue delay’.
• There is no similar obligation on the UK, despite the need for effective communication on the JCWG’s work to institutions, agencies and offices in NI.
See Annexe A for Figure 3. The institutions governing the Protocol (credit: D. Phinnemore)
Northern Ireland’s direct input to these UK-EU bodies overseeing the Protocol is limited.
5.17. The UK government committed in the New Decade New Approach (8 January 2020) document to ‘ensure that representatives from the Northern Ireland Executive are invited to be part of the UK delegation’ in meetings of the Joint Committee and the Specialised Committee.
• It specifies that these invitations will happen only in instances where the Committee concerned is discussing Northern Ireland-specific matters and which are ‘also attended by the Irish Government as part of the European Union’s delegation’.
• The First Minister and deputy First Ministers are invited to observe the formal meetings of the Joint Committee. Usually they have nominated two junior ministers in their stead, who then report to the Committee on the Executive Office.
• The fact that so many of the JC meetings have been political ones rather than formal ones means such engagement from NI has been made more difficult.
• A member of the NI Executive Office in Brussels is in the UK team in the JCWG.
5.18. The North/South Ministerial Council and the Belfast (Good Friday) Agreement’s cross-border implementation bodies will be able to make proposals to the Specialised Committee concerning the implementation and application of the Protocol
5.19. Uniquely, the UK-EU Joint Committee co-chairs have appeared separately before a committee of the legislature of a non-member-state region, namely the NI Assembly.
5.20. The EU’s non-paper on structured dialogue (13 October 2021) proposed establishing structured dialogues between Northern Ireland stakeholders (authorities, civic society and businesses) and the Commission.
• This would involve the creation of structured groups with experts covering measures important for the implementation of the Protocol.
• It also proposed that NI stakeholders could be invited to attend some meetings of the Specialised Committee.
• It also proposed ‘a stronger link between the Northern Ireland Assembly and the EU-UK Parliamentary Partnership Assembly’.
• Finally, in response to concerns about transparency, it is establishing a website to show the EU legislation applicable in Northern Ireland.
5.21. However, as a sub-state region outside the EU, the representation of Northern Ireland’s interests to the EU will come primarily through the UK government.
6. The new legal environment for NI
Since 1 January 2021, Northern Ireland’s legal environment has become much more complicated.
6.1. Legislation that applies in Northern Ireland includes that which comes through (i) Stormont in devolved areas of competence, (ii) Westminster for reserved and excepted areas, (iii) retained EU law (through the EU [Withdrawal] Act 2018), and (iv) directly applicable EU legislation (through the Protocol given direct effect by s7A of the 2018 Act as amended by s5 the EU Withdrawal [Agreement] Act 2020).
6.2. The capacity of the NI legislature to manage this environment has become somewhat constrained after Brexit, and not only through the Protocol.
• The EU Withdrawal Act (2018) and EU Withdrawal Agreement Act (2020) granted powers to ministers of the UK government to make regulations in devolved areas of competence by way of statutory instrument (SI), where they intersect with EU law.
• These Acts make specific provision for Ministers in the UK Parliament to legislate in devolved areas without consent by ‘freezing’ devolved competence in a particular area.
6.3. Another area of concern is with regard to the uncertainty about the future of retained EU law in the UK
• Lord Frost’s announcement (16 September 2021), and subsequent answers to questions in the House of Lords (18 November 2021), on this subject evidence the wish of the UK Government to make substantial changes to retained EU law.
• This will be to remove its ‘special status’ and to conduct a ‘review of its contents’ because, he stated, ‘our intention is eventually to amend, to replace, or to repeal all that retained EU law that is not right for the UK.’
• When it comes to the process by which this will occur, Lord Frost has said ‘we will look at developing a tailored mechanism for accelerating the repeal or amendment of this retained EU law’. Lord Frost repeatedly refused to say whether this would entail primary legislation, which would of course then allow for parliamentary scrutiny.
6.4. With the launch of what Lord Frost calls the ‘new series of reforms to the legislation we inherited on EU exit’, comes the risk of further divergence between GB and NI, and thus more friction on GB-NI trade.
The UK common frameworks also represent another significant change to the governance conditions for NI post-Brexit.
6.5. Northern Ireland is the part of the UK most affected by common frameworks. NI has 151 intersects between EU law and devolved competence (compared to 105 in Scotland and 66 in Wales). NI also has the most frameworks in Category 2 (22 non-legislative) and Category 3 (18 legislative). This is because scope of devolution, plus north/south dimensions arising from the operation of the 1998 Agreement.
6.6. Applicable EU law supersedes domestic law. This means that common frameworks can only operate in Northern Ireland if they do not conflict with the EU law that applies in the same area through the Protocol (as listed in Annexes 1-5).
• As such – even as noted in the earliest definition of a common framework as set out by the communiqué from the Joint Ministerial Committee (EU Negotiations) of 16 October 2017 (2), a common framework sets out ‘a common UK, or GB, approach’ [italics added].
6.7. Five of the thirty-two active common frameworks only apply to Northern Ireland: operator licensing and commercial transport, driver licensing, roads motor insurance, rail technical standards. The sixth area identified as being NI-specific that intersected with EU law – equal treatment legislation – was deemed in September 2020 to not require further action (3).
6.8. Some of the EU legislative instruments applying in NI through the Protocol fall within areas that are covered by common frameworks, e.g. food and feed safety and hygiene.
The UK Internal Market Act cannot guarantee that trade can continue unhindered across the UK as it did before Brexit because of the Protocol.
6.9. The unfettered access principle means that there should be as few restrictions and changes as possible in the way that NI goods move from NI into GB.
6.10. However, the UK Internal Market Act does nothing to minimize the frictions on GB to NI movement; indeed, by not containing measures to prevent a ‘race to the bottom’, it allows for increased GB to NI friction in trade.
6.11. The UK Internal Market Act has less of a restrictive impact on the effectiveness of devolved legislation in Northern Ireland than it does in Scotland and Wales; but this is arguably because the powers of the NI Assembly are already constrained by the Ireland/Northern Ireland Protocol.
7. The democratic consent vote
The democratic consent mechanism included in the revised Protocol of October 2019 came in response to concerns about the democratic legitimacy of the Protocol (weakened at least in part by the fact the NI power-sharing Assembly and Executive were suspended 2017-2020).
7.1. The democratic consent vote that will occur in the Assembly every four to eight years, with the first opportunity occurring at the end of 2024.
• This vote will be specifically about the continued application of the Protocol’s provisions on customs, movement of goods, protection of UK internal market, technical regulations etc., VAT and excise, the single electricity market, and state aid.
• It is the responsibility of the UK to provide the opportunity for the democratic consent vote in Northern Ireland
• A vote of the ninety MLAs present is to be preceded by ‘a thorough process of public consultation’ led by the NI Executive, to include cross-community consultation.
7.2. There are three possible outcomes of the vote:
• (i) a vote with cross-community support in favour of alignment [to be followed by another possible vote in eight years’ time];
• (ii) a majority vote in favour of continued alignment but one that does not meet the conditions of cross-community consent [to be followed by public consultation and another possible vote in four years’ time];
• (iii) a majority vote to opt out of alignment, after which there will be a two-year period to agree replacement arrangements, the default being the current UK-EU relationship (and so the earliest Northern Ireland could leave alignment would be at the end of 2026).
7.3. If a majority of MLAs vote to disapply Articles 5-10, the Joint Committee is to make recommendations to the EU and UK on the necessary measures to be put in place instead of Articles 5-10, ‘taking into account the obligations of the parties to the 1998 Agreement’.
• In this sense, the vote is not a ‘get-out clause’ per se but puts responsibility back in the hands of the UK and EU to negotiate an alternative to a hard border on the island of Ireland.
8. Public opinion on the Protocol
There is a tendency to overlook the views and interests of people in NI when it comes to the Protocol. Polling shows that the picture is more complicated than it sometimes presented.
8.1. Regular polling has been conducted through the Post-Brexit Governance NI project on the subject of the Protocol.
• The sample, using LucidTalk’s opinion panel, is weighted to be representative of NI society, including in age, religion, area of residence, social class and gender.
8.2. All three polls of 2021 show that a majority of respondents think that Brexit is on balance bad for the UK, that a majority (2/3) think that NI needed specific arrangements to manage the impact of Brexit, and the greatest concern about the impact of the Protocol is on political stability in NI.
8.3. Whilst the first two polls in Spring and Summer showed a close split over whether the Protocol was appropriate or, on balance, a good thing, the results from our poll in the Autumn were notably different. These show a slight majority in favour of the Protocol, with 53% thinking it appropriate, and 52% thinking it on balance good for Northern Ireland (and 41% disagreeing, with 7% undecided)
• Most particularly there has been an increase in those thinking that the Protocol is having a positive impact on the Northern Ireland economy (51%).
8.4. The polling also shows significant differences between unionists (particularly strong unionists, i.e. DUP supporters) and others (nationalists and those who are non-aligned) when it comes to opinion on the Protocol.
• The pattern is close to that of the 2016 referendum itself, with nationalists and non-aligned (e.g. Alliance Party supporters) being strongly in favour of the Protocol (just as they were opposed to Brexit), moderate unionists having varied opinions (some supporting, some undecided, and the plurality opposed), and strong unionists being strongly opposed to it.
8.5. The pattern is also evident in views about whether the UK Government would be justified in invoking Article 16. The majority (53%) say that it would not be justified although 9/10 DUP supporters say that it would be.
See Annexe A for Figure 4. NI Opinion of the Protocol (QUB/LucidTalk, October 2021)
8.6. One thing that unionists, nationalists and others share in Northern Ireland is their distrust of the British Government.
• All three of our polls have shown very low levels of trust in the UK Government when it comes to handling the interests of Northern Ireland over the Protocol – between 4-6%. 87% distrust or strongly distrust the UK Government on this matter; this is compared to 44% distrust of the EU Commission.
8.7. Another difference between the October poll and the earlier two lies in views about how MLAs should vote in the Consent Vote on Articles 5-10.
• Previously there was an even split when asked about the consent vote, but now a majority want to see the Protocol continue in full after 2024.
• Our polling shows that this will be a live issue in the 2022 Assembly election, with only 20% saying the issue will not affect the way they cast their vote.S
ee Annexe A for Figure 5. NI views on how MLAs should vote in the consent vote on the Protocol (QUB/LucidTalk, October 2021)
9. The current UK-EU talks on the Protocol on Ireland/Northern Ireland
The UK Government’s Command Paper on the Protocol (21 July 2021) set out the UKG’s wish that the Protocol (ratified as part of the Withdrawal Agreement in January 2020) now be renegotiated with the EU.
9.1. The command paper put forward a rationale for this request that includes an argument that the UKG did not expect the Protocol to be applied as it has been, and which also sets out grounds of particular difficulties in its application.
9.2. The areas it seeks changes in are customs procedures on goods entering NI from GB, on SPS [Sanitary-Phytosanitary] checks and controls, on the areas currently covered by the grace periods, and on governance (specifically, the jurisdiction of the EU’s Court of Justice).
9.3. The paper also claimed that the conditions for invoking Article 16 safeguard measures are already present in NI but noted that this would be a temporary and limited action, and it would be preferable to have a negotiated outcome.
9.4. It requested a ‘standstill’ on the legal action being taken by the EU over its unilateral extension of the grace period on export health certificates in March and a standstill on all grace periods whilst talks were in progress. The EU agreed to this.
9.5. This was followed by talks between the teams of Frost and Šefčovič in August in which the UKG went through the command paper in detail (4)
9.6. Lord Frost has since made it clear (e.g. in his British-Irish Association speech and Lisbon speech) that the UKG is seeking an alternative to the Protocol, a new document, and claims that this is allowed for by the terms of the Protocol itself, namely Article 13.8 (5).
The European Union has made it clear that it will not ‘renegotiate’ the Protocol
9.7. It claims that Art 13.8 was intended merely to allow for the possibility that the TCA (if creating the conditions for a soft Brexit) would make parts of the Protocol unnecessary.Instead, the EU has agreed to talks with the UK that will make adjustments to the Protocol in order to put it on a more sustainable footing.
9.8. The EU has been clear that this willingness to make changes comes in response to concerns and issues that it has heard directly from NI elected representatives, businesses and civil society, most especially when Šefčovič visited in NI in early September.
9.9. The EU produced four non-papers on 13th October which are intended to outline possibilities as to where the talks between the UK and EU might lead. They cover customs, SPS, medicines and engagement with NI stakeholders and authorities
9.10. It uses the non-papers to point out what the UKG has so far not fulfilled in terms of its obligations (e.g. building more Border Control Posts in NI harbours) as well as to show it recognises some of the difficulties around full application of the Protocol.
9.11. The presentation by the EU of these non-papers emphasised a best case scenario, e.g. with 50% reduction in customs paperwork and 80% reduction in SPS checks. However, these are, of course, conditional on movement from the UK. Ultimately, it is quite impossible to move far from the fact that fewer checks and controls require other conditions that can give the EU confidence that the risk to the single market posed by GB to NI movement is low.
9.12. Such conditions would require commitment from the UK to align with ‘basic standards in production’ of meat products, for example, and also greater access for the EU to information that would allow it to see what is entering NI. It would also introduce review and (instant) termination clauses to any such measures bringing flexibility in the application of its rules to NI under the Protocol.
9.13. The EU has shown flexibility in terms of legislative change that it will bring forward in the area of medicines in particular.
9.14. On governance, it is holding to a red line over ECJ jurisdiction but points to the importance of direct engagement with stakeholders in NI. It suggests there could be a stronger link between the NI Assembly and the UK-EU Parliamentary Partnership Assembly.
The UK and EU are now in intensive talks, with weekly meetings between Frost and Šefčovič so far, and their officials engaging in discussions that broadly cover the areas in which they agree progress must be made.
9.15. Businesses in NI issued a cautious welcome to the EU non-papers but would note that they are aspirational, lacking in detail, and with some omissions (e.g. on parcels).
9.16. The UKG has put forward a ‘legal text’ which very closely reflects its Command Paper in order to give more weight to the notion that there is an alternative to the approach taken by the EU. However, this has come on the condition that it not be shared beyond a very tight circle in the Commission, and the member-states have not been given copies of this.
9.17. Frost has said that he wishes to see results from the talks coming out this Autumn. The EU has been suggesting it is more likely to be the end of this year or early next.
9.18. One complicating factor is that the DUP have threatened to step out of power-sharing if they are not happy with progress being made in the talks. They wish to see the demands of the UK Command Paper realised (although ECJ jurisdiction is not something included in the DUP’s ‘seven tests’ on the Protocol) and have called on the UKG to invoke Article 16 safeguard measures if this doesn’t happen.
9.19. The EU is prepared to keep the talks moving in a parallel track even if Article 16 is triggered. However, it would make it more difficult for the two to come to agreement in such circumstances, not least because EU27 would be less inclined to show the type of flexibility required to make substantive adjustments to the operation of the Protocol.
9.20. The UK and EU have agreed to continue with their intensive talks and for the co-chairs to meet every Friday. It is not clear whether they intend to produce agreements as they arise, e.g. on medicines, or whether they will continue to talk until they agree on a complete package. Hope is fading of there being agreement this year. Two deadlines are the end of the medicines grace period (31 Dec) and purdah before the Assembly elections (by 5 May 2022).
9.21. One major difficulty is that the two sides have different expectations and frameworks in mind as to what the outcome of the talks would be, i.e. a joint UK-EU decision or an alternative Protocol.
9.22. Another is that the talks can produce technical adjustments but much of the difficulty is now political, namely a clear unionist/nationalist difference of opinion on its very existence.
• The DUP is unlikely to be persuaded by any agreement that will keep the Protocol operational. Either the UKG will follow that hard unionist, anti-Protocol line, and thus be set for no agreement – or it will ultimately disappoint them. Neither scenario bodes well for political stability in NI.
1. Lisa Claire Whitten, ‘The Protocol: ‘dynamic alignment’ in post-Brexit Northern Ireland’, UK in a Changing Europe, 21 September 2021. See: https://ukandeu.ac.uk/long-read/the-protocol-post-brexit-northern-ireland/
4. Art 16.1: “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.”
5. Art 13.8: “Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes. Once a subsequent agreement between the Union and the United Kingdom becomes applicable after the entry into force of the Withdrawal Agreement, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply, as the case may be, in whole or in part.”
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