It’s probably rash of me to attempt a commentary on the Ireland/Northern Ireland protocol of this massive draft Withdrawal Agreement. But very provisionally, here goes.
The first thing that strikes me is that the Protocol (from p301) takes great pains to give assurances that life will continue much as now, that the constitutional position is not threatened and there will be no border in the Irish Sea. It prevents a hard border by instituting an all-UK customs alignment with the EU and allows for an extension of the transition period to the final relationship. There are at least two options for the final deal; a permanent close alignment between the UK and EU; or a free trade deal for GB which would seem to require the permanent alignment of Northern Ireland with the customs union and the single market – in other words, the border down the Irish Sea which the DUP being pessimists, fear that the Protocol merely anticipates.
The joint UK/EU committee – and a role for the Assembly
Secondly, implementation is in the hands of a Joint Committee of the UK and EU in which the Republic and Assembly parties will figure. There is also a review process and a requirement to plan for the final deal. The joint committee will administer the Northern Ireland protocol. It will be advised by a joint working group.
Avoiding a hard border and protecting the GFA “in all its dimensions” is for the EU and UK to decide jointly within the Joint Committee and if or when the Protocol, in whole or in part, is no longer necessary to achieve its objectives.
Not only are main decisions to be taken jointly by the EU and UK but Northern Ireland does not seem to be the quite the helpless pawn in the game that the pessimists fear.
Given that economically the Protocol looks forward to increasing north-south trade and insists that no obstacles have been set to east- west trade, it can be argued that Northern Ireland can get the best of both worlds. Is it therefore wise of the DUP to make an enemy of the government at least at this stage?
Customs and other complexities
The third thing that strikes me early is how the Protocol builds on the Good Friday Agreement. If the British government in particular mean what they say in this document, they will now bend to much greater efforts to revive it. The NI Protocol alone is much more complex than the GFA .It covers customs rules and regulations, professional standards and agriculture and fisheries, human rights and movement of other EU citizens. The Joint Committee shall adopt before 1 July 2020 the detailed rules relating to trade in goods between the two parts of the single customs territory,
NI is part of the common customs territory of the UK but with some special arrangements which are impossible for a lay person to follow. This no doubt is the nitty gritty but I will do my best, with more to follow.
Admittedly there will be hidden traps still to be exposed. The Protocol writes the EU into the governance of Northern Ireland, including specific but limited roles for the European Court of Justice.
How the customs and other regulations for Northern Ireland diverge from GB frankly requires expert analysis as there is a lot of legal cross referencing to other parts of the massive document and established EU law.. For example there are 100 pages of directives and regulations that affect Northern Ireland and there is no helpful executive summary. Comparing the commentaries of both governments when they emerge will be instructive.
A few articles stand out immediately
ARTICLE 6 Single customs territory, movement of goods
Until the future relationship becomes applicable, a single customs territory between the Union and the United Kingdom shall be established (“the single customs territory”). Accordingly, Northern Ireland is in the same customs territory as Great Britain.
Under no circumstances may the United Kingdom: (a) apply to its customs territory a customs tariff which is lower than the Common Customs Tariff for any good or import from any third country; or grant tariff preferences to any good on the basis of rules of origin different
The UK shall align the tariffs + rules applicable in its customs territory with the EU’s Common Customs Tariff, the EU’s rules of origin, + the EU’s rules on the value of goods for customs purposes.
In what seems likes a major concession from the EU, different rules for NI from GB are to be agreed by the joint committee (to be confirmed)
Where appropriate, the Joint Committee may to lay down higher standards for these level playing field conditions – environmental standards, labour law.
ARTICLE 7 Protection of the UK internal market
Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market.
The Joint Committee shall keep under constant review the application of this paragraph and adopt appropriate recommendations with a view to avoiding, to the extent possible, controls at the ports and airports of Northern Ireland.
ARTICLE 8 Technical regulations, assessments, registrations, certificates, approvals and authorisations 1. Without prejudice to the provisions of Union law referred to in Annex 5, the lawfulness of placing goods on the market in Northern Ireland shall be governed by the law of the United Kingdom as well as, as regards goods imported from the Union, by Articles 34 and 36 TFEU. 2.
NI will have special “UKNI” trading mark.
Where provisions of Union law made applicable by this Protocol provide for the indication of a Member State, including in abbreviated form, as markings, labelling, tags, or by any other means, the United Kingdom in respect of Northern Ireland shall be indicated as “UK(NI)” or “United Kingdom “United Kingdom (Northern Ireland)”.
NI agriculture will remain under EU regulation (I think) Bu this is complex. Interpretation needed.
ARTICLE 10 Agriculture and environment The provisions of Union law listed in Annex 5
ARTICLE 11 Single electricity market likewise – as agreed. The provisions of Union law governing wholesale electricity markets listed in Annex 7 to this Protocol shall apply, under the conditions set out therein, to and in the United Kingdom in respect of Northern Ireland.
The preamble sets out a long list of shared aims..
The Union and the United Kingdom recognise that it is necessary to address the unique circumstances on the island of Ireland through a unique solution in order to ensure the orderly withdrawal of the United Kingdom from the Union.
The Withdrawal Agreement, which is based on Article 50 TEU, does not aim at establishing a permanent future relationship between the Union and the United Kingdom.
The Union’s and the United Kingdom’s intention is to replace the backstop solution on Northern Ireland by a subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing.
HAVING REGARD to the Union and to the United Kingdom’s common objective of a close future relationship, they will establish ambitious customs arrangements that build on the single customs territory provided for in this Protocol, in full respect of their respective legal orders.
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 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.
Union law has provided a supporting framework to the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement.
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”.
The United Kingdom ( is committed) 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.
Nothing in this Protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market,
The parties ( have the) shared aim of avoiding, to the extent possible in accordance with applicable legislation and taking into account their respective regulatory regimes as well as their implementation, controls at the ports and airports of Northern Ireland.
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, to apply unless and until an alternative arrangement implementing another scenario is agreed.
The Withdrawal Agreement, the transition period may be extended by mutual consent.
The two Parties have carried out a mapping exercise, which shows that North-South cooperation relies to a significant extent on a common European Union legal and policy framework.
The United Kingdom’s departure from the European Union gives rise to substantial challenges to the maintenance and development of North-South cooperation.
The United Kingdom remains committed to protecting and supporting continued North-South 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.
This Protocol (has to be) implemented so as to maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement.
The Union and the United Kingdom are committed to the North South PEACE and INTERREG funding programmes under the current multi-annual financial framework and to the maintaining of the current funding proportions for the future programme.
The commitment of the United Kingdom is confirmed, to facilitate the efficient and timely transit through its territory of goods moving from Ireland to another Member State or another third country, or vice versa.
The application of this Protocol should impact as little as possible on the everyday life of communities both in Ireland and Northern Ireland, mindful that the rights and obligations of Ireland under the rules of the Union’s internal market and customs union must be fully respected.
The Joint Committee shall adopt before 1 July 2020 the detailed rules relating to trade in goods between the two parts of the single customs territory (for the permanent relationship).
There’s all to play for it seems – if the agreement survives.Unless there’s no deal or no Brexit, something like it would probably be implemented under any other arrangement.
The early Irish Times take is here
And the Guardian’s
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London