RTE News’s Europe editor Tony Connelly has published two extremely useful stories on essential detail. Does the Ireland/NI Protocol of the Withdrawal Agreement threaten north-south cooperation? Does the proposed customs arrangement for Northern Ireland amount to a border in the Irish Sea that threatens its constitutional position? How the rules would actually work is explained.
This new customs territory would therefore be a combination of the EU’s customs territory, set out in EU law, and the UK’s customs territory.
But there were extremely important caveats to this one backstop.
There would be extra provisions for Northern Ireland so that it remained aligned to the rules of the single market, and while the North would be in the UK’s customs territory, it would be subject to what is called the Union Customs Code, ie the EU’s customs rule book.
Why was this?
A senior EU official explains that the current EU customs union is a combination of a basic customs union and a regulatory union (ie, where harmonised, common rules apply).
“The UK will only be part of the basic customs union, whereas Northern Ireland will be part of the basic customs union and the regulatory union to avoid a hard border,” the official said.
So the extra provisions applying to Northern Ireland – but not to the rest of the UK – would include the regulation of industrial goods, the so-called sanitary and phytosanitary (SPS) rules for veterinary controls, rules on the production and marketing of certain agricultural products, VAT and excise, and state aid rules.
For that reason, it is clear that the UK in the negotiations conceded that there would have to be regulatory controls on goods going from Great Britain to Northern Ireland, because they would not be subject to the same EU regulations.
Here it seems London has largely accepted the “de-dramatised” controls long advocated by Michel Barnier.
What would then happen to a product being sent from Liverpool to Belfast?
Under the backstop, the “importer” would fill in a transit declaration in Liverpool.
If it was an industrial good there would be a barcode on the container to be scanned either on the ferry or at the transit port (ie, Dublin).
There would be checks at the destination in Northern Ireland, but these checks would not be systematic, in other words, they would only occur if a risk had been identified by the authorities.
The regulatory compliance checks, to ensure goods comply with EU safety standards would be done through “market surveillance authorities”, for example consumer organisations that test for the safety of, say, lighters, at the company premises.
It looks like the only checks that would actually happen at ports and airports would be those SPS checks for live animals and animal products.
At present 10% of consignments are checked anyway, but this would rise to 100% in a backstop scenario, but, as mentioned, falling if the EU and UK can conclude a separate bilateral veterinary treaty.
Overall, one way of looking at it is that the EU customs union is a delivery system for the complete range of regulatory checks that come with the single market.
Since most of those rules will still apply in Northern Ireland under the backstop, then the Union Customs Code must also apply.
That, at least, is the legal logic of the treaty, but it will be politically very hard to swallow for the DUP.
Officials close to the negotiations insist that every effort has been made to reassure London and the DUP on two counts: that nothing here is a threat to the constitutional integrity of the UK, and secondly that both sides will make their “best endeavours” to ensure the backstop is not needed.
Part of that is the rendezvous clause which provides for a stocktaking in July 2020.
At that point we will be one year into the transition, and the free trade negotiations will have been under way.
Both sides will assess if that FTA is ready and fit for purpose – to ensure no hard border – and if not there will be two other options: an extension of the transition by an as yet indeterminate period, or the temporary customs backstop, with the extra provisions listed above.
This is intended to address Brexiteer worries that, with the backstop legally binding and in the Withdrawal Agreement, the EU will simply sit back and take their time in negotiating the future free trade deal in good faith.
EU Ombudsman Emily O’Reilly has called on the European Commission to publish a key document spelling out all the areas of North-South co-operation under the Good Friday Agreement that are at risk because of Brexit. The taoiseach Leo Vardakar agrees but adds it’s a matter for the UK and the EU as a whole.
The confidential document deals with the so-called mapping exercise, which became a key plank of the Irish Government’s strategy to highlight the risks to the Good Friday Agreement.
According to Ms O’Reilly’s investigation, the commission argued that “the disclosure of the requested document, which originated from the UK government, against the UK’s express wishes, would undermine the trust between the UK and the commission at a sensitive time in the negotiations.”
According to her final report, the commission had told the complainant: “Public disclosure of the requested document during the ongoing negotiations, against the opposition of the United Kingdom authorities, at a stage where both sides are still exploring ‘flexible and imaginative’ solutions, would significantly restrict the European Commission’s ability to collaborate with the United Kingdom in an atmosphere of trust and obtain useful information from the United Kingdom authorities.”
Ms O’Reilly, who was given access to the document, told the complainant in her report that it covered “a wide array of cross-border topics such as trade, animal health, tourism, the environment, cross-border fraud prevention, the mutual recognition of professional qualifications, and farming.
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