Boris Johnson’s denial that there will be checks in the Irish Sea harms preparations in the region – and could land the UK before the European Court of Justice, writes Jess Sargeant.
“We don’t like it, but we have to make it work”. That was the message that came loud and clear from a recent IfG trip to Belfast. Anxiety is rife over how the Northern Ireland protocol, a key part of Boris Johnson’s deal with the European Union, will affect the economic and constitutional future of the region. But there is also an acceptance that the agreement – which will effectively create a trade border in the Irish sea – is now enshrined in international law and will come into effect.
But time is short to ensure the protocol will be operational by the time it is due to come into force. Groups like Manufacturing Northern Ireland, Northern Ireland Retail Consortium and the NI Freight Transport Association are working together to offer practical solutions to lessen the impact of any new requirements, but this pragmatism has not been mirrored by the UK government. The prime minister continues to insist “emphatically” that there will be no checks in the Irish Sea; he has, however, been contradicted by other ministers.
And his claim looks impossible to square with the legal text of his deal, which requires the UK to apply EU rules on customs and regulations in Northern Ireland. So too does it jar with Johnson’s vision for the future relationship, in which Great Britain would diverge in those areas.
Whatever his motive – unionist assurance or negotiating tactic – it is hindering crucial preparations. With the clock ticking, the focus now should be on the practicalities, not massaging the messaging.
Johnson’s protocol was designed primarily to avoid a hard border on the island of Ireland. It replaced the “backstop” in Theresa May’s deal – which effectively kept the whole UK in a customs union with the EU unless a trade deal could be agreed. The protocol provides the outline of future customs and regulatory arrangements, although many of the specifics remain unknown.
The most extensive checks will be on goods travelling from Great Britain to Northern Ireland. These are aimed at protecting the integrity of the EU single market, given the open land border with the Republic of Ireland. Customs controls will be needed to ensure goods deemed ‘at risk’ of subsequently moving into the EU pay the appropriate duties. That means tariffs on UK goods if there is no EU–UK deal, and on goods that don’t qualify for tariff-free trade if there is.
Regulatory checks will be required to ensure goods comply with EU standards, unless derogations are agreed. The checks could be particularly extensive in the agri-food sector, where 100% of live animals and 50% of products of animal origin require physical inspection.
The UK government has committed to legislate to give Northern Ireland businesses “unfettered access” to the UK internal market, with the intention of reducing the extent of checks required on goods travelling from NI to GB. But some additional paperwork, such as exit summary declarations, will be required as part of the UK’s duty to enforce the EU Union Customs Code.
Michael Gove, as the minister responsible for the domestic implementation of Brexit, has admitted that there would be some “light-touch” administration of trade in both directions – while also announcing a ‘hardening’ of the UK border facing EU exporters. But much of the detail of the protocol has still to be filled out in the Joint Committee (the UK–EU body responsible for overseeing the Withdrawal Agreement). The decisions it makes, and the extent to which the EU trusts the UK to enforce its rules and its border, will determine how onerous the burdens will be.
But when the prime minister tells NI businesses to throw any customs forms “in the bin” he does nothing to inspire confidence in the UK government’s commitment to enforce the protocol. In response, the EU’s chief negotiator, Michel Barnier, has insisted that checks were an “indispensable” part of the agreement, while the EU’s draft negotiating mandate of a UK–EU deal states explicitly that negotiations are “premised on the effective implementation of the Withdrawal Agreement and of its three Protocols”.
Last year, the EU had promised a range of options to “de-dramatise” the checks, easing the burden on traders. That approach seems to have disappeared. Johnson’s refusal to acknowledge the reality of what has already been agreed will not help the UK get further flexibility.
The protocol will need to be operational by the end of the transition period – 31 December this year, unless an extension is agreed (which the prime minister has said he will not ask for). This will be huge task. New people and systems must be put in place to administer new customs and regulatory processes, along with increased capacity for physical inspections. Businesses must be ready to comply with any new requirements.
But until the prime minister acknowledges the extent – or even existence – of new checks, this work cannot begin in earnest. The government has announced plans for new border controls on GB–EU trade, with a £26m customs support scheme to help British business prepare. Northern Ireland is still waiting for similar support.
The longer this work on the new sea border is delayed, the greater the risk it won’t be ready in time. That would disrupt business in Northern Ireland and could land the UK before the European Court of Justice.
The people of Northern Ireland have accepted the reality of the situation they now find themselves in. The prime minister should do the same.