Myth-busting the Northern Ireland protocol

The UK Internal Market Bill has thrust the Northern Ireland protocol into the spotlight once again. On Monday, MPs are set to debate the part of the bill that would give ministers the power to disregard the UK’s obligations under the protocol and disapply international law. The government argues that these powers are necessary as a "safety net" to protect the UK against "extreme" interpretations of the protocol from the EU. But there are several misunderstandings – in the media, among MPs, and even ministers – about what the UK has actually signed up to, and what decisions are still to be made.

Myth 1: The protocol will be superseded by the future relationship

Unlike the 'backstop' – Theresa May’s version of the Northern Ireland protocol, the most recent agreement was not intended to be an insurance policy. The preamble to the November 2018 version stated “the Union's and the United Kingdom's intention to replace the backstop solution on Northern Ireland by a subsequent agreement”, and Article 1 of that draft stated that its provisions were “intended to apply only temporarily”. This text was removed from the version that Boris Johnson’s government negotiated.

The revised protocol could still be amended by a subsequent UK–EU treaty, and certain provisions rendered redundant, but the EU would need to be confident that a new free-trade agreement would eliminate the need for border controls on the island of Ireland by ensuring frictionless UK–EU trade. Given that Johnson’s government is aiming for a looser trading relationship with the EU than May had proposed, and is instead prioritising regulatory autonomy, it is unlikely these conditions will be satisfied.

There may be an exception on state aid, where agreement with the EU could allow Article 10 of the protocol (which sees the EU state aid regime apply to Northern Ireland) to be disapplied. However, this is only one aspect of the protocol. The crucial provisions on customs and regulations will almost certainly remain in force – deal or no deal.

Myth 2: The powers in the bill will prevent the EU from blockading Northern Ireland

The prime minister has suggested that the government's move was sparked by a fear that the EU could 'blockade' Northern Ireland by blocking agri-food exports from Great Britain to the EU, and by implication to Northern Ireland. If the EU does not add the UK to its list of 'third countries' in the event of a no-deal Brexit, then products of animal origin will not be accepted under EU law – and EU law will continue to apply in Northern Ireland in this area. 

The prime minister said that the bill contains “protective powers” in case the EU “fails to negotiate in good faith”. But, by the government’s own admission, the powers in the bill will not guard against the specific threats it has outlined. The bill only gives ministers powers to disregard the protocol in two specific areas:

1. to disapply or modify exit procedures for goods moving between NI and GB, the main purpose of which is to allow the government to waive the need for exit summary declarations – as required under EU customs rules applicable in Northern Ireland.
2. to make regulations to determine how EU state aid law in Northern Ireland is applied, including how it applies to state aid granted in other parts of the UK to businesses that may operate in Northern Ireland.

Nothing in the bill relates to the checks and processes required on goods moving GB–NI. So if an EU blockade of Northern Ireland is a genuine concern for the government – and it is worth noting that under the protocol it is both UK and NI officials who would be responsible for enforcing one – then this bill does nothing to address those concerns.

Myth 3: Check and processes will only be required on goods ‘at risk’ of moving into the EU

A common misconception about the protocol is that checks and processes will only apply to goods moving from GB to NI which are considered ‘at risk’ of then moving into the EU. This is only true of customs duties (tariffs).

Under the terms of the protocol, all goods entering Northern Ireland will need to comply with EU law in single market areas – including product requirements and agricultural standards. This will mean new paperwork and checks will be required on goods moving from GB to NI, even if they don’t end up in the rest of the EU.

If the UK and the EU agree a tariff-free free-trade agrement then customs duties will not be applied on any goods originating in the UK entering Northern Ireland. But customs declarations will be still required, and traders will need to comply with new rules of origin rules to prove their goods qualify for tariff free access.

Myth 4: The EU will decide which goods have to pay customs duties

The protocol states that the joint committee – the UK–EU body responsible for overseeing the Withdrawal Agreement – shall establish criteria for determining whether a good moving from Great Britain to Northern Ireland is not ‘at risk’. 

The wording of the protocol suggests that goods are to be considered ‘at risk’ unless proven otherwise, so if there is no decision in the joint committee the default position is all tariffs could apply on goods moving GB–NI. The UK government has said that it plans to take further powers in the Finance Bill to allow ministers to unilaterally establish the criteria for ‘at risk’ in the event that the joint committee does not make a decision. If it does so, this is likely to spark another row over the UK’s adherence to its international obligations and put the UK–EU relationship under yet more strain.