Brexit Made Simple – Issue 35, EU TECHNICAL NOTE ON IRELAND / NORTHERN IRELAND PROTOCOL
What is the issue?
The European Commission, on behalf of the EU27 member states, has published a “technical note” on how it believes the border between the Republic of Ireland and Northern Ireland should operate at the end of the post-Brexit transition period.
The “Protocol on Ireland / Northern Ireland” was a crucial part of the Withdrawal Agreement, approved in October 2019, which outlined the terms of the United Kingdom’s departure from the European Union.
The Protocol’s purpose was to seek to avoid the introduction of a “hard” border on the island of Ireland, preserve the integrity of the EU Single Market and enable Northern Ireland to remain in the UK customs territory.
The European Commission’s technical note was “transmitted” to the European Parliament and the European Council last Thursday (30 April 2020).
A copy was not sent to the UK Government in advance of the document being made public.
Why was the technical note produced?
It seems to have been sparked by frustrations from the EU negotiators with what they regard as the UK’s failure to engage on such an important issue.
The EU27 are acutely aware that the transition period is due to end on 31 December 2020 and the UK continues to insist that it will not apply for an extension.
The note states in its introduction: “The time to implement the Protocol is short, and practical implementation measures must start immediately so that the Protocol can be operational by 1 January 2021.”
What are its key points?
The document essentially serves as a reminder to the UK of its obligations in relation to the Protocol. It also makes clear that the commitments made cannot be renegotiated.
These include:
Alignment with EU rules: Northern Ireland will remain aligned to a limited set of EU rules, notably related to goods, and the EU’s Customs Code will apply to all goods entering Northern Ireland, thereby avoiding customs checks on the land border with the Republic of Ireland.
Checks and controls will take place on goods entering Northern Ireland from the rest of the United Kingdom, including border inspection posts to ensure that necessary sanitary and phyto-sanitary controls are carried out.
EU customs duties will apply to goods entering Northern Ireland unless those goods are not at risk of entering the EU's Single Market. No customs duties will be payable if it can be demonstrated that goods entering Northern Ireland from the rest of the UK are not at risk of entering the EU's Single Market.
The technical note also includes a series of specific requests for information from the UK Government, as well as “detailed timelines, on the implementation measures it intends to take as a matter of urgency.”
The document adds: “The Commission also expects the United Kingdom to enter into technical implementation discussions with the relevant Commission services immediately.”
Was there any response from the UK?
UK Prime Minister Boris Jonson’s official spokesman was dispatched to make a statement, as follows:
“The European Commission has chosen to publish this technical note to set out its own views on the implementation of the Northern Ireland protocol.
“It was not shared at recent meetings with the UK, nor has it been agreed by the UK Government.
“Most strikingly, the note appeared to miss out the fundamental objective of the Northern Ireland Protocol.
“There is no mention of the Belfast Good Friday Agreement, or the peace process anywhere in this seven-page document.
“We are committed to complying with our legal obligations under the Protocol, just as we expect the European Union to comply with theirs.
“We will continue to take forward discussions on the implementation of the Protocol.”
“It seems to be the Commission’s decision to publish this note, having not shared it at recent the meetings with the UK, or having agreed it with the UK Government.”
Why is the UK Government so upset?
Because it has been effectively been “called out” by the EU27 who share the view that the UK has not seriously engaged in the trade deal talks, and not advanced the provisions of the Protocol.
Most - and probably all - EU member states are happy to extend the Brexit transition phase whilst the world deals with the coronavirus crisis, but the UK has insisted it will not agree to this.
Tensions have also increased after the UK Government refused two requests to allow the EU to open an office in Northern Ireland following the closure of the European Commission's representation in Belfast at the end of January.
The EU wants to maintain a physical presence as a means of ensuring the Protocol is being properly implemented.
Last February, in a letter to his EU counterpart, Sir Simon McDonald, the most senior civil servant at the UK Foreign Office, wrote: “The UK Government supports the continued presence of EU offices in Edinburgh and Cardiff, alongside London and Belfast, given the longstanding relationship the EU has with all devolved nations."
What happens next?
The EU-UK trade negotiations are due to resume by video link on Monday 11 May. But, with just one further round of talks scheduled before the 30 June deadline to extend the Brexit transition period, tensions are running high – and the prospects for agreement appear low.
Dr Jason Aldiss BEM
Managing Director, Eville & Jones
6 May 2020
You can follow me on Twitter @JasonAldiss