12.Articles 4 to 6 of the Protocol described the customs status of Northern Ireland and the customs rules that will apply there, with Article 4 stating that “Northern Ireland is part of the customs territory of the United Kingdom.” Article 5 set out the ways in which EU customs law will be applied in Northern Ireland, which are described in detail in this chapter. Article 6 explained how the UK internal market will be protected, including the commitment to unfettered access. Other aspects of the Protocol interact with those Articles, as described later in this chapter.
13.Article 5(1) stated that
No customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport, notwithstanding paragraph 3, unless that good is at risk of subsequently being moved into the Union [EU], whether by itself of forming part of another good following processing.
Article 5(2) explained that goods will automatically be considered to be ‘at risk’ unless they:
a)will not be subject to commercial processing in Northern Ireland; and
b)meet other criteria for determining their level of risk, to be agreed.
Both the definition of ‘commercial processing’ and the criteria for risk will be decided by the UK-EU Withdrawal Agreement Joint Committee (WAJC). The WAJC will consider factors such as the value and destination of the good and the potential for smuggling. In taking this decision, the WAJC “shall have regard to the specific circumstances in Northern Ireland.” The decisions to be taken by the WAJC are examined in paragraphs 28 to 37 later in this chapter.
14.Articles 5(3) (4) and (5) set out the areas of EU customs law that will apply to Northern Ireland. This applies the EU’s Union Customs Code in Northern Ireland. As stated in Article 12(1), however, UK authorities will implement and apply these laws in Northern Ireland. Furthermore, even when EU tariffs are applied to goods entering Northern Ireland, these tariffs will be paid to the UK and will not be remitted to the EU.
15.Article 5(6) specified the circumstances in which the UK can waive or reimburse tariffs incurred on goods moved into Northern Ireland, including “in respect of goods that can be shown not to have entered the Union.” However, this is subject to EU state aid limits, as set out in Article 10.
16.Article 6 addressed the protection of the UK internal market. Article 6(1) stated that
Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.
Unfettered access is not a legal term, and it was not clearly defined in the Protocol. Notably, the Protocol did not suggest that EU law will not affect movements of goods from Northern Ireland to Great Britain at all; rather, it stated that the EU laws listed in the Protocol will only be applied to these movements “to the extent strictly required by any international obligations of the Union.” This suggested that some restrictions would still apply.
17.The Protocol did not state that goods moving from Great Britain to Northern Ireland should have unfettered access in the same way as goods moving in the other direction. However, Article 6(2) stated that
Having regard to Northern Ireland’s integral place in the United Kingdom’s internal market, the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom.
The Joint Committee shall keep the application of this paragraph under constant review and shall adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.
18.At the time of its agreement, the Protocol was welcomed by many businesses in Northern Ireland as being preferable to the UK leaving the EU without a Withdrawal Agreement. Angela McGowan of CBI Northern Ireland told us:
We have supported the protocol, and we believe it has moved us away from a no-deal scenario […] It gives us the opportunity to create a good deal with Europe. Northern Ireland has welcomed it. We recognise that there are complexities with it, but we have to make it work.
While the avoidance of a north-south border and the commitment to unfettered access from Northern Ireland to Great Britain were welcomed by some commentators, some businesses told us that unimpeded movement in the opposite direction was also important. The Northern Ireland Retail Consortium said:
We have always argued that is necessary for unfettered access from NI to both the EU and GB markets to allow us to continue to provide NI and GB households with choice and affordability.
It is good to have access to both the RoI and EU markets, but this does not offset the costs of friction in access to/from the GB market.
Businesses also said they needed detail on how unfettered access would be achieved. The NIRC told us “This is better than no deal, but the position we are in at the minute does not give that unfettered access, and that is where we need the detail.”
19.On 20 May 2020, the Government published a Command Paper, The UK’s Approach to the Northern Ireland Protocol. This paper set out the Government’s policy on the implementation of the Protocol.
20.The Command Paper explained the Government’s understanding of what unfettered access should mean for goods moving from Northern Ireland to Great Britain:
Trade going from Northern Ireland to the rest of the UK…should take place as it does now. There should be no additional processes or paperwork and there will be no restrictions on Northern Ireland goods arriving in the rest of the UK - that is, there will be unfettered access, as provided for by the Protocol.
The Government stated that it will legislate to “guarantee unfettered access” by 1 January 2021 and that that means:
The commitment to legislating for unfettered access reinforced the commitment made in the New Decade, New Approach deal that restored the Stormont institutions in January. However, the Government has explained neither the nature nor the timetable for the introduction of the legislation to guarantee unfettered access. The Command Paper noted that Section 21 of the EU (Withdrawal Agreement) Act 2020 gave Ministers the power to make regulations to enable access for “qualifying Northern Ireland goods” and defining and identifying such goods. This may differentiate goods from Northern Ireland, which could qualify for unfettered access, from those originating in the Republic of Ireland or elsewhere. Goods which do not have this qualifying status may be subject to the UK’s customs and regulatory regime. It is therefore an important consideration that Northern Ireland goods can be easily distinguished from others, to ensure they have free access to the UK market while also protecting the integrity of the UK market. We examine in greater detail the Government’s policy on goods moving from Northern Ireland to Great Britain in Chapter 3.
21.For goods moving in the other direction, the Government stated that “we will not levy tariffs on goods remaining within the UK customs territory,” and that “only those goods ultimately entering Ireland or the rest of the EU, or at clear and substantial risk of doing so, will face tariffs.” In its use of the term “clear and substantial risk”, the Command Paper differed from the Protocol, which used the term “at risk.” It has been reported that the EU Commission will, by contrast, interpret the term “widely.” The Command Paper provided examples of goods movements that the Government believes are not at a clear and substantial risk of entering the EU Single Market, such as goods which arrive in Northern Ireland for processing before being re-exported back to Great Britain and goods which are delivered by suppliers in Great Britain for sale in Northern Ireland.
22.Although the Government’s position is that tariffs will not be levied, it acknowledged that goods moving from Great Britain to Northern Ireland will be subject to “some limited additional processes,” although “[these] will be conducted taking account of all flexibilities and discretion.” The Government confirmed that the UK will not require exit declarations, export declarations, or customs and regulatory clearance for goods leaving Great Britain for Northern Ireland. However, the paper acknowledged that some checks will be required on agri-food movements, building on checks that already take place in order to protect the island of Ireland’s status as a Single Epidemiological Unit.
23.The Command Paper stated that “there will be no new physical customs infrastructure.” This is contradicted by the stated need for some existing infrastructure for agri-food goods to be expanded in order to meet the increased requirement for agri-food checks outlined above. Existing facilities at Warrenpoint and the Belfast ports and airports will be maintained, and in some cases expanded. The paper added that “there will be no construction at points of entry where no plant or animal health checks are currently carried out.” We examine in more detail the Government’s approach to goods moving from Great Britain to Northern Ireland in Chapter 4.
24.Business groups in Northern Ireland welcomed the publication of the Command Paper and its acknowledgement of the UK’s obligations under the Protocol, while maintaining that questions remained. The NI Business Brexit Working Group commented that “there is a need to move from ambitions to technical detail very quickly.” Its response paper poses more than 60 outstanding questions on how the Protocol would work in practice. An analysis of the NI Business Brexit Working Group paper by Dr Katy Hayward of The Queen’s University of Belfast described it as “a critical juncture in recognising the ‘headline’ changes to occur in this area,” but added that “many important aspects and effects of the Protocol are, however, merely skimmed over” and that a large number of questions that had been posed by businesses at the time of the Protocol’s publication remained unanswered. We explore some of these specific challenges in chapters 3, 4 and 5 of this report.
25.The Government’s optimistic aspiration to facilitate unfettered access set out in the Command Paper on the revised Northern Ireland Protocol is welcome. The acid test for the Government will be the extent to which it can negotiate the translation of that aspiration into a functional reality.
27.The Government must clarify the process and criteria by which Northern Ireland goods will be given qualifying status and so benefit from unfettered access. If the Government’s policy includes the certification of goods by businesses, it must set out what actions businesses will need to take no later than 1 October 2020 to allow businesses time to prepare.
28.While the Protocol and the Command Paper provided a partial picture of how goods will move between Northern Ireland and Great Britain from the end of the transition period, a number of questions remain. Some of these are matters for the UK Government to determine (see Chapter 3), but others will be decided by the UK-EU Withdrawal Agreement Joint Committee (WAJC). The WAJC is established by Article 164 of the Withdrawal Agreement. It is the body responsible for the implementation and application of the Agreement, including the Northern Ireland Protocol. It comprises representatives from both the UK and the EU, and it is co-chaired by the Chancellor of the Duchy of Lancaster, Michael Gove MP, and the EU Vice-President for Interinstitutional Relations and Foresight, Maroš Šefčovič. Operating below the WAJC are a number of Specialised Committees comprised of UK and EU officials, including the Committee on issues related to the implementation of the Protocol on Ireland/Northern Ireland.. These Committees do not take decisions, but they can make recommendations to the Joint Committee for decision. In addition, the Northern Ireland Protocol established a Joint Consultative Working Group on the implementation of the Protocol, which is described as “a forum for the exchange of information and mutual consultation.”
29.The WAJC can:
Adopt decisions amending this Agreement, provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement.
The EU Commission proposed amendments to the Agreement at the most recent WAJC meeting on 12 June 2020. The amendments included several additions to the list of EU laws applying in Northern Ireland under the Protocol. The UK Government accepted some of the amendments, but not those amending the Protocol. It has not explained its decision and its position on the proposed amendments.
30.The WAJC performs specific functions in respect of the Northern Ireland Protocol. On customs, the Protocol tasked the WAJC with setting criteria to determine whether a good entering Northern Ireland from another part of the UK will be subject to EU tariffs. These criteria are:
a)what constitutes commercial processing of a good; and
b)whether a good is at risk of moving onward into the EU Single Market.
In taking both decisions, the WAJC “shall have regard to the specific circumstances in Northern Ireland. The WAJC is also tasked with making other decisions relating to the Protocol. For example, when the EU passes a new act that falls within the scope of the Protocol, the WAJC is responsible for deciding whether to add that act to the Protocol. This could potentially affect the operation of the customs regime in Northern Ireland in the future, if EU customs law were to change or if a change in another area of EU law created new regulatory divergence between the UK and the EU that required the implementation of new controls on goods arriving in Northern Ireland.
31.The WAJC is also required to keep Article 6 of the Protocol (on protection of the UK internal market) “under constant review,” and “shall adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.” It can review Article 8 (VAT and excise) and adopt measures “taking into account Northern Ireland’s integral place in the United Kingdom’s internal market.”
32.The Command Paper identified other matters where the Government believes a decision should be reached by the WAJC. For example, the Government argued that the Joint Committee should agree to waive the requirement for exit summary declarations and export declarations for goods leaving Northern Ireland for Great Britain.
33.In their public comments, the Government and the EU Commission expressed different views on the role of the WAJC in implementing the Protocol. The UK’s co-chair of the WAJC, the Chancellor of the Duchy of Lancaster, stated that WAJC meetings are an opportunity to “develop the Protocol.” By contrast, the Commission has made clear its view that “the Protocol on Ireland/Northern Ireland cannot be renegotiated, including in the Joint Committee.” It is therefore unclear whether the Commission would accept that the WAJC has a role to play in taking decisions beyond those specifically provided for in the Protocol, and whether it would consider it appropriate for it to take a decision such as the one described by the UK in the Command Paper. It is noteworthy, however, that the Commission itself proposed amendments to the Withdrawal Agreement that would have altered the Protocol at the WAJC meeting of 12 June 2020.
34.By agreeing the Protocol, both parties affirmed their recognition of the unique circumstances in Northern Ireland and the need to protect the Belfast/Good Friday Agreement. The preamble to the Protocol emphasised the importance of “maintaining the integral place of Northern Ireland in the United Kingdom’s internal market” of “avoiding controls at the ports and airports of Northern Ireland to the extent possible”, and ensuring that “the application of this Protocol should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland.” Article 1, which sets out the objectives of the Protocol, stated that its purpose is to “address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South co-operation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions.” Both parties also agreed to take the circumstances in Northern Ireland into account when taking decisions on how the Protocol will be implemented. Article 5(2) stated that when considering the definition of ‘at risk’ goods, the WAJC “shall have regard to the specific circumstances in Northern Ireland.” Article 6(2) stated that “the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and the other parts of the United Kingdom”. It instructed the Joint Committee to “keep the application of this paragraph under constant review” and to “adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.”
35.Meetings of the WAJC took place on 30 March and 12 June. The Specialised Committee on the Protocol has met once, on 30 April. It is understood that the Specialised Committee will meet again on 16 July, and that the Joint Committee will next meet in September.
36.We are concerned that, in spite of the importance and urgency of the work to be done by the Joint Committee and Specialised Committee in order to implement the Protocol, they have met a combined total of three times.
37.Both the UK and the EU will need to engage constructively to make the Protocol work. The Protocol was created to address the specific circumstances of Northern Ireland. In line with the Protocol, the Joint Committee should therefore be a problem-solving forum where the best interests of Northern Ireland come first and the operation of the all-island economy is taken into account.
38.The WAJC makes decisions that will have significant implications for Northern Ireland, the UK and the EU. However, opportunities to scrutinise those decisions are limited. The meetings of the WAJC and its specialised committees are confidential. Agendas, minutes and decisions of the Committee are not published, although the rules allow the co-chairs discretion to do so (and the provisional agendas of WAJC meetings have been published in advance). The UK and the EU have both released press statements following each meeting, from which a partial account of the discussions can be interpreted. Even less information is available on the Specialised Committee on the Northern Ireland Protocol, for which neither agendas, minutes nor recommendations have been made available.
39.Some parliamentary scrutiny has been conducted of the UK Government’s role in the WAJC. The UK’s co-chair, the Chancellor of the Duchy of Lancaster, has appeared before Select Committees including the Northern Ireland Affairs Committee, and he has answered questions about the WAJC at these appearances. He has also, following a letter from the Chairs of eight House of Commons Select Committees (including the Northern Ireland Affairs Committee), committed to providing Written Ministerial Statements both before and after each WAJC meeting. As Written Statements are not subject to oral examination by Members, however, the Government controls whether and when it can be questioned on its approach to the implementation of the Protocol in the Joint Committee. The Specialised Committee is subject to even less scrutiny. The Chancellor of the Duchy of Lancaster’s position in his letter to Select Committee Chairs was that “Specialised Committees cannot take decisions, so it is appropriate for Parliamentary oversight to focus on the work of the WAJC.”
40.Effective parliamentary scrutiny of decision-making in the Joint Committee and Specialised Committees will require active facilitation by Government, because the relevant papers and records are not in the public domain.
41.In consultation with the Liaison Committee, the Government must agree routinely to share the relevant agendas, summary minutes and minutes of the Joint Committee and the specialised committees with the appropriate parliamentary Select Committees and Committees of the Northern Ireland Assembly.
42.Elected representatives and civil society exercise a degree of influence over the Government’s approach to discussions in the WAJC and its specialised committees. Article 14 of the Northern Ireland Protocol stated that the Specialised Committee shall consider proposals from the North-South Ministerial Council and north-south implementation bodies set up under the Belfast/Good Friday Agreement, the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland. However, businesses and trade unions cannot directly influence or inform discussions on the design of the new customs system. The Northern Ireland Retail Consortium argued that:
the Joint Committee needs to talk to business. It needs to talk about the evidentiary threshold on how it is going to judge what is at risk and what is not at risk. You have to remember that what the joint committee decides will pretty much mould how our business looks for the foreseeable future.
We do not feel there has been enough business input yet, but we will need to be able to talk to the specialised committee, which will have more of a role in looking at the needs of business. We still need to be able to give evidence to that committee, in the same way as we are giving evidence today, on solutions and challenges, providing it with the problems and possible solutions. As of yet, we have not seen that.
43.In its Command Paper, the Government committed to establishing a Business Engagement Forum “to put forward proposals and provide feedback on how to maximise the free flow of trade,” but it is not clear how this will operate in practice and what connection, if any, the new forum will have to the work of the WAJC and its related committees.
44.The Government must establish a mechanism by which Northern Ireland businesses, representatives, trade unions, academics and other interested parties can engage with the Joint Committee, Specialised Committees and the Joint Consultative Working Group.
45.Clarification is required on how the implementation of the Protocol will be scrutinised beyond the end of the transition period. The WAJC can decide to adopt new acts of EU law into the Protocol’s annexes. Such decisions will alter the law in part of the UK and potentially create new regulatory divergence between Northern Ireland and Great Britain. Article 15(3) of the Protocol stated that the EU shall inform the UK about planned changes to EU law that would have effect under the Protocol, and that the Working Group can also be used by the UK and the EU to exchange information about implementation. However, no mechanisms have been set up to allow the Parliaments of the UK to scrutinise those decisions and the laws to which they give effect.
46.Regulatory divergence between Great Britain and Northern Ireland may arise due to not only new EU laws, but new UK laws. Following the end of the transition period, the UK will no longer be bound by EU laws and will be able to legislate in ways that may create divergence between UK and EU law. In cases where the Protocol continues to apply EU law in Northern Ireland, this will create new divergence between Great Britain and Northern Ireland. The extent to which divergence is possible will depend on the nature of the future relationship between the UK and the EU, which could include commitments to regulatory alignment in some areas. However, the Government repeatedly stated that its objective in the future relationship negotiations is to maximise the UK’s regulatory autonomy. It said that “we will not agree to any obligations for our laws to be aligned with the EU’s.” The Government’s preferred agreement is one in which regulatory divergence between Great Britain and Northern Ireland is at least possible.
47.The Government has not made any proposals on how scrutiny of the Protocol might work post-transition. In a letter to Select Committee Chairs in May 2020, the Chancellor of the Duchy of Lancaster, stated that “the Government will prepare plans for scrutiny of the application after the end of the transition period of the Northern Ireland Protocol at a later date, when we are nearer to that point and have more clarity on what that may involve.” The Government has also not made any proposals on how the Northern Ireland Protocol will be considered when new laws are made in the UK. One approach, proposed by the Institute for Government, would be for future legislation to include a Northern Ireland Protocol impact statement.
48.The Northern Ireland Protocol creates new possibilities of future legal divergence between Northern Ireland and Great Britain. The extent of this divergence will depend, in part, on the outcome of talks on the future relationship, and, in part, on future policy decisions taken by the UK Government. Both the UK Parliament and the Northern Ireland Assembly will need to be able to monitor and scrutinise the Protocol beyond the end of the transition period.
49.The Government must establish mechanisms for the reporting and scrutiny of future regulatory divergence arising from the Northern Ireland Protocol after the transition period. At a minimum, those mechanisms should include a requirement that all future UK legislation include a Northern Ireland Protocol Impact Statement. This statement should:
The Government should establish a mechanism that allows Parliament and the Northern Ireland Assembly to be informed whenever the EU, in the Joint Consultative Working Group, notifies the UK of planned EU legislation within the scope of the Protocol.
10 HM Government, , 18 October 2019
11 HM Government, , 18 October 2019
12 HM Government, , 18 October 2019
13 HM Government, , 18 October 2019, Art 5(6)
14 HM Government, , 18 October 2019
15 HM Government, , 18 October 2019
16 HM Government, , 18 October 2019
17 HM Government, , 18 October 2019
18 HM Government, , 18 October 2019
20 Northern Ireland Retail Consortium ()
22 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020
23 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020, pp. 9
24 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020, pp. 9
25 HM Government, , 8 January 2020, pp. 47
26 , Section 21
27 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020, pp. 9
28 HM Government, , 18 October 2019, Article 5
29 Financial Times, , 7 May 2020
30 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020, pp. 9
31 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020, pp. 12
32 HM Government, , 18 October 2019, Article 5
33 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020, pp. 14
34 NI Business Brexit Working Group, , 5 June 2020
35 NI Business Brexit Working Group, , 5 June 2020
36 Dr Katy Hayward, , 22 May 2020
37 HM Government, , 19 October 2019
38 HM Government, , 19 October 2019, Article 165
39 HM Government, , 18 October 2019, Article 15
40 HM Government, , 19 October 2019, Article 164(5)(d)
41 European Commission,
42 European Scrutiny Committee, , Twelfth Report of Session 2019–21, 24 June 2020
43 HM Government, , 18 October 2019, Article 5
44 HM Government, , 18 October 2019, Article 13(4)
45 HM Government, , 18 October 2019, Article 6(2)
46 HM Government, , 18 October 2019, Article 8
47 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, , 20 May 2020, pp. 10
48 , Q25
49 EU Commission, , 30 April 2020
50 HM Government, , 18 October 2019
51 Twitter, [Brussels Correspondent, the Guardian], 7 July
52 HM Government, , 19 October 2019, Annex VIII, Rules 7–10
54 E.g. Cabinet Office, , 12 June 2020;EU Commission, , 12 June 2020
55 , 24 March 2020
56 , 24 March 2020
57 HM Government, , 18 October 2019
58 HM Government, , 18 October 2019, Article 13(4)
59 HM Government, , 18 October 2019
60 HM Government, , 27 February 2020
61 , 27 May 2020
62 Institute for Government, , 24 May 2020 pp. 59
Published: 14 July 2020