Brexit: the Withdrawal Agreement and Political Declaration Contents

Chapter 4: Protocol on Ireland/Northern Ireland

Basic principles and conditions

141.The Agreement includes a Protocol on Ireland/Northern Ireland dealing with the so-called backstop arrangements. The Protocol seeks to maintain “continued North-South cooperation” and avoid a “hard border” on the island of Ireland, while protecting the 1998 Belfast/Good Friday Agreement “in all its dimensions”.

142.The opening provisions set out a number of basic principles and conditions. These include:

143.Emphasis is placed on the Protocol’s temporary nature. The stated objective of the Withdrawal Agreement “is not to establish a permanent relationship between the Union and the United Kingdom” (emphasis added), and its arrangements will “apply unless and until they are superseded, in whole or in part, by a subsequent agreement”.142 To this end, the UK and the EU undertake to “use their best endeavours” to conclude an agreement that supersedes the Protocol before the transition period expires (currently December 2020).143 However, as we explore in Chapter 5, we have concerns about how realistic it is to expect to conclude an agreement in that timeframe.

144.We welcome the Government’s and the EU’s commitment to use their “best endeavours” to agree an alternative agreement addressing the UK’s future relationship with the EU before the end of the transition period. If successful, this will render recourse to the so-called backstop arrangement for Ireland/Northern Ireland unnecessary. However, this is an ambitious timetable, even allowing for one extension of the transition period.

The rights of individuals and the Belfast/Good Friday Agreement

145.Article 4 of the Protocol, headed “Rights of individuals”, deals with the UK’s undertakings to ensure “no diminution of rights, safeguards and equality of opportunity”, as set out in Section 6 of the 1998 Belfast/Good Friday Agreement, including with respect to six EU Directives that implement the EU’s principle of equal treatment between men and women.144

146.The UK also promises to “continue to facilitate” the work of the bodies created by the 1998 Agreement “in upholding human rights and equality standards”. These include the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and the Joint Committee of representatives of the Human Rights Commission of Northern Ireland and Ireland.

Common Travel Area

147.Our December 2016 report on Brexit: UK-Irish relations outlined the history and operation of the Common Travel Area (CTA) between the UK and Ireland. We stressed the vital importance of the full retention of its provisions post-Brexit.145

148.Article 5 of the Protocol seeks to protect the CTA arrangements, “while fully respecting” the rights conferred on individuals by EU law. It provides that the UK will ensure that the CTA can continue to apply, in such a way as not to affect Ireland’s responsibilities under EU law to respect the free movement of EU citizens and their family members “to, from, and within Ireland”.

149.We have repeatedly emphasised the historic importance of the Common Travel Area as a basis for cooperation between the UK and Ireland. We therefore welcome the explicit commitment to its retention contained in the Withdrawal Agreement.

The “single customs territory” and the movement of goods

UK-wide obligations

150.At the heart of the so-called backstop is a “single customs territory” containing the EU and the UK,146 which will operate until the future UK-EU relationship “becomes applicable”.147

151.Under the arrangement, the UK would be obliged to abide by the EU’s rules governing the prohibition of all customs duties on imports and exports (and charges having equivalent effect) for trade in goods between the EU and the UK.148 For trade in goods between the UK (as a member of the “single customs territory”) and third countries, the UK would also have to “align” with all EU customs tariffs and “harmonise” its commercial policy with the EU’s Common Commercial Policy to the extent necessary to give effect to the “single customs territory”,149 including commitments on tariff rate quotas established under the WTO’s 1994 General Agreement on Tariffs and Trade (GATT) and the EU’s trade defence regime.150

152.In order to ensure the “proper functioning” of the “single customs territory” and “the maintenance of [a] level playing field”151 within it, the UK would also undertake to implement EU standards on taxation (including a number of EU Directives that support the “principles of good governance in the area of taxation”),152 and not to fall below whatever EU standards apply at the end of the transition period (the provisions refer to “non-regression”153) in respect of environmental protection154 and labour and social standards.155 While the backstop remains in place, the UK also agrees to match the EU’s rules on State owned undertakings,156 and, as they develop, the rules on State aid157 and competition law.158 Additional responsibilities with regard to Northern Ireland are set out below in paragraphs 165–172.

153.The EU’s rules on fisheries and aquaculture are not covered by the Protocol and will not apply within the “single customs territory”. But the EU and the UK both promise “to use their best endeavours” to conclude and ratify a separate agreement covering these matters before July 2020.159

154.If, by the end of the transition period (including any extended transition period), the UK and the EU have failed to reach agreement on future relations, then to avoid a hard border on the island of Ireland, the Protocol creates a “single customs territory” comprising the UK and the EU. The UK would be required to abide by the EU’s rules on the prohibition of customs duties, and to align with the EU’s Common Commercial Policy, to the extent necessary to give effect to the “single customs territory”, including tariffs on external trade with third countries.

155.The UK would also undertake to ensure a level playing field within the “single customs territory” across a range of associated EU policies, including environmental protection law, labour and social standards, State aid, and competition law. We note that the UK’s obligation to match developments in the areas of State aid and competition law would continue for as long as the backstop remained in force.

156.The Protocol on Ireland/Northern Ireland would thus tie the UK closely to EU law across these associated policy areas. Moreover, UK membership of the “single customs territory” and the inherent requirement that the UK aligns with the EU’s Common Commercial Policy (including tariffs on external trade) would significantly curtail the UK’s freedom to pursue an independent trade policy.

157.We also note that fisheries and aquaculture are specifically excluded from the “single customs territory”, and that the UK and EU promise to use their best endeavours to negotiate a separate agreement dealing with these matters.

Institutional oversight of the Protocol

158.The Protocol would impose a number of institutional commitments designed to police the UK’s adherence to the principles of EU law that would apply to it during the Protocol’s application. The additional responsibilities applying to Northern Ireland are discussed in paragraphs 165–172 below.

159.On taxation, the UK’s compliance would be overseen by the Joint Committee.160 The UK would ensure the availability of “effective” administrative and judicial proceedings against violations of principles of environmental protection and labour and social standards.161 Additionally, for environmental protection, the UK would have to establish a public body empowered to monitor, report and oversee its application.162 In contrast, labour and social standards would be monitored by “an effective system of labour inspections”.163

160.The UK would have to establish an “independent authority” to preserve a “robust and comprehensive framework for State Aid control that prevents undue distortions of trade and competition”.164 This authority would operate without “political or external influence”165 and cooperate closely with the European Commission, including on all decisions it “intends to adopt”.166 The authority would enjoy, in the UK, the same powers and functions as the Commission.167 Similar provisions would apply in relation to competition law.168

161.The UK would also be obliged to ensure that its courts and tribunals enjoyed powers to review and enforce compliance with its State aid responsibilities,169 and that effective remedies and sanctions applied for enforcing EU competition law.170

162.While the backstop remained in place, the UK would be required not to fall below EU standards applying at the end of the transition period on environmental protection and social and labour standards. UK compliance with these EU standards would remain the responsibility of national institutions and/or the Joint Committee.

163.In contrast, the UK’s commitments with regard to State aid and competition law would go considerably further. The Protocol proposes a system of very close cooperation between the UK’s authorities and the European Commission, which reflects the additional burden of having to match EU developments in these areas.

164.If recourse to the backstop were to prove necessary, this would effectively weave the UK into the EU’s State aid and competition rules. It would also leave the relevant UK institutions subordinate to the European Commission, which is responsible for policing and providing institutional oversight of the EU’s rules on State aid and competition law.

Additional responsibilities for the UK regarding Northern Ireland

165.The Protocol would place further regulatory and technical responsibilities deriving from EU law on the UK with respect to Northern Ireland. These would include:

166.The Protocol would also require Northern Ireland’s compliance with a host of EU technical rules and product standards set out across the 68 pages of Annex 5 to the Protocol on Ireland/Northern Ireland.177 Article 11 of the Protocol would keep Northern Ireland within the Single Electricity Market on the island of Ireland.178 In our 2017 report on Brexit: energy security we supported preservation of the Single Electricity Market, but noted that if EU energy legislation were to continue to apply in Northern Ireland, the Government would “need to consider whether to devolve additional powers to the Northern Ireland Assembly”.179

167.Given the different regulatory arrangements that would apply in Great Britain and Northern Ireland, the Protocol would introduce additional measures to supervise and enforce Northern Ireland’s compliance with the relevant aspects of EU law. The Protocol would also confer full jurisdiction on the CJEU to oversee the operation of the EU law applying to Northern Ireland; including the power to hear applications for preliminary rulings180 submitted by the Courts of Northern Ireland;181 the UK would enjoy the right to participate in these proceedings as if it were a Member State. The EU’s executive agencies would also enjoy their normal powers within Northern Ireland.182 In spite of this, Northern Ireland would not have any representation in the EU Institutions, including the European Parliament.183

168.Also in recognition of the different regulatory and technical regimes operating between Great Britain and Northern Ireland, the Protocol includes a provision that seeks to ensure “unfettered market access for goods”184 moving from Northern Ireland to Great Britain. It requires the EU and the UK to “use their best endeavours” to facilitate the movement of these goods, and the Joint Committee is enjoined to keep the issue “under constant review”.185

169.If the Protocol on Ireland/Northern Ireland were to come into effect, its provisions would apply the EU’s customs legislation to Northern Ireland, and would impose additional technical and regulatory responsibilities on the UK with regard to Northern Ireland, including in respect of the free movement of goods. Taken together, these rules would bind Northern Ireland even more closely to EU law than those applying to Great Britain within the “single customs territory”. Moreover, Northern Ireland’s compliance with these EU rules would be policed and enforced by the European Commission, the EU’s executive agencies and the CJEU, without the additional institutional privileges inherent in EU membership, save for the UK’s right to participate in Northern Ireland-based CJEU proceedings.

170.The introduction of different regulatory and technical rules on opposite sides of the Irish Sea would carry risks for the UK’s internal market, as evidenced by Article 7 of the Protocol, which appears to envisage goods exported from Great Britain to Northern Ireland being subject to regulatory checks. We highlight the importance of the Joint Committee’s responsibility to keep this issue under constant review.

171.The differing technical and regulatory rules that would apply in Great Britain and Northern Ireland, if recourse to the Protocol is necessary, would also raise profound implications for the movement of goods between Great Britain and the EU 27. There would not be a frictionless border for goods between Great Britain and the EU, unless this was agreed in the negotiations on the future relationship, or the EU and the UK Government agreed to align Great Britain with the additional regulatory rules applying to Northern Ireland. Hence, although Northern Ireland would benefit from a free movement of goods regime, this would not apply to goods transported between the EU 27 and Great Britain. These would potentially be subject to regulatory checks, which could have a significant impact on UK ports.

172.We have previously recommended that Northern Ireland should, as part of the future UK-EU relationship, remain part of the Single Electricity Market on the island of Ireland. We welcome the fact that the provisions of the Protocol show that the UK and EU negotiators are aware of the importance of this issue, which should also figure in negotiations on the future UK-EU relationship. We draw attention to our earlier conclusion that such an outcome might require the devolution of additional powers to the Northern Ireland Assembly once the devolved institutions are reinstated.

Other areas of North-South cooperation

173.In order to maintain the “necessary conditions for continued North-South cooperation”, Article 13 of the Protocol would require it to be implemented and applied “in full respect of” EU law in the following areas: environment, health, agriculture, transport, education and tourism, energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport. The operation of this provision would be kept “under constant review” by the Joint Committee.

174.We have, in previous reports, repeatedly highlighted the crucial importance to UK and Irish citizens, particularly those living in border areas, of maintaining North-South cooperation. For instance, in our report on Brexit: UK-Irish relations we called for a reaffirmation of the UK’s and Ireland’s “continued support for existing cross-border cooperation”,186 and in our report on Brexit: reciprocal healthcare, we called on both sides “to treat healthcare as a priority in the final settlement of issues relating to the island of Ireland”.187

175.We note that Article 13 of the Protocol, on cross-border cooperation, covers a wide range of areas of EU competence, including some areas where the EU’s competence is merely to support action by the Member States. Notwithstanding the breadth of this provision, we reiterate the conclusions reached in earlier reports, as to the vital importance of cross-border cooperation to the lives of UK and EU citizens, particularly those living close to the Irish land border.

Reviewing the backstop

176.Article 20 of the Protocol, headed ‘Review’, sets out a process through which the provisions of the Protocol, in whole or in part, might be brought to an end. The EU or UK would first notify the other party of their view that the Protocol should cease to apply and, within six months of such a notification, the Joint Committee would meet “at ministerial level to consider the notification”. The Joint Committee would be able to seek an opinion from the institutions created by the 1998 Belfast/Good Friday Agreement.

177.Following this consideration, a decision would be taken by the UK and the EU jointly in the Joint Committee, having regard to the objectives listed in Article 1 of the Protocol, and acting “in full respect of Article 5 of the Withdrawal Agreement” (the good faith provision). Although it is not spelled out directly in the Protocol, if the parties were unable to reach an agreement on this issue, then under the general provisions relating to dispute resolution contained in Part 6 of the Withdrawal Agreement, either party could institute the arbitration procedure (described above, paragraph 53–61).

178.In a debate in the House of Commons on 3 December 2018, the Attorney General, Rt Hon Geoffrey Cox QC MP, addressed the question of whether the UK could unilaterally withdraw from the backstop. He accepted that there was “no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down.” On the “good faith” obligation, he acknowledged that if a dispute between the UK and the EU were to be referred for arbitration, “clear and convincing evidence would be required to establish a breach of that obligation”.188

179.Article 20 of the Protocol is clear that there would be no way for one party to the Agreement to bring the Protocol on Ireland/Northern Ireland to an end on a unilateral basis. Any such decision would be made in the Joint Committee, by mutual consent, having regard to the objectives set out in Article 1 of the Protocol and the duty of good faith set out in Article 5 of the Withdrawal Agreement. Should this provision lead to an intractable dispute between the parties, either side could institute the arbitration procedure set out in Part 6 of the Withdrawal Agreement.


139 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 1(2)

140 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 1(1)

141 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 1(3)

142 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 1(4)

143 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 2(1)

144 See Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Annex 1.

145 European Union Committee, Brexit: UK-Irish relations (6th Report, Session 2016–17, HL Paper 76)

146 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 6(1) states that: “accordingly, Northern Ireland is in the same customs territory as Great Britain”.

147 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 6(1)

148 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 2 of Annex 2

149 Article 4 of Annex 2 of the Protocol on Ireland/ Northern Ireland. Under the EU’s Common Commercial Policy, the EU Member States confer responsibility on the European Commission to negotiate, on their behalf, the EU’s external trade policy.

150 In circumstances where the European Commission believes that imports are unfairly damaging EU based producers, for example by undercutting them with low prices, it can use its trade defence policy to impose tariffs and restrict imports by employing so-called anti-dumping measures.

151 Withdrawal Agreement (25 November 2018) Protocol on Ireland/Northern Ireland, Article 6

152 See Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 1 of Annex 4.

153 For example, Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 2 of Annex 4, states “With the aim of ensuring the proper functioning of the “single customs territory”, the Union and the United Kingdom shall ensure that the level of environmental protection provided by law … is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the Transition period”.

154 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 2 of Annex 4

155 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 4 of Annex 4

156 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 25 of Annex 4

157 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 7 of Annex 4

158 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 16 of Annex 4

159 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Articles 6(1) and 2 July 2020 is the date by which the parties to the Agreement must have decided whether or not to extend the transition period.

160 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 1(4) of Annex 4

161 See Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Articles 3(1) and 6 of Annex 4.

162 See Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Articles 3(2) and 6 of Annex 4.

163 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 6 of Annex 4

164 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 7 of Annex 4

165 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland Article 9(1) of Annex 4

166 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 10 of Annex 4

167 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 9(3) of Annex 4

168 While the UK is not obliged to set up a new independent authority dealing with Competition Law, the UK’s existing Competition Law Body, the Competition and Markets Authority, will be obliged to work similarly closely with the EU Commission. See Withdrawal Agreement (25 November 2018) Protocol on Ireland/Northern Ireland, Articles 22-23 of Annex 4.

169 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 11 of Annex 4

170 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland Article 24 of Annex 4

171 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 8(1)

173 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 6(2)

174 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland Article 9 and Annex 6

175 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 12

176 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 8(2)

177 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 10

178 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 11

179 European Union Committee, Brexit: energy security (10th Report, Session 2017–19, HL Paper 63), para 150

181 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 14(4)

182 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 14(5)

183 It has been suggested that this may raise concerns under the European Convention on Human Rights, particularly in the light of the case of Matthews v UK, Application no. 24833/94, (1999) 28 EHRR 361.

184 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland Article 7(1)

185 Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Article 7(2)

186 European Union Committee, Brexit: UK-Irish relations (6th Report, Session 2016–17, HL Paper 76), para 262

187 European Union Committee, Brexit: reciprocal healthcare (13th Report, Session 2017–19, HL Paper 107), para 124

188 HC Deb, 3 December 2018, col 547




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