Brexit: the revised Withdrawal Agreement and Political Declaration Contents

Chapter 4: Protocol on Ireland/Northern Ireland

Basic principles and conditions

117.The aim underlying the Protocol, stated in terms recalling the December 2017 Joint Report by the EU and UK negotiators,112 is 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”.113

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

119.These basic principles remain the same as in the December 2017 Joint Report, and in the Agreement published in November 2018.

Duration

120.The Secretary of State for Exiting the EU, Rt Hon Stephen Barclay MP, told us in October 2019 that the “indefinite nature” of the Protocol contained in the 2018 Withdrawal Agreement (the so-called ‘backstop’) had been Parliament’s “central concern”.117 Notwithstanding the references in the previous Protocol to its temporary nature, if the UK and the EU, acting in good faith, “simply could not come to an agreement on the future relationship”, there would have been no way to withdraw from it. This was compounded by “the lack of consent and the democratic issue”. He said that it was “clear, not only from the DUP but from other prominent voices within the unionist community”, that there was “concern with the backstop as it was constituted”.118

121.In the revised Protocol, accordingly, the requirement in the November 2018 text that both sides should consent to its termination, along with references to its temporary nature and the promise by both parties to use “their best endeavours” to replace it, have been removed.119 In their place there is a requirement for periodic democratic consent in Northern Ireland to the continued application of the relevant Articles of the Protocol.

122.Dr Katy Hayward, Reader, Queen’s University Belfast, told us that the removal of the explicit commitment to replace the Protocol, given the “context of the sensitivities in Northern Ireland”, was “highly political and constitutionally significant”, because the “future status of Northern Ireland is being decided at this point”.120

The rights of individuals and the Belfast/Good Friday Agreement

123.Article 2 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 Part 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.121

124.The UK undertakes 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.122

125.We welcome Article 2 of the Protocol, on safeguarding the rights of individuals, as set out in the Belfast/Northern Ireland Agreement, and note that these provisions are unchanged from the November 2018 text.

Common Travel Area

126.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.123

127.Article 3 of the Protocol, also unchanged from the 2018 text, seeks to protect the CTA’s 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”.124

128.We have repeatedly emphasised the 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 latest iteration of the Withdrawal Agreement.

Customs and the movement of goods

129.The latest text of the Protocol introduces new provisions dealing with the customs arrangements for Northern Ireland after the UK leaves the EU.

Customs territory of the UK and goods moving from Great Britain to Northern Ireland

130.Article 4 of the Protocol says that Northern Ireland is “part of the customs territory” of the UK, and can therefore be included within the territorial scope of any future free trade agreements concluded by the UK, “provided that [these agreements] do not prejudice” the application of the Protocol.125 The Protocol also says that “nothing” it contains “shall prevent the United Kingdom from concluding agreements” with third Countries that “grant goods produced in Northern Ireland preferential access” to these countries’ markets, “on the same terms as goods produced” elsewhere in the UK.126

131.Article 5, in part, deals with customs duties for goods moving into Northern Ireland from Great Britain and from outside the EU. For any good moving from Great Britain, the Protocol says that “no customs duties shall be payable”, unless the good “is at risk of subsequently being moved” into the EU either on its own or, “following processing”, as part of another product. Similarly, for goods moving into Northern Ireland from outside both the EU and the UK, UK customs duties will be applied unless the good is “at risk of subsequently being moved into the EU”, whether by itself or following processing. No duties will be payable on the movement of UK residents’ personal property.127

132.Article 5(2) explains that goods brought into Northern Ireland from outside the EU will be considered at risk of subsequently being moved into the EU unless it can be established by the importer that:

(a)it will not be subject to commercial processing128 in Northern Ireland; and

(b)it fulfils the criteria established by the Joint Committee tasked with overseeing the operation of the Withdrawal Agreement.

133.Before the end of the transition period the Joint Committee must establish criteria governing the operation of these provisions dealing with goods at risk of moving into the EU. In so doing, it must “have regard to the specific circumstances in Northern Ireland”, while taking into account, among other matters:

(a)The final destination and use of the good;

(b)The nature and value of the good;

(c)The nature of the movement; and,

(d)The incentive for undeclared onward-movement into the Union, in particular incentives resulting from the customs duties payable (a general catch-all term covering potential criminal activity such as smuggling).129

134.The precise rules governing the payment of customs duties on goods brought into Northern Ireland either from the rest of the UK or from outside both the UK and EU are yet to be determined by the Joint Committee. But the term “at risk” appears to cover a greater number and range of goods than would have been covered by terms such as “likely” or “potentially”.

135.We call on the Government to publish its assessment of the proportion, value, type and volume of goods entering Northern Ireland from the UK and from outside the EU on which customs duty will be payable in accordance with Article 5 of the Protocol.

Implications of these rules

136.In October 2019 Jim Harra, Interim Chief Executive, HM Revenue and Customs, outlined the implications of these provisions to the House of Commons Treasury Committee. He explained that for goods moving from Great Britain to Northern Ireland there will be two potential hurdles. First, “Any goods going into Northern Ireland from Great Britain will have to comply with EU regulatory standards.”

137.Second, for goods categorised by the Joint Committee at risk of being subsequently moved into the EU, “The UK will [have to] make sure that a tariff equivalent to the EU tariff is applied to such goods.”130 This requirement will “necessitate declarations being made for goods moving from Great Britain to Northern Ireland”, in order to “ensure that regulatory standards are being met” and, for goods at risk of being moved into the EU, that “the correct tariff is charged”—even if that tariff is set at zero.131

138.Mr Harra affirmed that this “does not mean Northern Ireland is part of the EU’s customs territory”, as the controls necessary to police the rules “will be administered by HMRC”. He accepted, however, that the rules did “mean administrative procedures, including a declaration, will be required for movements from Great Britain to Northern Ireland”.132

139.Mr Harra was pressed on the practical implications of these rules for GB-based businesses exporting to Northern Ireland and was asked in particular whether these requirements would feel like a commercial border. He replied: “Yes, there will be declarations, which will feel like a customs declaration, because they will contain information that is used for regulatory purposes”. He added that HMRC did “not envisage … a significant level of physical checks of goods” but warned that such checks “could be required … to give effect to EU regulatory standards”.

140.Notwithstanding the statement in Article 4 of the Protocol that Northern Ireland is part of the customs territory of the UK, the practical implication of the Protocol’s provisions on customs will be the introduction of a regulatory border for goods travelling from Great Britain to Northern Ireland. The introduction of such a border within the UK will have financial and political consequences.

EU Customs responsibilities applicable to Northern Ireland

141.The Protocol confirms that, for the purposes of future free trade agreements negotiated by the UK, Northern Ireland is part of the customs territory of the UK,133 but Article 5(3) also imposes an obligation on the “UK in respect of Northern Ireland” to apply the EU’s customs legislation (the so-called EU customs code), as defined by Article 5(2) of Regulation 952/2013. The Joint Committee will, however, agree rules under which fisheries and aquaculture products brought into the Union by vessels flying the flag of the UK but registered in Northern Ireland will be exempt from duties.134

142.The customs duties collected by the UK’s authorities pursuant to this provision “are not remitted to the Union”.135 Scope is instead provided for the UK to reimburse duties on goods brought into Northern Ireland;136 waive customs debts in respect of goods brought into Northern Ireland;137 provide for the circumstances under which customs duties are reimbursed on goods “shown not to have entered the Union”;138 and to “compensate undertakings to offset” the application of these provisions.139

Implications for goods moving from Northern Ireland to Great Britain

143.Article 6 says that “nothing” in the Protocol will “prevent the UK from ensuring unfettered market access” for goods travelling from Northern Ireland to Great Britain. It adds that the provisions of EU law applied to Northern Ireland via the Protocol “which prohibit or restrict the exportation of goods” should “only be applied … to the extent strictly required by any international obligations of the Union”.140 The Article also requires the EU and the UK to “use their best endeavours” to facilitate the movement of goods from Northern Ireland into Great Britain, while taking “into account their respective regulatory regimes”.141

144.Again, the Joint Committee tasked with overseeing the operation and application of the Agreement, is enjoined to keep this matter “under constant review”, and can adopt “appropriate recommendations” to avoid controls at Northern Ireland’s ports and airports.142

145.Jim Harra told the Treasury Committee on 22 October 2019 that the Agreement “explicitly provides that the UK can ensure unfettered access for goods” moving from Northern Ireland to Great Britain. He continued: “Article 6 … provides that the only prohibitions and restrictions that will apply” on these goods “are those required to fulfil international obligations”. He recognised that there would be “some administrative process, an electronic form, which will apply to goods moving from Northern Ireland to Great Britain”, but said that the detail was yet to be settled: “In the coming months, we need to work both within the UK and together with the EU to understand precisely what those administrative processes will be.”143

146.With regard to the cost of each of these declarations, Mr Harra said that HMRC had predicted “between £15 and £56 … depending on the complexity of the declaration and the nature of the arrangement you use to make it”.144 When it was put to him that HMRC did not know what the precise impact of these provisions would be, he replied “that is correct”, because during the transition period “we have to go through a process with the EU to agree what these procedures are … it is impossible to be definitive”. He stated that it “will be intended to keep the paperwork as light as possible while addressing the obligations that we have agreed with the EU that we will meet in terms of protecting its market”.145 But he confirmed that “we certainly will not know the detail of the practical operational procedures” until the Protocol is implemented.146

147.Dr Katy Hayward, while acknowledging the Protocol’s statement that “Northern Ireland is part of the customs territory of the UK”, said that the provision requiring Northern Ireland to apply the EU’s customs legislation147 meant that it was “de facto applying the Union customs code, with all that implies”. While there was scope in the Protocol for the UK to become the monitoring authority of this aspect of the Agreement,148 she warned that “what that looks like and how it is all managed will need to be decided by 1 July 2020”. This was, she said, “an extraordinarily short period of time for basically changing an arrangement within the United Kingdom for the movement of goods within the United Kingdom”.149

148.We also asked the Secretary of State whether Northern Ireland businesses would, in line with the EU’s customs code, have to complete export declarations when sending goods to Great Britain. The Minister initially replied: “No. We have said, in terms of from Northern Ireland to GB, that it will be frictionless.”150 He later clarified his answer: “Exit summary declarations will be required in terms of Northern Ireland to GB.”151 We note the Prime Minister’s repeated statements that there will be no such controls.

149.There is tension at the heart of the customs provisions of the Protocol. On the one hand, Northern Ireland is obliged to apply the EU’s customs code to the movement of goods from Northern Ireland to Great Britain. On the other, the Protocol says that it does not prevent the UK from ensuring unfettered access for goods moving from Northern Ireland into Great Britain’s market.

150.Given the Janus nature of these customs arrangements, and HMRC’s confirmation that much of the detail is yet to be settled or even fully understood by the two sides, it is perhaps not surprising that there have been conflicting statements from within Government.

151.In our view, as part of Northern Ireland’s obligations under the Protocol to apply the EU’s customs code, exit summary declarations are likely to be required for goods moving from Northern Ireland to Great Britain, unless and until the parties agree alternative arrangements to facilitate the movement of such goods. Although this requirement will be far less onerous that the requirements applying to goods moving in the other direction, it will have an economic cost for Northern Ireland-based businesses.

152.The agreement includes an undertaking by both parties to the Withdrawal Agreement to use their best endeavours to agree arrangements to facilitate the movement of goods from Northern Ireland to Great Britain. There remains, however, a risk that reaching agreement on the detailed operation of this aspect of the Withdrawal Agreement’s arrangements will be time-consuming and, given the Government’s insistence that there will be no extension of the transition period, particularly challenging.

153.We note that the potentially contentious arrangements for dealing with the duties applicable to fisheries and aquaculture products brought into the Union by vessels flying the UK flag but registered in Northern Ireland have been passed to the Joint Committee for resolution.

154.Notwithstanding these uncertainties, the proposed arrangements on the movement of goods contained in this iteration of the Protocol on Ireland/Northern Ireland will, when it comes into effect, achieve the key objective of avoiding a ‘hard border’ on the island of Ireland.

155.To achieve this aim, these new arrangements effectively keep Northern Ireland in the EU’s single market for goods, with all that this implies for regulatory alignment, customs, institutional supervision and checks on the movement of goods between Great Britain and Northern Ireland. There is thus a price to be paid, in particular with regard to the integrity of the UK’s internal market. How high a price remains to be seen, since the responsibility for sorting out the detail of these contentious issues has been conferred upon the Joint Committee.

156.The consequences, if the Joint Committee is unable to reach agreement on these issues, are not clearly spelled out in the Protocol. It is therefore critical that both the UK and the EU approach these issues with sensitivity, taking full account of the concerns of both unionist and nationalist communities in Northern Ireland.

VAT and excise

157.The Protocol applies a range of EU rules on VAT and excise to Northern Ireland.152 It says that “in respect of Northern Ireland” the UK authorities will be responsible for the implementation of these rules, including the “collection of VAT and excise duties”, adding that “revenues resulting from transactions taxable in Northern Ireland shall not be remitted to the Union”. It also states that the UK may apply “VAT exemptions and reduced rates” that are applicable in Ireland to goods taxable in Northern Ireland.153

158.The Joint Committee will discuss the implementation of this aspect of the Agreement “regularly”, including any excise reductions and/or VAT exemptions. Where it is “appropriate” the Joint Committee can adopt measures for the “proper application” of these rules. It can also review the application of this provision, “taking into account Northern Ireland’s integral place in the United Kingdom’s internal market” and adopt “appropriate measures” as necessary.

159.Aodhán Connolly, the Director of the Northern Ireland Retail Consortium, told us that VAT was a “great concern for our members”. The VAT provisions set out in the November 2018 Protocol had been “one of things we as business could actually say we got”, but he warned that “the situation is just not as clear” under the revised text. He argued that the latest VAT rules “were desperately complicated” and concluded that this aspect of the Agreement “falls into the ‘need more information and need it now’ category”.154

160.HMRC Interim Chief Executive Jim Harra confirmed to the Commons that under these new arrangements “Northern Ireland would stay aligned with the EU’s VAT rules” in relation to goods.155 The Secretary of State told us that “what has been agreed is the principle that the Joint Committee will consider reductions and exemptions to VAT”.156 He confirmed in writing that the “specific practical arrangements” on VAT “will be the subject of discussions within the Joint Committee”.157 Again, the consequences, if the Joint Committee is unable to agree on these issues by 31 December 2020, are unclear.

161.The VAT and excise rules proposed in the Protocol, in particular the rules dealing with excise reductions and/or VAT exemptions, are complex, and we note the concern of witnesses that businesses in Northern Ireland urgently need further explanation of how they will operate in practice.

162.We acknowledge the Secretary of State’s statement that the specific practical arrangements governing this aspect of the Protocol on Ireland/Northern Ireland will be addressed by the Joint Committee, but are concerned that this key aspect of the post-Brexit arrangements for Northern Ireland’s interaction with both the EU and Great Britain will be left to the Joint Committee to resolve after the Withdrawal Agreement has been agreed and ratified.

Other regulatory and technical responsibilities

163.A number of provisions in the Protocol impose additional regulatory and technical obligations on Northern Ireland. These will include:

164.The Protocol will also require Northern Ireland’s compliance with a host of EU technical rules and product standards set out in the 38 pages of Annex 2 to the Protocol and summarised in Box 1.162

Box 1: List of technical rules and product standards dealt with in Annex 2 to the Protocol on Ireland/Northern Ireland

Annex 2 to the Protocol lists the areas in which Northern Ireland will be required to remain aligned with EU product/technical standards. These areas are as follows:

  • general customs;
  • the protection of the Union’s financial interests;
  • trade statistics;
  • general trade related aspects;
  • trade defence instruments;
  • Regulations on bilateral safeguards;
  • licensing of pharmaceutical products;
  • goods—general provisions;
  • motor vehicles, including tractors;
  • lifting appliances;
  • gas appliances;
  • pressure vessels;
  • measuring instruments;
  • construction products and machinery;
  • electrical and radio equipment;
  • textiles and footwear;
  • cosmetics and toys;
  • Recreational craft;
  • explosives and pyrotechnics;
  • medicinal products;
  • medical devices;
  • substances of human origin;
  • chemicals;
  • pesticides and biocides;
  • waste;
  • environment and energy efficiency;
  • marine equipment;
  • rail transport;
  • food—general, hygiene, ingredients, contact material, and, other matters;
  • animal feed—products and hygiene;
  • Genetically Modified Organisms;
  • live animals, germinal products and products of animal origin;
  • animal disease and zoonosis control;
  • animal identification;
  • animal breeding;
  • animal welfare;
  • plant health;
  • plant reproductive material;
  • official controls and veterinary checks;
  • sanitary and phytosanitary standards;
  • intellectual property;
  • fisheries and aquaculture;
  • ‘other’, including provisions relating to crude oil, tobacco, cultural goods, medals and coins, crystal glass, weapons, rough diamonds, and goods used for capital punishment, torture or cruel and inhuman or degrading treatment.

Source: Withdrawal Agreement (19 October 2019), Annex 2 to the Protocol on Ireland/Northern Ireland

165.Article 9 of the Protocol, alongside Annex 4, will keep Northern Ireland within the Single Electricity Market on the island of Ireland.163 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”.164

Implementation, application, supervision and enforcement

166.As a Party to the Withdrawal Agreement, the UK will be responsible for implementing and applying the provisions of EU law that will be applied to Northern Ireland by the Protocol.165 EU representatives will have a right to be present at “any activities of the United Kingdom related to the implementation and application of provisions of Union law made applicable” by the Protocol. EU and UK authorities will “exchange information … on a monthly basis” on the customs arrangements pertaining to goods moving from Great Britain into Northern Ireland and those governing goods at risk of subsequently moving into the EU.166

167.The Protocol will 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 rulings167 submitted by the courts of Northern Ireland;168 the UK will enjoy the right to participate in these proceedings as if it were a Member State. The EU’s executive agencies will also enjoy their normal powers within Northern Ireland.169

168.The Protocol will bind Northern Ireland closely to the EU. Northern Ireland’s compliance with EU rules will 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.

169.The introduction of different regulatory and technical rules on opposite sides of the Irish Sea would, like the proposed customs arrangements, carry risks for the UK’s internal market.

170.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 UK and EU negotiators have remained aware of the importance of this issue, but reiterate that such an outcome might require the devolution of additional powers to the Northern Ireland Assembly once the devolved institutions are reinstated.

171.In the event that the Northern Ireland Assembly does not consent to the continuation of the arrangements contained in the Protocol, Northern Ireland’s continued participation in the Single Electricity Market could be at risk.

Other areas of North-South cooperation

172.Article 11 of the Protocol, which replicates Article 13 of the 2018 text, will require the Protocol, “in full respect of Union law”, to be implemented in such a way as to maintain the “necessary conditions for continued North-South cooperation” 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 will be kept “under constant review” by the Joint Committee.

173.We have 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”,170 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”.171 We also reflected on the potential obstacles to pursuing wanted criminals in Ireland without the European Arrest Warrant.172

174.Article 11 of the Protocol covers North-South cooperation in 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. The breadth of this provision underlines the vital importance of cross-border cooperation to the lives of UK and EU citizens, particularly those living close to the Irish land border.

Common provisions and safeguards

175.Article 13 deals with Common Provisions and essentially addresses the practicalities of the Protocol’s operation. Matters covered include:

176.Article 16, headed safeguards, enables either party to the agreement to take unilaterally “appropriate safeguards” if the application of the Protocol leads to “serious economic, societal or environmental difficulties”. Such safeguards must be “restricted” in their scope and “strictly necessary” to remedy the precise situation.179 A procedure for the Joint Committee to resolve the imposition of safeguards180 is set out in Annex 7 to the Protocol.

177.Article 17 imposes an obligation on both parties to counter fraud and other illegal activities affecting either’s financial interests.

Oversight of the Protocol

178.A “Specialised Committee” will facilitate the “implementation and application” of the Protocol;181 liaise with the institutions created by the 1998 Belfast/Good Friday Agreement dealing with North/South cooperation and the protection of rights;182 discuss any matters raised by the parties to the Agreement that “gives rise to a difficulty”;183 and make recommendations to the Joint Committee regarding the functioning of the Protocol.184

179.In correspondence, the Secretary of State, Rt Hon Stephen Barclay MP, explained that the Specialised Committee will “sit under” the Joint Committee, will “consider issues” arising under the Protocol and report them to the Joint Committee. He confirmed that it will be “attended by UK and EU representatives and it will be for each side to decide the composition of their delegation”.185

180.A “Joint consultative working group” made up of EU and UK “representatives” will also be established, and will “serve as a forum for the exchange of information and mutual consultation”,186 but without the power to issue “binding decisions”.187 It must meet at least once a month.188

181.As we have noted, various references throughout the Protocol confer upon the Joint Committee (which will oversee the implementation and application of the Withdrawal Agreement in its entirety) specific tasks with regard to the operation of the Protocol. These include:

(a)Deciding the criteria under which goods moving into Northern Ireland from the UK, or outside the EU, will be considered at “risk of subsequently being moved into the Union”;189

(b)Keeping under “constant review”, in the context of goods moving West to East across the Irish Sea, the EU and the UK’s negotiation of the rules to protect the UK’s internal market;190

(c)Establishing the conditions under which fishery and aquaculture products will be exempt from duties;191

(d)Discussing “regularly” and policing the implementation of the rules on VAT and excise;192

(e)Overseeing the impact of the Protocol’s operation on the “other areas of North-South cooperation” listed in Article 11 of the Protocol;193

(f)Setting out the practical arrangements under which EU officials will be present alongside the UK authorities responsible for implementing and applying the EU law applied by the Protocol within Northern Ireland;194

(g)Addressing the ramifications for Northern Ireland of subsequent EU legislation that falls within the scope of the Protocol but does not amend or replace legislation listed in its Annexes;195

(h)Considering recommendations from the Specialised Committee on the functioning of the Protocol;196

(i)Policing, where necessary, the imposition by the EU or the UK of any safeguards introduced to address “serious economic, societal or environmental difficulties”;197 and,

(j)In the event that the Northern Ireland Assembly decides not to extend the trade arrangements set out in the Protocol, making recommendations to the EU and the UK on necessary measures, taking into account the 1998 Belfast/Good Friday Agreement.198

182.Dr Katy Hayward pointed to the “uncertainty” inherent in the Protocol because “so many decisions to be made” have been left to the Joint Committee.199 Aodhán Connolly was concerned that “we do not even know” how the Joint Committee will be “constituted”.200

183.It was, Dr Hayward said, “very significant” that the Joint Committee “in effect becomes a managing body for the withdrawal agreement but, very specifically the protocol”. She suggested that its role had been “greatly increased by this new protocol”, arguing that “its decisions will … have very direct implications for NI-GB relations on practical matters”.201

184.The Joint Committee will play an important role in the operation and application of the Protocol on Ireland/Northern Ireland. This role has been substantially enhanced in the latest text of the Protocol, yet no corresponding changes have been made to the governance arrangements provided for elsewhere in the Withdrawal Agreement to accommodate this expanded role.

185.Against this backdrop, the concerns we have expressed about the absence of any provision for democratic oversight of the Joint Committee, and over the lack of transparency in its working practices, acquire still greater force.

186.Many contentious decisions relating to the Protocol’s application, for example, decisions on the practical operation of the trade rules governing the movement of goods between Northern Ireland and Great Britain; on the potential duties payable on fisheries and aquaculture products; and on the operation of the Protocol’s VAT and excise rules, have been referred to the Joint Committee, to resolve behind closed doors, after the parties have agreed and ratified the Withdrawal Agreement.

187.This underlines the critical importance both of re-establishing the devolved institutions in Northern Ireland, and of ensuring that the Northern Ireland Assembly, like the UK Parliament, has the information and powers it needs to scrutinise the work of the Joint Committee effectively and hold ministers to account. We call on the Government to set out how it plans to achieve this outcome, as a matter of urgency.

The consent mechanism

188.The Government and the EU have negotiated a new provision for the Northern Ireland Assembly to express its consent to the continued operation of the trade aspects (Articles 5–10) of the Protocol.202

189.Two months before the end of an “initial period”203 of four years after the transition period introduced by the Withdrawal Agreement expires, the UK will seek the Assembly’s view on these arrangements “in a manner consistent with the 1998 Agreement”. In other words, assuming the transition period ends on 31 December 2020 (as stated in the Conservative Party Manifesto), the UK Government will have to seek the Assembly’s views on extension of the Protocol’s provisions no later than 31 October 2024.

190.The Protocol says that the UK retains the unilateral right to decide the precise decision-making process.204

Box 2: Declaration by the Government concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland/Northern Ireland

At the time that the Government published the revised Withdrawal Agreement it also issued a ‘unilateral declaration’ detailing its interpretation of the consent mechanism set out in the Protocol. It includes contingency arrangements if, at the time that the deadline arrives for the Northern Ireland Assembly to express its view, Northern Ireland’s devolved institutions are, as now, suspended.

The declaration affirms that the “objective of the democratic consent process” in the Protocol “should be to seek to achieve agreement that is as broad as possible in Northern Ireland and, where possible, through a process taken forward and supported by a power sharing Northern Ireland Executive which has conducted a thorough process of public consultation”. It continues that this should “include cross-community consultation, upholding the delicate balance of the 1998 Agreement, with the aim of achieving broad consensus across all communities to the extent possible”.

The Government undertakes to provide appropriate assistance to the Northern Ireland executive in “any prior consultation with businesses, civil society groups, representative organisations (including of the agricultural community) and trade unions; and to do the same for Members of the Legislative Assembly, if at the time that consent is sought, neither the Northern Ireland executive or the Legislative Assembly are operating”.

The declaration emphasises that the process for seeking consent to the ongoing operation of the Protocol on Ireland/Northern Ireland will have no bearing on the “constitutional status of Northern Ireland”, which remains subject to the provisions of the 1998 Belfast/Good Friday Agreement.

Paragraph 1 commits the Government to legislate for the requisite “democratic consent process”. Paragraph 2 sets out the Government’s promise to notify the relevant Northern Ireland officials of the date of any vote and the outcome to the EU. Paragraph 3 reflects the process set out in the Protocol. Paragraph 4 sets out a mechanism under which “any Member of the Legislative Assembly” can table a motion for the consent process where one “has not been proposed by the First Minister and deputy First Minister, acting jointly”.

Paragraphs 5 and 6, headed ‘Alternative process’, enjoins the UK Government to “provide for an alternative democratic consent process in the event that it is not possible to undertake the democratic consent process in the manner provided”. Such an alternative process must permit “democratic consent to be provided by Members of the Legislative Assembly if the majority of the Members of the Legislative Assembly, present and voting, vote in favour of the continued application of Articles 5 to 10 of the Protocol on Northern Ireland and Ireland in a vote specifically arranged for this purpose”.

Source: HM Government, Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland / Northern Ireland (19 October 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840232/Unilateral_Declaration_on_Consent.pdf [accessed 18 December 2019]

191.If in expressing its view, a “majority of Members of the Northern Ireland Assembly” vote in favour of continued application of the trade aspects of the Protocol, they will be extended for a “subsequent period” of four years.205 If the Assembly’s decision in addition reflects “cross-community support” then the arrangements will be extended for a “subsequent period” of eight years. The Protocol defines “cross-community support” as either “a majority of those Members of the Legislative Assembly present and voting, including a majority of the unionist and nationalist designations”, or a “weighted majority (60%) of Members … including at least 40% of each of the nationalist and unionist designations present and voting”.206 Further votes will follow at the end of each subsequent period.

192.In the event that consent is provided by a simple majority but without cross-community support, paragraphs 7–9 of the declaration state that the UK Government will commission an “independent review into the functioning of the Northern Ireland Protocol and the implications of any decision to continue or terminate alignment on social, economic and political life in Northern Ireland”. Such a review will make recommendations on a way forward and will conclude within two years of the vote.

193.If the Assembly does not express its consent, then the trade arrangements set out in the Protocol will cease to apply to Northern Ireland two years after the “initial” or, as the case may be, “subsequent” period expires. In this eventuality, the Joint Committee will make recommendations to the UK and the EU on necessary measures, which must take into account the obligations imposed by the 1998 Belfast/Good Friday Agreement.

194.The Secretary of State described the inclusion of a consent mechanism as the “overarching change” the Government had secured in its renegotiation of the Protocol. In his view, it creates a “shared incentive to minimise [the] burdens and impacts” created by the application of the trade rules proposed in the Protocol.207 He argued that “there is a strong interest” for the EU to make the trade rules set down in the Protocol “work in the most proportionate and pragmatic way because it is subject to consent by the Northern Ireland Assembly at the end of four years”.208

195.The inclusion of a mechanism enabling the Northern Ireland Assembly periodically to express its continued consent to the operation of the trade arrangements proposed in this iteration of the Withdrawal Agreement, is, as the Secretary of State suggested, a key difference between this Agreement and the one proposed in November 2018.

196.We welcome the inclusion of a consent mechanism, but note that the political situation in Northern Ireland, where the Assembly has not met in full for more than a thousand days, remains unstable. We repeat the plea made in our 2016 report Brexit: UK-Irish relations, that political stability in Northern Ireland must not be allowed to become ‘collateral damage’ of Brexit.


112 Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of the negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, (8 December 2017) https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf [accessed 26 November 2019], paras 42–56

113 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 1(3)

114 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 1(2)

115 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 1(1)

116 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 1(3)

117 Oral evidence taken on 21 October 2019 (Session 2019), Q 1 (Rt Hon Stephen Barclay MP)

118 Oral evidence taken on 21 October 2019 (Session 2019), Q 5 (Rt Hon Stephen Barclay MP)

119 See the Withdrawal Agreement (25 November 2018), Protocol on Ireland/Northern Ireland, Articles 1(4) and 2(1)

120 Oral evidence taken on 29 October 2019 (Session 2019), Q 1 (Dr Katy Hayward, Ivor Ferguson and Aodhán Connolly)

121 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Annex 1 headed Provisions of Union Law Referred to in Article 2(1)

122 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 2(2)

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

124 Withdrawal Agreement (19 October 2019), the Protocol on Ireland/Northern Ireland, Article 3(2)

125 A similar provision deals with the inclusion of Northern Ireland within the territorial scope of the UK’s Schedule of Concessions dealt with under the General Agreement on Tariffs and Trade 1994.

126 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 4

127 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(1)

128 Processing is defined as “any alteration of goods, any transformation of goods in any way, or any subjecting of goods to operations other than for the purpose of preserving them in good condition or affixing marks, labels, seals or any other documentation to ensure compliance with any specific requirements”. Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(2)

129 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(2)

130 If and when the UK and EU agree a free trade agreement this may be zero. On goods coming from third countries a tariff may be payable.

131 Oral evidence taken before the Treasury Committee, 22 October 2019 (Session 2019), Q 265 (Jim Harra, Penny Ciniewicz, Ruth Stanier)

132 Oral evidence taken before the Treasury Committee, 22 October 2019 (Session 2019), Q 265 (Jim Harra, Penny Ciniewicz, Ruth Stanier)

133 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 4

134 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(3)

135 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(6)

136 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(6)(a)

137 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(6)(b)

138 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(6)(c)

139 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(6)(d)

140 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 6(1)

141 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 6(2)

142 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 6(2)

143 Oral evidence taken before the Treasury Committee, 22 October 2019 (Session 2019), Q 265 (Jim Harra, Penny Ciniewicz, Ruth Stanier)

144 Oral evidence taken before the Treasury Committee, 22 October 2019 (Session 2019), Q 281 (Jim Harra, Penny Ciniewicz, Ruth Stanier)

145 Oral evidence taken before the Treasury Committee, 22 October 2019 (Session 2019), Q 284 (Jim Harra, Penny Ciniewicz, Ruth Stanier)

146 Oral evidence taken before the Treasury Committee, 22 October 2019 (Session 2019), Q 288 (Jim Harra, Penny Ciniewicz, Ruth Stanier)

147 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 5(3)

148 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 6(2)

149 Oral evidence taken on 29 October 2019 (Session 2019), Q 6 (Dr Katy Hayward, Ivor Ferguson and Aodhán Connolly)

150 Oral evidence taken on 21 October 2019 (Session 2019), Q 9 (Rt Hon Stephen Barclay MP)

151 Oral evidence taken on 21 October 2019 (Session 2019), Q 10 (Rt Hon Stephen Barclay MP)

152 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Annex 3

153 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 8

154 Oral evidence taken on 29 October 2019 (Session 2019), Q 10 (Dr Katy Hayward, Ivor Ferguson and Aodhán Connolly)

155 Oral evidence taken before the Treasury Committee, 22 October 2019 (Session 2019), Q 295 (Jim Harra, Penny Ciniewicz, Ruth Stanier)

156 Oral evidence taken on 21 October 2019 (Session 2019), 10 (Rt Hon Stephen Barclay MP)

157 Letter from Rt Hon Steve Barclay MP, Secretary of State for Exiting the EU, to the Earl of Kinnoull, Chair of the European Union Committee (31 October 2019) : https://www.parliament.uk/documents/lords-committees/eu-select/Correspondence-Jul-Oct/evidence-session-followup-october.pdf [accessed 7 January 2020]

158 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 7(1)

160 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 10. The list of applicable EU legislation on State Aid is set out in Annex 5 to the Protocol.

161 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 7(2)

162 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(4)

163 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 9

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

165 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 12(1)

166 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 12(2)

168 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 12(4)

169 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 12(5)

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

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

172 European Union Committee, Brexit: UK-Irish relations (6th Report, Session 2016–17, HL Paper 76), para 144–152

173 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 13(1)

174 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 13(2)

175 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland,Article 13(3)

176 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 13(4)

177 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 13(5)

178 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 13(8)

179 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 16(1)

180 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 16(3)

181 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 14(a)

182 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 14(b) and (c)

183 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article, 14(d)

184 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article, 14(e)

185 Letter from Rt Hon Steve Barclay MP, Secretary of State for Exiting the EU, to the Earl of Kinnoull, Chair of the European Union Committee (31 October 2019) : https://www.parliament.uk/documents/lords-committees/eu-select/Correspondence-Jul-Oct/evidence-session-followup-october.pdf [accessed 7 January 2020]

186 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 15(1)

187 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 15(2)

188 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 15(5)

189 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(2)

190 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 6(2)

191 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(3)

192 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 8

193 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 11(2)

194 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 12(2) and (3)

195 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 13(4)

196 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 14(e)

197 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 16(3) and Annex 7

198 Withdrawal Agreement (17 October 2019), Protocol on Ireland/Northern Ireland, Article 18(4)

199 Oral evidence taken on 29 October 2019 (Session 2019), Q 8 (Dr Katy Hayward, Ivor Ferguson and Aodhán Connolly)

200 Oral evidence taken on 29 October 2019 (Session 2019), Q 8 (Dr Katy Hayward, Ivor Ferguson and Aodhán Connolly)

201 Oral evidence taken on 29 October 2019 (Session 2019), Q 11 (Dr Katy Hayward, Ivor Ferguson and Aodhán Connolly)

202 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 18

203 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 18(5)

204 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 18(2)

205 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 18(5)

206 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland, Article 18(6)

207 Oral evidence taken on 21 October 2019 (Session 2019), Q 5 (Rt Hon Stephen Barclay MP)

208 Oral evidence taken on 21 October 2019 (Session 2019), Q 6 (Rt Hon Stephen Barclay MP)




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