Richard North, 13/09/2020  

There is no question that the Protocol on Ireland and Northern Ireland is complicated – fiendishly so.

And I would wager a year's wages (if I was actually paid any) that Johnson didn't read it before he signed it, or since. He will be totally reliant on Janet & John summaries written by his officials and spads. That is the way he works and, only armed with profound ignorance could he be so confident in blazing his trail of misinformation.

However, the controversy that arose last November when the prime minister assured worried exporters they would not have to fill in customs declarations when they sent goods across the Irish Sea needs some clarification.

At the time, Johnson was questioned by an exporter about whether his business would have to complete extra forms, when he said: "You will absolutely not". But he went on to clarify this in terms of goods going to Northern Ireland and those coming from the province to Great Britain.

Johnson did, in the video clip published, make it clear that there would not be checks and tariffs on goods going from Northern Ireland to (as he says) the United Kingdom. We would have, he said, "unfettered access".

That was true and remains the case, although there is a third element. Johnson was less clear about paperwork, recommending that if any business was asked to fill in any paperwork, they should telephone the prime minister "and I will direct them to throw that form in the bin".

It was here that Johnson seems to have been wrong, in that under the EU customs code (elements of which will apply to Northern Ireland) traders will be required to make 'exit declarations' when goods leave the province, even when going to the rest of the UK.

There was, though, some dispute about whether the EU would grant a waiver as the provision, it was argued, was incompatible with the commitment to unfettered access.

From what I can ascertain, though – as of last July, the government had not secured a waiver, and businesses were in the dark about precisely what would be required of them. Johnson, at the very least, had jumped the gun.

As to goods moving from Great Britain to Northern Ireland, Johnson has never disputed that some checks will be required and tariffs will be levied where there is considered to be a risk of them subsequently being moved into the Union. Setting the criteria for applying tariffs is allocated to the Joint Committee.

Up to press, we have had no information on those criteria and now Johnson is asserting that the EU is about to impose those tariffs. But I can find no provision in the Protocol for that to happen. Setting the criteria seems to be a power reserved exclusively to the Joint Committee.

I do readily concede though that the Protocol in complicated, so it would be easy to miss what might be termed a fallback provision. But I can't see that awarding default powers to the EU would have been acceptable. The situation is covered by the dispute settlement procedure where, if the Joint Committee fails to deliver, either party can seek a ruling from an arbitration panel.

On the face of it, therefore, the prime minister is wrong in claiming that the EU is about to impose tariffs. But where this gets seriously bizarre is that he now seems to be asserting that "any such tariffs … would be completely contrary to the letter and the spirit of the Good Friday Agreement".

The situation is further confused by Hannan who is now claiming that the Withdrawal Agreement was passed on the basis that a trade deal would be not only agreed in 2020 but fully implemented.

Such a deal, he asserts, would ensure that Northern Ireland faced no tariffs, either vis-à-vis Great Britain or the Republic of Ireland, since there would be no tariffs between the UK and the EU.

And then notwithstanding the fiction that he then offers as to the progress of the talks, nowhere can he cite an actual provision in the Withdrawal Agreement that in any way makes its implementation (or not) conditional on securing a trade deal.

Hannan – as does Johnson – also seems to be under the misapprehension that the EU is set to impose checks on goods moving from Great Britain to Northern Ireland. But, as I explained yesterday, these checks are not imposed de novo. They automatically apply the moment the UK moves out of the Single Market.

What the Protocol does is move those checks (and the application of tariffs) from the border between the Republic of Ireland and Northern Ireland, to the entry points in Northern Ireland. With or without a trade deal, most of the checks would still apply.

But now we have Hannan claiming that the legislation placed before Parliament this week (the UK Internal Market Bill) "is, though you wouldn't guess it from the coverage, narrowly and specifically designed to prevent such barriers, which might be applied maliciously".

This, however, cannot be found in Clause 42 of the Bill, which gives the Secretary of State power to disapply or modify export declarations and other exit procedures" and then only "to goods, or a description of goods, when moving from Northern Ireland to Great Britain".

This is absolutely nothing to do with tariffs or checks and it does not impact on goods being shipped from Great Britain to Northern Ireland. What it seems to be about is removing any requirement for exit summary declarations in the event that the UK does not secure a waiver, thus allowing Johnson to honour his promise that NI traders sending goods to Great Britain will not have to complete any paperwork.

To that extent, any breach in international law is "very specific and limited" and, presumably, would only kick in if the EU did not allow a waiver. As to the state aid provisions, they are rather more serious, but that is also another story.

On the face of it, it is hard to see how such a minor provision could be considered to be "undermining the Union of our country", or in any way seriously endangering peace and stability in Northern Ireland.

The rhetoric, though, is remarkable. Says Johnson, "we cannot leave the theoretical power to carve up our country – to divide it – in the hands of an international organisation". Thus, he says, "We have to protect the UK from that disaster, and that is why we have devised a legal safety net – in the UK Internal Market Bill – to clarify the position and to sort out the inconsistencies".

At first sight, this appears nothing short of delusional, as if it is writing into the Bill powers which don't seem to be there there, to deal with things which were agreed and embedded into an international treaty and cannot be removed without a major beach of international law.

But when Johnson wants to prevent barriers to trade between the nations and regions, he actually means it. He wants anything approved for sale in Scotland or Wales to be good for sale in England or Northern Ireland, and vice-versa.

And its there that the focus has been too tight. So far, I've been looking at Clauses 42-43. But if we look at Clause 2, we see 'the mutual recognition principle for goods – a requirement that goods which have been produced in, or imported into, one part of the United Kingdom ("the originating part") … should be able to be sold in any other part of the United Kingdom, free from any relevant requirements that would otherwise apply to the sale.

But that's not what he signed up to. Under most circumstances, goods shipped to Northern Ireland from Great Britain must comply with EU standards. His Bill seeks to change that, and constitutes a major break of the Protocol. It drives a cart and horse through the agreement.

This is not at all "very specific and limited". If this Bill goes through, the Protocol is a dead letter. And the EU cannot let that pass by.

Also published on Turbulent Times.

comments powered by Disqus

Log in

Sign THA

The Many, Not the Few