As the EU and UK continue to prepare for the trade negotiations, there are clear signs that all is not well when it comes to implementing the divorce part of Brexit, in particular the Irish Protocol.
This has to be done in parallel with the trade talks, and the Protocol will need to take effect on 1 January 2021 - just ten months away.To recap, the Protocol on Ireland/Northern Ireland ensures there will be no hard border on the island of Ireland.
Northern Ireland remains in the UK’s customs territory, but it applies EU customs law, and it effectively stays in the EU’s single market for goods. The sea border between Great Britain and Northern Ireland therefore becomes the Single Market’s de facto external border. Goods moving from Great Britain to Northern Ireland will be subject to tariffs, as well as regulatory checks and controls. If there is no risk of the goods continuing on over the land border, then there will be tariff exemptions or rebates. That’s putting it at its simplest. But that has to be converted into something that is legally clear and watertight for businesses, politicians and consumers.The regime will be implemented by a Joint Committee, made up of European Commissioners on the EU side, and cabinet ministers on the UK side. There will also be a Specialised Committee, made up senior officials from both sides, but it will be the Joint Committee which makes the decisions. According to a number of EU officials and diplomats, there is a misunderstanding on the UK side about the scope of the Joint Committee. To the EU, the Joint Committee has two roles: it makes sure there is a regime in place to do the checking and monitoring, including the development of IT systems and databases. The second role is to work out what goods, or categories of goods, are deemed not at risk of crossing the land border into the single market.However, the EU insists that that is all the Joint Committee can do. It cannot, they say, start to whittle down the levels of checks and controls. This is spelled out in an internal paper circulated by the European Commission to member states on 4 February, and seen by RTÉ News. The paper spells out the objectives of the Protocol, describing it as "a fully legally operative solution for Northern Ireland...to remain in the UK’s customs territory". However, Northern Ireland would "apply the Union’s Customs Code , as well as checks and controls, on all goods coming from third countries as well as from Great Britain…" and would "remain aligned to the relevant EU rules between the UK and EU." Colin Murray said Northern Ireland was now "at the centre of a very complicated and convoluted Venn Diagram. It is the space in which the EU’s single market and the UK’s internal market are going to overlap…When you think about Northern Ireland within that space you have to put together a set of rules that will allow civil servants and members of the NI Executive to make policy and to administer law essentially having one foot in each of these different arrangements. "That in itself is particularly difficult to envisage," he concluded, noting that a newly formed and fragile Stormont Executive was being bounced into this with just 10 months to get it right. Sylvia De Mars pointed out that keeping Northern Ireland in the single market requires compliance with 300 pieces of EU law. While the Protocol, with one or two paragraphs, breezily references where the EU’s customs regime takes effect, Ms De Mars helpfully pointed out that the Union Customs Code is 2,000 pages long. One of her observations was particularly interesting: "The EU is agnostic as to how this works," she told peers. In other words, figuring out how this Venn diagram will operate legally is entirely up to the UK government. Who would carry out the checks and controls? If the UK failed to implement the checks and controls , would the UK be brought to the European Court of Justice and fined as if it was a member state? Or would the devolved administration in Stormont be responsible? Who gets to access the Specialised Committee? Will there be transparency when it comes to the deliberations on which goods enjoy exemptions? What happens if Stormont is unwilling, or unable, to agree laws to put this in place? On the question of what happens if the UK does not correctly apply the checks and controls, EU sources have made it clear that, indeed, the UK can be treated just as a member state and taken to the European Court of Justice. Article 12 of the Protocol makes it clear that "in particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties in this respect". The European Commission believes it has the same powers as when it comes to member states and that if the UK does not enforce EU law correctly, then the Commission can start an infringement procedure which could end up in the ECJ. Not only that, officials insist that the Withdrawal Agreement Act itself means the Protocol’s obligations are directly enforceable through the UK courts as well. That means that all the mechanisms that exist with the EU to enforce EU law through the national system and then ultimately through infringements in the ECJ are available in principle. Complicating things further is the fact that Northern Ireland is having to take on a quasi trade competence, yet the UK has sole competence when it comes to trade - not the devolved administration of Northern Ireland. Colin Murray told the Committee that when it came to implementing the Protocol, the Withdrawal Agreement Act handed powers both to ministers in Westminster and to Northern Ireland ministers in Stormont, and in places these powers overlapped. "How that overlap is resolved has not been set out yet," he told peers. "We are still in the territory of working out where that will be divided up." Of course, if the EU and UK can manage to conclude a zero-tariff, zero-quota trade deal by the end of the year, then that removes the whole element of having to work out which goods going to Northern Ireland should be subject to tariffs and which should be exempt. "If we’re in such a scenario, you don’t need to get tariff exemptions," says one EU official close to the negotiations. But if there is no trade deal concluded - which is highly possible - then that makes the work of the Joint Committee all the more taxing. Not only will they have to work out which goods are at risk of crossing the land border into the single market, they will also have to work out which raw materials or ingredients coming from Great Britain form a component part of a product which is likely to cross the border south. Officials have made it clear that if the Joint Committee can’t reach agreement by the end of the year on the schedule of exemptions, then the default that applies is the trading relationship between the EU and UK which is in place on 1 January 2021. In other words, if a zero-tariff, zero-quota FTA is secured, then there will be no tariffs on goods going GB-NI at all. But if the talks fail and a WTO scenario prevails, then there will be no tariff exemptions at all on those goods.While the world waits for the FTA talks to get under way in March, how the Irish Protocol is implemented may well be the big political clash.
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