Northern Ireland ‘Brexit Protocol’ now fully implemented
The rules agreed by an EU-UK ‘Joint Committee’ on how goods will move between Northern Ireland and Great Britain – including how they can avoid tariffs – came into effect at 23:00 GMT on 31 December 2020.
The parties have also agreed some ‘temporary grace periods’ for goods such as Agri-food and medicines – in order to “give Northern Ireland businesses time to prepare for the new rules and checks”.
There were some immediate issues on 1 January 2021 at Holyhead where a number of freight vehicles were refused passage to the Province for non-compliance with the new customs regulations and documentation.
The Protocol on Ireland/Northern Ireland (the Protocol) is part of the Withdrawal Act that has international Treaty status. It sets out the relationship Northern Ireland will have with the EU – and Province’s relationship with ‘Great Britain’, that is, the rest of the UK.
The principal purpose of the Protocol is to maintain an open border that currently exists between Ireland and Northern Ireland – with unfettered movement of goods and people on the island of Ireland. This means that Northern Ireland will follow:
- the EU’s ‘customs union’ code for bringing goods in and out of the EU; and
- many EU ‘single market’ rules for goods.
Great Britain, meanwhile, left both the EU ‘single market’ and the EU ‘customs union’ on 31 December 2020 – and is free to set its own custom and regulatory rules.
Key to the implementing the Protocol is the introduction of a new regime of checks and controls for goods moving both from Great Britain to Northern Ireland – and, vice versa, from Northern Ireland to Great Britain.
In May 2020, the UK Government sent a ‘command paper’ to the Joint Committee requesting some flexibility on implementing the Protocol:
- “Not requiring NI business complete export and exit summary declarations when sending goods to Great Britain; and
- Decreasing the frequency and complexity of checks on Agri-food moving from Great Britain to Northern Ireland.”
When these were not agreed to by the EU, the UK decided to introduce two pieces of legislation that would “allow it unilaterally deal with the areas of concern it raised in the Command Paper.”
In September 2020: The ‘UK Internal Market Bill’ would have granted the Government powers to unilaterally decide to waive exit declarations for NI firms and reinterpret the Protocol’s State Aid rules. It was openly acknowledged by the Government that this “would break the UK’s legal obligations under WA and international law.”
In December 2020: The ‘Taxation (Post-transition period) Bill’ aiming to empower Ministers NOT to collect tariffs on “at risk” goods if agreement could not be reached in the Joint Committee. ‘At Risk’ goods are those moved between Northern Ireland – but which subsequently end up in Southern Ireland.
The EU objected to these laws in the strongest terms, and the House of Lords repeatedly stripped out parts of the Bills that related to the Protocol, with the Government continuing to reinsert them. Michael Gove, on behalf of the the UK Government, conceded the principle to the EU in Brussels on 17 December 2020 – and the Government removed the offending clauses from the Bills. In so doing the UK removed a major obstacle to the EU concluding both the ‘Northern Ireland Protocol’ and the ‘EU–UK Trade and Cooperation Agreement’.
A Joint Committee protocol which was duly implemented on 31 December. It would have applied whether or not the UK concluded a Brexit trade agreement with the EU. It covers:
- Definitions of “At risk goods”;
- Agricultural subsidies – set at £382.2 million per annum; and
- Presence of EU representatives in the Province – e.g. the EU Customs Declaration Service.
There remain “areas where the UK sought easing and reinterpretations of EU rules under the Protocol”. Unilateral declarations have been used here instead. Whilst not legally binding, they aim to aid ‘understanding’ on how the UK aims to interpret Treaties. They cover:
- Declarations on export declarations. HMRC will, instead, collect “equivalent” information from sources such as shipping manifests. It is not clear to what extent this will decrease administrative burdens for firms compared to having to fill out the EU’s customs declarations;
- Declarations on agri-food products. Supermarkets and their suppliers bringing agri-food products into Northern Ireland, have been given a three-month grace period before they must comply with the EU’s full Sanitary & Phytosanitary (SPS) regime;
- Declarations on chilled meats. Supermarkets will benefit from a six-month grace period before having to comply with EU SPS rules for bringing in certain types of chilled meats, such as sausages, from Great Britain to Northern Ireland. These products must clear through Border Inspection Posts, have official certificates from UK authorities – and carry a label saying, “these products from the United Kingdom may not be sold outside Northern Ireland”; and
- Declarations on human & veterinary medicines. Northern Ireland has a year-long grace period for implementing in full the EU’s rules on testing and selling human and veterinary medicines.
For its part, the EU made a Unilateral Declaration clarifying its position regarding ‘State Aid’. As the ‘Court of Justice of the European Union’ is the body with ultimate jurisdiction over EU State Aid matters, it not clear how this could be applied.
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