Northern Ireland Protocol

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The Northern Ireland Protocol, also called the Irish Backstop, is a standalone treaty appended to the proposed Brexit withdrawal agreement enabling the UK to leave the EU, that aims to prevent a hard border in Ireland by keeping Northern Ireland in some aspects of the European Union Customs Union and Single Market, even if there is no trade agreement between the UK and EU at the end of the transition period. Although the Irish government and Nationalists in Northern Ireland strongly support the protocol, Unionist opposition is seen as a major reason for Westminster's failure to ratify the Agreement.

Brexit and the Irish border[edit]

After the UK leaves the European Union, the Republic of Ireland–United Kingdom border in Ireland would be the external EU border (between the United Kingdom and the European Union) that is most difficult to control as it largely lacks significant geographic barriers. It is feared that a new customs border with the EU will have a negative impact on the economy and people of the island.[1] When the UK voted to leave the European Union in a referendum on 23 June 2016, all parties stated that they want to avoid a hard border in Ireland, due particularly to its historically sensitive nature. It was prioritised by both sides as one of the three most important areas to resolve in order to reach a withdrawal agreement.

History[edit]

Aftermath of the Brexit vote[edit]

The Republic of Ireland–United Kingdom border is the only significant external EU land border between the United Kingdom and the rest of the European Union. The impact it may have on the economy and people of the island could be "akin to a 'blockade' of the Northern economy".[1] Both the UK and the EU have prioritised avoidance of a 'hard border' as one of the three most important areas to resolve in order to reach a Withdrawal Agreement.[2] The Irish government, in particular, is insisting on this backstop because they consider that an open border on the island of Ireland is an essential element of the Good Friday Agreement.[3][4][5]

Britain is faced with a trilemma between three competing objectives: an open border on the island; no border in the North Channel; and no British participation in the European Single Market and the European Union Customs Union.[6]

Initial EU Backstop proposal[edit]

The European Union proposed a "backstop agreement" within the withdrawal agreement that would only be activated if no better terms could be agreed.[7] The protocol would require that Northern Ireland continue to operate those elements of the European Single Market and the European Union Customs Union necessary to obviate the need for evident border checks. The UK government regarded the idea of having EU rules applying to Northern Ireland only (and not to Great Britain)as a threat to the integrity of the United Kingdom, and consequently proposed that the arrangement would apply to the entire United Kingdom, until such time as a solution to the border problem can be found.[7] As there is no time limit or mechanism for unilateral withdrawal, a large faction of the Conservative Party (UK) is concerned lest the UK as a whole be subject indefinitely to the EU rules and so voted against ratification of the draft.[7]

December 2017 Joint Statement[edit]

In December 2017, an objection from the Democratic Unionist Party obstructed a draft EU/UK agreement that would keep Northern Ireland in the Single Market and Customs Union, while allowing Great Britain to leave.[8]

In order to keep a friction-less border, the negotiating teams from European Union and the UK agreed jointly that:

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.[9]

Although initially approved by the British Prime Minister (Theresa May), the DUP (on which whose confidence and supply support the Government's minority administration depends) vetoed this and subsequently a second paragraph (50) was inserted stressing that there would be no new controls on goods and services moving from Northern Ireland to Great Britain. This second paragraph was not incorporated into the EU's proposed text of the Withdrawal Agreement, as the European Union argued that it is exclusively an internal matter for the United Kingdom.[10]

Early Parliamentary debates[edit]

Many Brexit-supporting Conservative and DUP MPs continued to oppose the Northern Ireland backstop without a specified end-date, concerned that it could tie the UK to many EU rules indefinitely,[11] although the DUP has said that it is open to time limiting the backstop.[12] The EU side (in particular the Irish Government) sees a time-limited guarantee as without value, in particular due to scepticism about any near-term delivery of 'alternative arrangements'.[5]

On 15 January 2019, the UK parliament rejected a government motion to approve its draft withdrawal agreement. In late January 2019 many Brexit-supporting Conservative and DUP MPs continued to oppose a backstop without a specified end-date, concerned that it could tie the UK to many EU rules indefinitely,[13] although most of the Conservative rebels later voted for the Withdrawal Agreement and backstop without the DUP. This opposition was in spite of a LucidTalk opinion poll (released 6 December 2018) indicating that 65% of Northern Ireland voters were in favour of a Brexit that kept Northern Ireland in the EU single market and customs union.[14] On 28 January 2019, May expressed opposition to the backstop that she and the EU had agreed and urged Tory MPs to vote in favour a backbench amendment replacing the backstop with unspecified "alternative arrangements".[15][16]

The Brady Amendment[edit]

On 29 January 2019, the House of Commons voted 317 to 301 to approve Sir Graham Brady's Amendment (n) to the Brexit Next Steps motion.[17] which calls for "the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border, supports leaving the European Union with a deal and would therefore support the Withdrawal Agreement subject to this change."

Cox's Legal Opinion[edit]

A humble address was placed before the House of Commons on 13 November 2018, seeking the release of legal advice given to the government regarding the proposed EU withdrawal agreement. The government's response was presented to parliament by Attorney General Geoffrey Cox on 3 December. However, the following day, it was deemed by MPs to be incomplete, which led to a vote in which, for the first time in history, the Government of the United Kingdom was found to be in contempt of Parliament.[18]

The full advice was later released showing that the terms of the backstop could mean that the UK could face "protracted and repeated rounds of negotiations".[19] In March 2019 further advice was published saying that the Vienna Convention on the Law of Treaties could be used if the backstop was shown to have a "socially destabilising effect on Northern Ireland".[20]

The Malthouse compromise[edit]

Kit Malthouse was credited as the convener of an agreement between limited factions of the Conservative party on Brexit on 29 January 2019.[21] The proposal comprised two parts. Plan A was to reopen the withdrawal agreement with the EU and renegotiate the backstop. Britain's transition period would also be extended so there was more time to agree the future relationship. Plan B was akin to a managed 'no deal'. The Malthouse compromise was seen as a supplement, by some Leavers, to the Graham Brady amendment: in a nutshell, it aimed to replace the backstop with a different one, which would either allow a smooth transition to a deal or put in place a triple safety net if there is no deal. EU negotiators saw the plan as unrealistic, and an example of the Conservative party negotiating with itself, with one EU official going so far as to call it "bonkers".[22][23] On 13 March 2019, the House of Commons voted down the Malthouse compromise by a margin of 374-164[24][25]

As of June 2019, these alternative arrangements remain to be identified. On 8 May 2019, the UK Conservative Party established a 'panel of experts' to advise its Alternative Arrangement Commission on possible technical solutions to the dilemma.[26]

Provisions[edit]

Legal effect[edit]

The UK–Republic of Ireland border crosses this road at Killeen (near Newry), marked only by a speed limit in km/h (Northern Ireland uses mph).

Article 2(2) of the protocol states that it is a temporary measure[27] while the United Kingdom identifies and develops a mutually satisfactory technology that operates customs, excise, phytosanitary and other controls on the frontier between the UK and the EU, without any evident border infrastructure. The arrangements must be such as to comply with section 10 of the European Union (Withdrawal) Act 2018, on 'Continuation of North-South co-operation and the prevention of new border arrangements'.

In April 2019, a report commissioned by the German Green Party concluded that the backstop could allow the UK to undermine EU environmental, consumer, and labour standards, because it lacks sufficiently detailed controls.[28]

Common customs territory proposal[edit]

Northern Ireland will per article 6(2) be bound by the entire EU Customs Code, and shall be considered part of the EU customs territory per article 15(1). To reduce friction between Northern Ireland and the rest of the UK, article 6 of the Northern Ireland protocol proposes that (from the end of the transition phase on 31 December 2020), the UK and the EU customs territories will operate as one until the parties agree jointly that a mutually satisfactory alternative arrangement has been reached.[29] The single customs territory between the United Kingdom and the EU does not cover fish products: as a result fish from Great Britain to Northern Ireland would be subject to EU tariffs unless a separate agreement on fisheries is reached.[30]

This alternative arrangement must be such as to continue to ensure that there is no evident border in Ireland. In addition, Northern Ireland will maintain "regulatory alignment" with the EU Single Market, again until a mutually satisfactory alternative arrangement can be put in place for Single Market regulations as well as Customs and Excise.[31][32]

Reaction[edit]

The Irish government, in particular, is insisting on this backstop because they consider that an open border on the island of Ireland is an essential element of the Good Friday Agreement.[33][34]

This protocol has been strongly opposed by the Democratic Unionist Party,[35] who see it as weakening Northern Ireland's place within the United Kingdom,[36] and is regarded by a number of commentators as the main reason why the withdrawal agreement has not been ratified by the Parliament of the United Kingdom.[37][38][39] Since 2018, the DUP have said the Northern Ireland backstop must be removed from the Brexit withdrawal agreement if they are to continue to support Theresa May's government in the House of Commons,[40][41] although the party has said that it's open to a time limit on the backstop.[42]

The protocol is also opposed by the Ulster Unionist Party[43] and the Traditional Unionist Voice[44]

Sinn Fein, the SDLP, the Alliance Party of Northern Ireland and the Green Party in Northern Ireland all support the backstop.[45]

Alternative arrangements[edit]

No technology solution to address these issues has been designed yet or implemented anywhere in the world, let alone in such a unique and highly sensitive context as the Northern Ireland border.

Theresa May, 20 July 2018[46]

A leaked memo by Industry Minister Richard Harrington, obtained by Sky News, said “This [technical solution] idea was considered and rejected by both the UK and the EU in summer 2018, as both parties concluded that it would not maintain an open border. That is why we ended up with the current backstop. There is currently no border in the world, outside a customs union, that has eliminated border infrastructure.”[47]

On 8 May 2019, the UK Conservative Party established a panel of experts to advise its Alternative Arrangement Commission on possible technical solutions to the dilemma.[26] The panel includes proponents of the two ideas below. The only participant with an Irish connection is Graham Gudgin, a former adviser to Brexit supporter Lord Trimble.[26]

Smart Border 2.0[edit]

Lars Karlsson, former director of the World Customs Organisation and deputy director general of Swedish Customs, proposed how such a 'Smart Border 2.0' might operate.[48][49] As of June 2019, the proposal remains a theoretical one.

"Drive through border"[edit]

The information technology division of Fujitsu is reported as having pitched an artificial intelligence solution that would analyse social media posts.[50] Fujitsu said that the report in The Sun was incorrect to claim that the technology involved automatic number plate recognition cameras on a restricted number of authorised border crossings.[50] A spokesperson for the Department for Exiting the EU said that "this proposal was not taken forward as it does not work for the unique circumstances of the Northern Ireland border".[50]

References[edit]

  1. ^ a b Connelly, Tony (15 Jun 2019). "Double Whammy: A no-deal Brexit and Northern Ireland". RTÉ. Retrieved 15 Jun 2019.
  2. ^ "The UK-EU Joint Report and Scenarios for the post-Brexit Irish border". agendaNI. December 2017. Retrieved 17 June 2019.
  3. ^ "Irish backstop plan". www.politicshome.com.
  4. ^ "Ireland on Brexit". www.bloomberg.com.
  5. ^ a b "Varadkar: Removing backstop 'is effectively no deal'". BBC News. 15 June 2019. Retrieved 15 June 2019.
  6. ^ Springford, John (7 March 2018). "THERESA MAY'S IRISH TRILEMMA". Centre for European Reform. Retrieved 17 June 2019.
  7. ^ a b c "Q&A: The Irish border Brexit backstop". BBC News. 13 December 2018.
  8. ^ Northern Ireland in the negotiations and the withdrawal agreement, UK in a Changing Europe
  9. ^ "Joint report from the negotiators of the European Union and the United Kingdom Government on the "state of play of the negotiations under article 50 TEU on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community "" (PDF). European Commission. December 2017. Retrieved 15 June 2019.
  10. ^ UK to warn of Brexit backstop’s threat to Irish peace treaty, Tom McTague, Politico, 1/27/19
  11. ^ "Brexit: High risk of UK crashing out – EU negotiator". BBC News. 28 January 2019. Retrieved 28 January 2019.
  12. ^ McCormack, Jayne (17 January 2019). "Brexit talks: What does the DUP want?". BBC.
  13. ^ "Brexit: High risk of UK crashing out - EU negotiator". BBC News. 28 January 2019. Retrieved 28 January 2019.
  14. ^ "Poll suggests most Northern Ireland voters disagree with DUP on Brexit". The Times. 6 December 2018.
  15. ^ "May Backs Plan to Scrap Brexit Backstop in Struggle for a Deal". Fortune. Retrieved 4 February 2019.
  16. ^ "Theresa May seeks support for replacing backstop with 'alternative arrangements'". Independent.ie. Retrieved 4 February 2019.
  17. ^ Commons, UK House of (29 January 2019). "House of Commons votes 317 to 301 to approve Sir Graham Brady's Amendment (n) to the #BrexitNextSteps motion. This amendment requires the Northern Ireland backstop to be replaced with "alternative arrangements" and would support the #WithdrawalAgreement "subject to this change".pic.twitter.com/Tk09LsIpSE".
  18. ^ "Full Brexit legal advice to be published after government loses vote". The Guardian. 4 December 2018. Retrieved 5 December 2018.
  19. ^ https://www.theguardian.com/politics/2018/dec/05/brexit-legal-advice-warns-of-uk-trapped-in-talks-by-irish-backstop
  20. ^ https://uk.reuters.com/article/uk-britain-eu-legal/uks-attorney-general-cox-has-new-legal-advice-on-brexit-the-telegraph-idUKKCN1QV38C
  21. ^ "Brexit Plan C - The Malthouse Compromise: The secret Tory pact that could unite the ERG and Remainers". Daily Telegraph. 29 January 2019. Retrieved 29 January 2019.
  22. ^ Rankin, Jennifer (4 February 2019). "'Bonkers': what the EU thinks of the Malthouse compromise". The Guardian. Retrieved 17 March 2019.
  23. ^ Blitz, James; Barker, Alex (19 February 2019). "Theresa May ditches Malthouse plan ahead of Brexit talks in Brussels". Financial Times. Retrieved 17 March 2019.
  24. ^ Butterworth, Benjamin (13 March 2019). "Brexit latest: MPs vote 164-374 against 'Plan C' Malthouse compromise". inews.co.uk.
  25. ^ Mikhailova, Anna; Maidment, Jack (13 March 2019). "No deal Brexit ruled out by MPs in all circumstances as chaos deepens" – via www.telegraph.co.uk.
  26. ^ a b c Campbell, John (8 May 2019). "Brexit: Panel to advise on Irish border solutions". BBC News. Retrieved 9 May 2019.
  27. ^ "Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018" (PDF). Government of the United Kingdom. November 2018. Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes. Once a subsequent agreement between the Union and the United Kingdom becomes applicable after the entry into force of the Withdrawal Agreement, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply, as the case may be, in whole or in part, notwithstanding Article 20.
  28. ^ Oltermann, Philip; Rankin, Jennifer (26 April 2019). "Brexit: Irish backstop could undermine EU standards, report says". The Guardian. Retrieved 26 April 2019.
  29. ^ Henley, Jon (2018-11-14). "Brexit deal: key points from the draft withdrawal agreement". the Guardian. Retrieved 2018-11-26.
  30. ^ Brexit: Backstop could mean tariffs on GB fish, BBC News, accessed 19 July 2019 https://www.bbc.com/news/uk-northern-ireland-46634872
  31. ^ Brexit draft agreement: What has been agreed on Northern Ireland to avoid a hard border – Belfast Telegraph, 14 November 2018
  32. ^ European Commission - Fact Sheet: Protocol on Ireland and Northern Ireland – European Commission, 14 November 2018
  33. ^ "Irish backstop plan". www.politicshome.com.
  34. ^ "Ireland on Brexit". www.bloomberg.com.
  35. ^ "Irish backstop". www.belfasttelegraph.co.uk.
  36. ^ Irish backstop is ‘toxic,’ would ‘break up’ UK, says DUP leader, Politico, 5 February 2019
  37. ^ Roxan, Dr Ian (25 February 2019). "An Arbitration Agreement can solve the backstop blockage". London School of Economics. The UK government has not been able to get the UK EU Withdrawal Agreement approved primarily because of objections to the Northern Ireland Backstop (officially called the Protocol on Northern Ireland). The objectors fear that the UK could be permanently locked into the Backstop. (Dr Roxan is Associate Professor in the LSE Department of Law)
  38. ^ Hestermeyer, Dr Holger (17 January 2019). "The way forward: can a protocol to the Withdrawal Agreement save the Prime Minister's deal?". UK in a Changing Europe. The main problem with the Agreement is the (not time-limited) Northern Ireland backstop.
  39. ^ Shields, David (6 February 2019). "A possible way through on the Northern Ireland backstop?". Prospect. This time she had to acknowledge that the Withdrawal Agreement was unacceptable to the British parliament, with the backstop identified as the main problem.
  40. ^ "Backstop must be removed if May wants DUP support - Foster". RTÉ. 24 Nov 2018.
  41. ^ "DUP: 'Perfectly possible' for May 'to have the backstop removed'". Irish Examiner. 30 January 2019.
  42. ^ Brexit talks: What does the DUP want?, Jayne McCormack, BBC News, 17 January 2019
  43. ^ Ulster Unionist Party leader says NI will not be EU ‘dowry’ for Brexit delivery, Amanda Ferguson, Irish Times, March 9 2019
  44. ^ Jim Allister: Northern Ireland not the 'plaything' of EU, Jayne McCormack, BBC News, 16 March 2019
  45. ^ "May accused of 'enormous act of bad faith' over border backstop". Belfast Telegraph. 31 January 2019.
  46. ^ Theresa May takes a swipe at Boris Johnson as she says his Irish border solution hasn't been designed yet – Daily Mirror, 20 July 2018
  47. ^ Stewart, Heather; Sabbagh, Dan (31 January 2019). "Theresa May faces pressure to clarify backstop changes". The Guardian. Retrieved 31 January 2019.
  48. ^ Ultra-hi-tech invisible Irish border ‘perfectly doable’, ex-customs chief says – Josh Loeb, Engineering and Technology Magazine, The Institute of Engineering and Technology, 5 April 2018
  49. ^ Smart Border 2.0 Avoiding a hard border on the island of Ireland for customs control and the free movement of persons: At a glance (with link to full briefing. – European Parliament Brexit Committee paper and presentation, 26-02-2018
  50. ^ a b c Fujitsu pitched stalker-y AI that can read your social media posts as solution to Irish border, apparently – Rebecca Hill, The Register, 6 Feb 2019