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The protocol

NI Protocol Bill: What is the British government proposing and how has the EU responded?

The Bill was published this evening.

THE BRITISH GOVERNMENT has published legislation to unilaterally override parts of the Northern Ireland Protocol.

UK Foreign Secretary Liz Truss has said the Northern Ireland Protocol Bill is a “reasonable, practical solution to the problems facing Northern Ireland” and said it does not break international law.

The Bill would see customs checks between Northern Ireland and Britain effectively scrapped and would give UK government ministers the power to change almost every aspect of the text.

It proposes creating green and red channels for traders to differentiate between goods that remain within Northern Ireland and those destined for onward transportation across the border into the EU.

Goods arriving through the green channel would move free of customs or regulatory red tape while the requirements of the Protocol would continue to apply to red channel produce.

Goods banned under the Protocol, such as certain types of plants and seeds, would be allowed to travel into the North through the green channel, as long as they remained in the region.

Red channel goods shipped to Northern Ireland would still have to apply EU customs codes and, if relevant, undergo single market agri-food checks.

The UK Government is also proposing a new framework where goods can be sold in Northern Ireland if they meet either UK rules or EU rules, or both.

Produce due to be moved onward to the EU single market would still need to comply with relevant European standards.

However, London wants to ensure that products made to comply with UK standards can be sold in Northern Ireland, even if they are not in line with EU rules.

Under the plan, goods made in the North could be sold freely in the rest of the UK, regardless of whether they apply EU or British standards.

The Bill would also end EU control over state aid and value added tax (VAT) in the six counties, as well as remove the European Court of Justice (ECJ) as the final arbitrator in any future trade disputes over the Protocol.

The Northern Ireland Protocol was agreed as part of the Withdrawal Agreement between the EU and UK following Brexit and was designed as a way of preventing the need for a hard border on the island of Ireland.

The Protocol effectively keeps Northern Ireland in the EU Single Market for goods, creating checks on trade between Britain and the North, but it also keeps Northern Ireland in the UK’s Customs territory.

While the unique arrangement offers potential advantages for NI businesses to operate in both territories, unionists have criticised it because it has required some checks to be carried out on goods travelling from Britain to Northern Ireland.

Under the terms of the Withdrawal Agreement, the Northern Ireland institutions will be periodically asked to consent on the continuation of the Protocol, with the first such vote due to take place in December 2024.

EU reaction

Vice-President of the European Commission Maros Sefcovic has said the EU views the UK Government’s decision with “significant concern”.

Speaking at the commission headquarters in Brussels, Sefcovic said the unilateral action by the UK could put the access of Northern Ireland businesses to the EU single market at risk.

He said the commission would now look at restarting “infringement proceedings” against the UK which have been on hold since September 2021.

“It is with significant concern that we take note of today’s decision by the UK Government to table legislation disapplying core elements of the protocol. Unilateral action is damaging to mutual trust,” he said.

“In particular, the Protocol provides business operators in Northern Ireland with access to the EU single market for goods. The UK Government’s approach puts this access – and related opportunities – at risk.

“Our aim will always be to secure the implementation of the Protocol. Our reaction to unilateral action by the UK will reflect the aim and it will be proportionate. The first step the commissioner will consider is continuing the infringement procedure launch against the UK Government in March 2021.

He had put this legal action on hold in September 2021 in spirit of constructive cooperation to create the space to look for joint solutions. UK unilateral action goes directly against the spirit.

Sefcovic said the EU would not be renegotiating the Protocol.

“Renegotiating the protocol is unrealistic… No workable solution has been found. Any renegotiations would simply bring further legal uncertainty for the people and businesses in Northern Ireland,” he said.

“From the very beginning, the EU has shown understanding for the practical difficulties in implementing the protocol. Based on our extensive engagement engagement with a wide range of stakeholders in Northern Ireland, the European Commission has put forward far reaching bespoke arrangements especially to facilitate the movement of goods between Great Britain and Northern Ireland.

“With political will and commitment, the full potential of the flexibilities put forward should be explored, and the European Commission remains keen to do that with the UK Government as soon as possible.”

What happens next?

If the EU revives legal action against the UK, it could end with the ECJ imposing daily fines for non-compliance.

If the UK refuses to pay and comply with its judgement, the EU could end parts of the post-Brexit trade agreement and apply tariffs to British goods, which could result in an all-out trade war. 

However, before then, the British Prime Minister may have some difficulty getting the Bill through the House of Commons due to opposition within the Conservative Party.

It has been exactly a week since Johnson survived a confidence vote in his leadership by a slim majority of 63.

With 148 of 359 Tory MPs voting against him, his authority has been dealt a significant blow and he may struggle to push through the legislation if he encounters cabinet opposition.

A number of Tory MPs are believed to be unhappy with the legislation.

The Financial Times reported that an internal note had been circulating among those against the Bill, which said: “Breaking international law to rip up the Prime Minister’s own treaty is damaging to everything the UK and Conservatives stand for.”

Chancellor Rishi Sunak and Cabinet Minister Michael Gove have previously expressed concerns about the prospect of a trade war with the EU, and how the legislation would impact Britain’s reputation worldwide. 

If the Bill is passed, it is likely that it wouldn’t become law for at least a year because it is understood that it would to face strong opposition by pro-EU members of the House of Lords.

Trading arrangements under the Protocol would also continue after it passed until London draft and implement a unanimous replacement system.

It also remains to be seen whether the publishing of the legislation will prompt the DUP to re-enter power-sharing in Stormont. 

DUP leader Jeffrey Donaldson has said his party is not under pressure to do so.

“I am not under any pressure. We have strong support from across unionism for the stand that we are taking.

“I believe that our pressure has brought about what we see today with this Bill being published. I believe that our pressure is seeing progress being made and we will continue to work with government to ensure that this legislation progresses.”

With reporting from the Press Association. 

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