Introduction to Mutual Enforcement and the EU Withdrawal Arrangements Bill

RESTORING THE INTEGRITY OF BOTH THE UNITED KINGDOM AND THE INVISIBLE NORTH-SOUTH BORDER ON THE ISLAND OF IRELAND

 

Private Members’ Bill Explainer

 

 

The Northern Ireland Protocol (the Protocol) was said to protect the Belfast Good Friday Agreement, an Agreement at whose heart was the imperative of cross-community support for key decisions affecting Northern Ireland.

 

The Unionist community remains opposed to the Protocol, because it

 

1.       Disrespects the need for cross-community sanction

2.       Was imposed on Northern Ireland without the joint consent of both communities

3.       Places Northern Ireland under EU Single Market law for goods, as though Northern Ireland were still in the EU, without any corresponding powers over the making of those laws

4.       Erects a hard trade border between Northern Ireland and the rest of the United Kingdom

5.       Destroys Northern Ireland’s position in the UK internal market with respect to goods

 

Moreover, it drags along the whole of the UK with EU law on goods and agriculture, and even rates of VAT, in order to avoid new checks arising across the Irish Sea. This will prevent the UK from negotiating a “full fat” trade deal with the US, particularly on industry and agriculture, which are of vital importance to the US. In addition, the Protocol also applies EU state aid law to the UK in a manner which controls aspects of UK subsidy, tax and other policies.

 

The Protocol was conceived as a temporary agreement, as part of the transition of the UK out of the EU. Article 13(8) of the Protocol is clear that the Protocol can be amended or replaced. The Protocol provides for consent for the Protocol to continue in force beyond 2024, subject to a vote of the Assembly. However, the arrangement is wrong and inherently unstable. The endorsement is retrospective, in breach of basic international law principles. It only requires a majority vote, not the cross-community mechanism established by the Belfast Good Friday Agreement, and essential to the just treatment of both communities.

 

The only way back to an enduring peace is for the Belfast/Good Friday Agreement to be restored by:

 

• Removing Northern Ireland from the EU Single Market

• Replacing the Protocol with a new Annex to the UK-EU Trade and Cooperation Agreement, which

-­Implements a soft, invisible, customs border between Northern Ireland and the Republic of Ireland without the need for checks or infrastructure at the frontier, thereby eliminating the need for an Irish Sea border

­-Respects the integrity of the EU Single Market (which is the EU’s overriding concern)

     

• The UK-EU/Republic trade and border issues can be addressed, by employing Mutual Enforcement – ie,

-Conducting checks away from the border on products crossing from Northern Ireland into the Republic/Single Market, and vice versa

-The UK and the EU sharing customs data on all goods crossing the border

-­Applying technology already deployed on low friction borders, such as Norway-EU, Switzerland-EU, and US-Canada, to provide maximum mutual confidence and transparency. Checks on compliance would be done at exporting warehouses, factories and farms, away from the border.

 

This new Private Members Bill exactly achieves the above. The detailed mechanics for the invisible border processes will be addressed in statutory instruments.

 

However, the EU has so far refused to cooperate in establishing an invisible north-south border. If the EU continues to insist that this is impractical, “magical thinking” (as it did during the Brexit negotiations), each party could guarantee the border in law, taking any risk to the Single Market off the table.

 

• The UK would enact a new UK law, making it illegal for any person to move any product from Northern Ireland to the Republic of Ireland which is not compliant with EU product standards.

• The Republic would do the same. This arrangement would also pick up residual tariffs. The entire technique is known as “Mutual Enforcement”. However, despite being mutual (in its developed form), it can be delivered unilaterally by the UK if necessary.

 

On the island of Ireland, there is already a north-south currency border, a migration border, a VAT and excise tax border, and a security border, without any checks or infrastructure at the border. Mutual Enforcement would build on the processes already in place, avoiding any return to the “hard” security border of the 1970s and ‘80s that existed to impede cross-border terrorism, rather than impede trade. 

 

Importantly, products coming into Northern Ireland from the rest of the UK would no longer be subject to checks and compliance. 

 

The UK must therefore be prepared to implement one half of Mutual Enforcement unilaterally, applying EU checks for north-south trade, and guaranteeing the EU’s border. This would remove any legal possibility of customs or regulatory leakage for the Single Market. For south-north trade, the UK would apply its own invisible behind-the-border checks to protect the internal market.

 

At the same time as enacting the Bill, the UK would offer the EU a long-term solution – an Annex to the Trade and Cooperation Agreement. If the EU were to agree to apply its half of Mutual Enforcement, the behind-the-border checks would be less weighty for the UK. However, the UK cannot wait for such an outcome. It must act now.