The Prime Minister has managed to get rid of his predecessor’s backstop but he has had to agree to something awfully similar to the “Northern Ireland only backstop” that the DUP forced Theresa May to drop last year.
The new Northern Ireland (NI) protocol is lengthy and complex but its main consequences can be spelt out in five points.
Backstop becomes a frontstop
The backstop was agreed in case the UK and the EU failed to agree a long-term trade deal in which the UK retained key aspects of EU customs and single market rules necessary to prevent a hard border. If so, NI would still be covered by them.
The new text drops two paragraphs of the original introductory clauses (page 301) which said that it was the intention of the EU and the UK to replace the backstop with “alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing”.
Far from being a fall back, this “frontstop” will remain in force as long as the NI Assembly agrees. It will be almost impossible to replace if the UK doesn’t want to have the kind of close relationship with the EU that May’s deal implied but which Boris Johnson rejects.
NI de facto in EU customs union
NI will be in the UK customs union but also in the EU customs union for the purposes of cross-border trade. Article 5 of the protocol retains key provisions of the Treaty on the Functioning of the EU concerning its customs union (Articles, 30, 34 & 36) for NI after Brexit. Goods entering NI from Great Britain (GB) will not face customs duties “unless that good is at risk” of going to the EU whether of itself or as part of some other good.
In simple terms, if a company imports goods from GB to supply NI shops, no duty applies. If it imports them with the intent of re-exporting them to the Irish Republic/EU, then duties will apply. If the goods are to be used in another product that will be exported to the Republic/EU, then again duties will apply.
If there is a “risk” of goods from GB subsequently going into the EU, duty will be levied and the company concerned will have to reclaim it from the UK government.
What’s more, the criteria for determining whether goods are at risk of moving into the EU will only be decided after Brexit – by a joint committee of the UK and the EU. This means that the EU will have a veto and can pretty much make the rules as tight as it likes. (See Article 5, para 2).
No unionist veto
The “consent” provisions mean that NI will stay in this arrangement as long as the nationalists want it to; there is no Unionist veto.
Article 18 says it is for the NI Assembly to decide by simple majority whether or not these arrangements should continue. There will be no initial vote, as the DUP had wanted. The first vote would be in five years’ time and then every four years thereafter. It would even be every eight years if there was cross-community support. This is the provision that the DUP hates the most.
There will be a sea border between GB and NI. Goods coming into NI will be checked at ports and airports with provision for EU personnel to be present. This will create a customs and regulatory infrastructure that could be a security risk.
The VAT regime isn’t fully resolved but under Article 8 of the new protocol NI would be subject to the EU’s VAT rules. NI would have to stick to EU VAT rules if they clashed with UK ones. For example, if the UK cuts VAT on domestic fuel and power to zero after Brexit, it would stay at 5% in NI because that’s the EU minimum.
The Prime Minister has retreated dramatically to get this deal. He has dishonoured his promises not to separate NI from the rest of the UK; abandoned giving the DUP a veto; and signed up to an agreement that means NI will be subject to EU laws over which it has no say.
After all that, it may still not pass the House of Commons. It certainly shouldn’t.
The headline was updated on December 3