The Irish protocol puts the North at the centre of a complicated Venn diagram

THE IRISH PROTOCOL is expected to add an extra dimension of complexity in Brexit trade talks.

Described as being at the centre of a “very complicated” Venn diagram, Northern Ireland is caught in a Brexit bind – quite literally.

Even though Brexit has officially happened, the UK is still in the Customs Union and Single Market, so it’s still not clear how what the trading relationship for the North will be once they do leave the EU’s free-trade bloc.

When, or if, a customs arrangement is struck as part of the trade talks, Northern Ireland’s devolved government will have to vote on the proposals. If the vote is a simple majority, they’ll have to vote on the arrangements every several years – locking them into a permanent Brexit debate.

Here’s what we do know about the Irish protocol (formerly the backstop).

The Irish Protocol

First, a recap: The first phase of Brexit negotiations were about the UK leaving the EU; the next phase is about its ‘future relationship’ – which includes trade talks, security and data protection.

Although the Irish protocol was contained in the first phase of Brexit talks, what it means practically can only be answered in the second phase. What trading relationship the EU and UK have will massively decide what the Irish protocol needs to do.

The Irish protocol is essentially an agreement that there will be no hard border on the island of Ireland as a result of Brexit – but it would only come into effect if trade talks found no other way to avoid a hard border.

Protecting peace in Northern Ireland was one of three red lines of Michel Barnier’s – the EU’s chief Brexit negotiator – during the first phase of Brexit talks, and its inclusion is seen as a diplomatic win by Ireland. 

The Backstop

At one stage, the Irish protocol was the backstop. It drew criticism and caused debates over whether it was necessary to be included in the first phase of talks or not – this is because a hard border will be tied closely to what trade deal there will be.

The backstop would have kept Northern Ireland in the EU’s Custom Union. This would have limited the UK’s ability to strike up new trade deals, and Northern Ireland would have had to obey goods regulations and level-playing field provisions.

This would be the arrangement until the EU and UK agreed to a trading arrangement that wouldn’t require a hard border.

There was opposition to this in the House of Commons at the time, so the backstop was made UK-wide. This would mean the whole of the UK would have to abide by the EU’s tariffs with other countries indefinitely, until another arrangement was put in place.

This was then scrapped, in favour of a new version of the Irish Protocol that doesn’t have a name yet (it’s somewhat mockingly referred to as ‘the frontstop’).

The new arrangement

UK Prime Minister Boris Johnson renegotiated his predecessor Theresa May’s Withdrawal Agreement in October 2019 by removing a version of the Irish protocol – nicknamed ‘the backstop’ – and replacing it with a new proposal.

This new protocol is Northern-Ireland specific, and would see Northern Ireland remain in the UK’s customs territory, but aligned with the EU’s Custom Union.

There’s a lot we still don’t know, but in practice it would probably mean there would be a customs border between Northern Ireland and Great Britain.

The general idea is that if goods are sent from Great Britain to Northern Ireland, tariffs would be paid on those goods, but would be rebated to businesses if they proved the goods stayed in Northern Ireland.

If goods are sent from Great Britain through Northern Ireland to Ireland, tariffs will apply as the goods have gone to the EU, but they will be collected at ports and airports along the Irish Sea – effectively enforcing a GB-NI customs border.

Northern Ireland would stay aligned with the EU on some standards to ensure food, animals and permitted industrial goods can more freely across the Irish border.

British authorities would have responsibility for the checks, but the EU has the right to have its officials present too to ensure the application of EU rules.

Concerns and a Stormont vote

An economic expert said that rebated tariffs for Northern Ireland could be worth £500 million a year, which could cripple Northern Ireland’s SME-driven business sector.

Concerns have also been expressed about businesses that would find it hard to prove where its goods end up and ‘remain’, and so might not be rebated appropriately.

The details of the Irish protocol need to be finalised by a specialised committee, based on the rules and regulations agreed to in EU-UK trade negotiations. 

When a final proposal is agreed, the Stormont Assembly must vote on it. A simple majority would see the proposal continue for the next four years, or cross-community support would see the Irish protocol in place for eight years.

If the vote fails, the protocol would cease to be applied two years later, giving both sides time to try to come up with a workable alternative.

It’s not just you – it is very confusing

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This is very confusing, so if you don’t fully understand it – it’s not your fault.

Sylvia de Mars, a Senior Lecturer in Law at Newcastle University has examined the details of the Irish protocol – the various drafts and annexes – for three years and has said that it still doesn’t make sense to her how it would work in practice. 

Colin Murray, a reader in Public Law at Newcastle University who works with de Mars, told a UK committee last week that Northern Ireland is “at the centre of a very complicated Venn diagram”. 

You have to put together a set of rules that allow civil servants and members of the Northern Ireland executive to legislate for and administer law, essentially having one foot in each of these different arrangements. That itself is difficult to envisage. 

“The UK has never had to arrange its own internal market,” he added.

He said that since the beginning of devolution rules under the 1998 Good Friday Agreement, the British government has “piggybacked” on the EU’s Single Market rules “to allow trade flows to be seamless throughout the UK”.

Now, because of Brexit, it’s going to have to pave its own way on how to trade in and out of Northern Ireland, but also free up the UK to strike new non-EU trade deals.

De Mars told the committee that there are over 300 pieces of legislation needed to keep conditions in Northern Ireland as they are – which is just a snapshot of how complicated the Irish protocol will be.

Addressing a House of Lords EU Select Committee this week, de Mars said that she has been looking at drafts of the protocol for “what feels like three years now”.

“There are still aspects of all drafts of the protocol that I can honestly say I do not fully understand how they are going to work in practice and what their implications are. It’s a tremendously complicated piece of legislative work,” she said.

She said that from the EU’s side:

What needs to continue to apply in Northern Ireland as EU law under the protocol amounts to 300 pieces of legislation that are indicated in all of these annexes. 

Some of these innocuously just sound like ‘the regulation of the Union’s customs code’ but that’s a document that’s almost 2,000 pages long… It’s insanely lengthy. 

De Mars said that the EU is “agnostic” as to how the UK ensures this would remain as part of Northern Ireland’s law, and suggested it could be enacted through acts of parliament or regulations. 

These laws either have to be implemented, or else they are “directly applicable”, meaning the EU regulations have affect in Northern Ireland as if it were a member state.

Where they are affective, citizens in Northern Ireland could go to court anywhere in the United Kingdom and raise cases concerning EU law in Northern Ireland, as enacted under the protocol, de Mars said. 

This could be extremely trick as the UK does not want the EU’s Courts of Justice to have jurisdiction over the UK after Brexit.

She added:

The details of all the actual pieces of legislation that are impacted by this promise, to keep acting as if Northern Ireland is a member state for the purpose of movement of goods, that has yet to be done.

You can find an explainer from the UK civil service on what the Irish Protocol is here.