The admission by the government that ‘exit declarations’ will have to be made on goods traded with Great Britain should bring home to everyone the economic and constitutional damage which the proposed Withdrawal Agreement will do to Northern Ireland’s position as a part of the United Kingdom.
If exit declarations are required to trade within our own UK, what are we exiting?
For us, sadly, it seems more like we are exiting the UK than the European Union.
So it is imperative to proper consider and understand the actual meaning of the Withdrawal Agreement.
It is said Northern Ireland can still be included in UK trade deals. True as a starting point, but Article 4 of the Protocol imposes an important caveat: “provided that those agreements do not prejudice the application of this Protocol”.
So, what is this protocol all about?
Art 5(3) and 5(4) are key.
Thereby all the EU’s customs union rules and single market rules are made applicable to only this part of the UK.
Annex 2 sets out hundreds of EU laws that will apply directly and which NI or UK legislation cannot supersede.
All this on top of the fact that henceforth we will have no say on the making of EU laws, but be a supplicant rule-taker under the sovereignty of the European Court of Justice.
The effect of Art 5(3) is sweeping in applying the entirety of the EU customs code and tariffs to Northern Ireland (as set out in Regulation (EU) 952/2013 - Art 5).
For all practical purposes, therefore, we are in the EU customs union.
So, goods coming to NI from GB which could pass on into the Republic will be treated as if coming from a foreign country that is outside the EU and be subject to checks and tariffs, where relevant.
There are limited exceptions for personal goods.
The key determinant is whether the goods are at risk of subsequently moving into the Republic/EU.
The presumption (Art 5(2)) is that goods will pass into the EU, which can be rebutted if it can be shown they “will not be subject to commercial processing in NI” and meet EU single market standards (hence, resulting Irish Sea border checks).
A Joint EU/UK Committee (subject to EU law) will in due course establish criteria for deciding if goods are not at risk of moving into the EU.
Note, again, the onus on showing that goods won’t, rather than will, pass into the EU.
So, everything coming from GB to our manufacturing or processing base will be automatically subject to EU tariffs.
The UK through a bureaucratic process will have the right to refund tariffs paid by NI business, but subject to EU state aid rules which could cap the extent of rebate (Art 5(6) & Art 10).
But, isn’t trade from Northern Ireland to Great Britain unfettered?
Art 6(1) and 6(2) set parameters. Under 6(1) any prohibitions or restrictions in EU law on the exportation of goods from the EU to third countries would apply to our exports to GB!
So, if in pursuit of some EU fetish the exportation of certain types of goods, maybe, for example, in the munitions field, was banned, then, NI could not send them to the rest of the UK.
Then, Art 6(2) raises the spectre of export controls at NI’s ports and airports, lest we infringe some EU embargo on exports!
So, as is now clear from the Brexit Secretary’s admission on ‘exit declarations’, it is not just an inward border that is in view, but also an outward border, which brings home the reality that we are to be treated to all intents and purposes as part of the EU.
And, of course, NI’s goods will be separately labelled as ‘UK/NI’, again underscoring us as a place apart within the UK (Art 7).
While within the protocol there is the certainty of checks from GB to NI and the possibility of checks going to GB, it needs to be remembered that in order to protect the GB market from being flooded with EU goods through the backdoor of NI, the UK of its own volition could of necessity establish checks between NI and GB.
It should also be noted that under Art 12 EU officials can be present at border checks at NI’s ports with the full powers of EU law and protection of the ECJ, underscoring in a visible way our vassalage as an EU outpost.
Arts 8 and 9 further divorces us from GB by enveloping us in the EU’s VAT regime and the EU’s single electricity market rules — none of which we can make or change.
Little wonder Boris Johnson a few months ago spoke of the very concepts set forth in this agreement as tearing at the very fabric of the Union.
To see his promise that no UK prime minister could ever agree to such, torn up so spectacularly is betrayal of the highest order.
Made all the worse by the fact that from his past utterances he knew he was betraying the Union of Great Britain and Northern Ireland.
• Jim Allister QC MLA is TUV leader and MLA for North Antrim