How to fix the Ulster Protocol

The Ulster Protocol (the “Protocol on Ireland/Northern Ireland”) has come to haunt us earlier than expected. It was trouble waiting to erupt, but might have been handled far better, and could still be.

The current problems might arise through idiocy, malice or as part of a political game. I tend to the first explanation, but gaming comes into it.

The scheme of the Protocol has been discussed on this site before in the wider context. It needs revisiting for itself.

In context, some seven times more trade passes between Northern Ireland and Great Britain than between Northern Ireland and the Irish Republic, but that border across the island has more psychological impact as traffic passes back and forth without hindrance, without the need for ships. The Protocol expresses its aim as avoiding any trade border between Ulster and the rest, but still so as to allow the EU to control its own external trade border, which seems like a contradiction, hence the odd provisions to square the circle.

The Protocol is one-way: it looks at goods passing from Great Britain into Northern Ireland, not goods passing the other way, which are not the European Union’s concern.

Northern Ireland therefore remains, and is explicitly stated to be, part of the United Kingdom’s single market and customs area, but people and businesses in Ulster are given privileged access to the European Single Market. The block is that goods travelling from Great Britain must be processed as exports before they reach Northern Ireland if they are “at risk of” entering the Irish Republic and thus the European Union. Therein lies the rub: anything could be deemed to be “at risk of” entering Eire.

Guilty until proven innocent: Article 5 states that no customs duties are payable on goods entering Northern Ireland unless they are at risk of entering the European Union, but that ‘unless’ is turned on its head:

2. For the purposes of the first and second subparagraphs of paragraph 1, a good brought into Northern Ireland from outside the Union shall be considered to be at risk of subsequently being moved into the Union unless it is established that that good:
(a) will not be subject to commercial processing in Northern Ireland; and
(b) fulfils the criteria established by the Joint Committee…

Therefore there is a presumption of the risk.

A moment though: Article 5 refers to customs duties, and there are no customs duties between the United Kingdom and the European Union, so the whole Article is redundant. There is nothing else referring to those goods allegedly at risk of entering the European Union.

The further provisions of the Protocol apply some parts of European Union rules within Northern Ireland. This is a particular bugbear: it is intended to make things easier for goods and services to flow south to north, but imposes foreign law, the escape from which was one of the major benefits of Brexit.

The immediate interference with trade within the United Kingdom is a system of checks being imposed at Stranraer and Cairnryan. It is doubtful whether these are necessary at all under the Protocol. There are no customs duties being demanded nor should customs declarations be demanded as no duty can become payable: the only customs duties payable for goods entering Eire from Great Britain are on goods originating outside the United Kingdom, and that is a tiny proportion of all goods shipped. The applicability of the Protocol in this case is questionable in any case.

Were it just about customs duties, the Protocol would be wholly redundant. There is though the ‘hidden’ clause, Clause 5:

Articles 30 and 110 TFEU shall apply to and in the United Kingdom in respect of Northern Ireland…

This innocuously technical phrase imposes the EU’s customs code upon Ulster, and this is the whole cause of the hold-ups at the ports.

The Protocol was for a limited purpose, the vast bulk of which is inapplicable with the EU-UK Trade and Co-operation Agreement in place. However leave it to an officious clerk and he will not just make a meal of it but a nine-course feast.

The customs officials in Rotterdam, one of the most important commercial ports in the world, check a small fraction of the consignments passing under their eyes: main shippers have to be trusted. Could it be that those posted to Stranraer are making work for themselves? If there is no strict need for checks, then they can be withdrawn completely. It is only for goods travelling on into the Irish Republic, and that is not the concern of the British government. To be more concerned for the interests of the EU than the EU itself is would be a familiar trait in the Civil Service, and one we could well do without.

A question then: why are these checks so frequent? Is it not British officials running them, in which case it is not the EU’s fault but our government’s, for not telling them to go easy. Nelson, coatless on deck said “Zeal in my country’s service keeps me warm”: for the customs men, is it zeal in a foreign country’s service?

The immediate answer then is just to withdraw all checks and paperwork.

If lawyers descend upon the fine detail of the Protocol and its annexes and read around other implied legislation and demand that border checks be re-imposed, then the Protocol becomes intolerable, going beyond the plain words agreed to. In that case a small amendment to reverse the presumption of risk would serve, which could be a change to the Protocol itself or by a decision of the Joint Committee. It seems excessive though for Articles which are in essence redundant.

The EU should be subdued after their recent misbehaviour, but they might in time cut up rough when they can see that the British government is not going to persecute its on people.

If they demand that there be bureaucracy imposed on trade and it is not being imposed in the ports of the North Channel nor of course on the border, then they have an obvious course open to them: reverse the Protocol. Instead of Ulster being given special access in return for a semi-detachment from the rest of the country, give the Republic of Ireland that access to the British internal market with check at the continental ports. It would make more sense given that vastly more trade passes from Eire to the United Kingdom than between Eire and the continent.