Journalists this morning learnt more about how the government plans to “clarify” the withdrawal agreement signed by Boris Johnson in January. The government claims this would not amount to overriding the agreement, but the new proposals would go beyond what was set out in the Northern Ireland protocol part of the withdrawal agreement, in a manner clearly advantageous to the UK.
The government wants to make changes in three areas. As is sometimes the way in Westminster journalism, reporters learnt about these plans through a mysterious process that did not involve anyone using attributable quotes. But here is what we found out.
The UK and the EU have been discussing how to implement the Northern Ireland protocol through the joint council set up by the withdrawal agreement. It is jointly headed by Michael Gove, the Cabinet Office minister, and Maroš Šefčovič, a European commission vice president. The UK government says it is pleased at the progress that has been made, that it is taking extensive steps to implement the protocol, but that there is a risk that some issues might not be resolved by the end of the year, particularly if there is no UK-EU trade deal, and that therefore ministers need to take powers to tidy up aspects that might otherwise be left in legal limbo.
It is pointed out that this was made clear in a government paper (pdf) published in May on the UK’s approach to implementing the protocol. For example, that document said that the government was committed to “legislating by 1 January 2021 to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market”.
The government wants to clarify the law in three areas.
Exit summary declarations: The withdrawal agreement says traders exporting from Northern Ireland to Great Britain will have to fill these in, but the UK government says the protocol also says there should be “unfettered access” for Northern Ireland traders to the UK market and it want to resolve this contradiction by getting rid of exit summary declarations for NI/GB trade. This would retrospectively justify Johnson’s claim in November 2019 that any demand for such forms could be thrown in the bin. (See 10.05am.)
Tariffs: Under the protocol EU tariffs could apply to goods going from Britain to Northern Ireland if they are “at risk” of entering the EU market (by crossing the border into Ireland). But the protocol does not define what “at risk” goods are. The government wants to give UK ministers the power to decide this unilaterally.
State aid: The protocol says EU state aid law will apply in Northern Ireland. The UK government accepts this in so far as it refers to subsidies going to firms in Northern Ireland. But it is concerned that the protocol, as it stands, could also apply to firms in Britain if they have ancillary relations with firms in Northern Ireland. It wants to eliminate this risk by allowing the UK government to decide in what circumstances EU state aid rules apply.
The government’s view is that these changes would not undermine the protocol.
It is going to give itself powers to make these changes through the internal markets bill and the finance bill because these are the legislative vehicles available that will be on the statute book by the end of the year.
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