Is the Northern Ireland protocol illegal?

Nearly 5 months into Brexit, and Northern Ireland’s withdrawal from the EU, the Northern Ireland Protocol is continuing to face criticism as an unworkable, and potentially illegal, solution. 

The Belfast High Court is hosting a legal challenge to the protocol by unionists as the UK also appeals to the EU to renegotiate a fairer operation for both sides, with the EU also accusing the UK of breaking international law by unilaterally extending grace periods in an effort to mitigate disruptions in trade to Northern Ireland. 

Practically, the illogical customs rules at the Irish Sea create a disconnect between Northern Ireland and the remainder of the United Kingdom. Businesses and logistics providers have suffered as a result of increased paperwork checks, delays, and the resulting costs.

Politically, the Northern Ireland Protocol has caused tensions as it has been accused of illegally undermining both the the Acts of Union and the Belfast Agreement (Good Friday Agreement).

The Acts of Union, which created the United Kingdom of Great Britain and Ireland in 1800, formed a single customs union between Britain and Ireland. 

The Northern Ireland Protocol states that Northern Ireland remains the customs territory of the United Kingdom; however, the UK must carry out any customs checks that are required by the EU, effectively leaving Northern Ireland inside the EU’s customs union in practice.

This violates the Good Friday Agreement, which states that “Northern Ireland in its entirety remains part of the United Kingdom” until consent is given to withdraw by a referendum. If the customs union is controlled by the EU, in practice, then the Northern Ireland Protocol undermines the Good Friday Agreement, considered a part of Northern Ireland’s constitution.

Who can cancel the Northern Ireland Protocol?

The Northern Ireland Protocol involves the EU, the Republic of Ireland, Northern Ireland, Great Britain, and the United Kingdom, with the crossovers creating a lot of confusion over who is responsible for it. 

The protocol was negotiated between the EU and the United Kingdom as part of the Brexit agreement, with both sides responsible for amendments. The only exception is under Article 16, which allows either side to unilaterally suspend part of the agreement that causes economic, societal or environmental difficulties.

Unionists have put pressure on the United  Kingdom to invoke Article 16, and discontinue the Northern Ireland Protocol entirely, due to the conflictions that it has with the Good Friday Agreement and the Acts of Union. 

Discontinuation of the Northern Ireland Protocol would remove the customs border at the Irish Sea, but there would need to be a new solution for trading between the Republic of Ireland and Northern Ireland to compensate.

What is next for Northern Ireland? 

 

Belfast High Court continues to host the appeal of the unionist parties on Monday. Their aim is to remove the Northern Ireland Protocol so that Northern Ireland may remain part of the United Kingdom’s customs union, and improve trading with mainland Britain. 

The United Kingdom has appealed to the European Union to renegotiate some of the customs checks to reduce complications at the border. The main concerns are over foodstuffs, and other health products, for which the EU has strict trading standards. Some UK government officials have set a deadline of July 12th, for restrictions to ease, following riots earlier this year.

The EU have insisted that it was clear there would be checks when the agreement was made and are not currently opening renegotiations. Furthermore, the EU has begun legal proceedings against the United Kingdom after the unilateral decision to extend the deadline for relief of checks on some perishables from the end of March to the end of October. 

In the meantime, the outcome for trade between Northern Ireland, the Republic of Ireland, and the United Kingdom remains unclear as businesses navigate the restrictions at the border. 

If your business is affected by the Northern Ireland Protocol, get in touch with our customs clearance experts! We are here to help you process your goods through customs.

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