There has been much focus on UK-EU fish and financial services agreements post Brexit, but a major flashpoint in future negotiations will be the coming border in the Irish Sea. For the last few weeks, the two sides have been exchanging verbal warnings ahead of negotiations that will take place in an atmosphere that appears increasingly combustible. Prime Minister Boris Johnson has said that “emphatically” there will be “no checks” on goods flowing from Great Britain into Northern Ireland, but in reality he has done nothing to change the white paper issued by the Government on that respect.
But a document released by the Government explains Northern Ireland will be subject to EU rules and regulations and aligned with the bloc after Britain’s exit.
The Government’s own internal analysis on the Irish Protocol, or Northern Ireland Only Backstop, was leaked during the general election campaign. It said there would be checks on goods in both directions between the two parts of the UK.
It also said there would be a devastating impact on the Northern Irish economy and claimed 98 percent of Northern Ireland export businesses would be “likely to struggle to bear this cost” of customs declarations and documentary and physical checks on goods within the UK.
Amid emerging differences over how the Irish Protocol will operate, sources say Article 12 of the Protocol gives the EU the power to take infringement proceedings against the UK through the ECJ.
RTÉ’s Europe Editor Tony Connelly explained: “Some more clarity on how the EU sees the way the Irish Protocol has to be implemented.
“The top line is, the Protocol binds the UK to putting in place checks and controls on GB-NI goods.
“If it fails to do so the EU can take the UK to the European Court of Justice (ECJ).”
He said: “This may sound unsettling to Brexiteers, but it turns out the UK agreed to this in the Withdrawal Agreement. Article 12(4) of the Protocol: ‘In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties in this respect.
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‘The second and third paragraphs of Article 267 TFEU shall apply to and in the United Kingdom in this respect’.”
Recent statements by Prime Minister Boris Johnson and Foreign Secretary Dominic Raab, that no checks or controls will apply on consignments of goods crossing the Irish Sea, have raised concerns on the EU side over the UK’s commitment to the Protocol.
Echoing those statements, the new Secretary of State for Northern Ireland, Brandon Lewis today said that there would be no border in the Irish Sea.
Earlier this month, Mr Raab said claims that there would be checks and controls were “directly in conflict, not just with the Withdrawal Agreement but the undertakings in the political declaration setting out the two sides’ future relationship”.
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However, Michel Barnier, the EU’s chief negotiator, and Ursula von der Leyen, have made it clear that checks and controls will apply when the transition period comes to an end by 31 December.
Michel Barnier, the EU’s chief negotiator, said checks are an “indispensable” consequence of the UK’s decision to leave the single market and customs union.
Only by conducting the checks in the Irish Sea can they be avoided on the Irish mainland.
Mr Barnier told an audience in Belfast last month, “I understand the fears of negative economic fallout expressed by some about these checks, but Brexit unfortunately has consequences that we must manage.”
Several times during the general election, Mr Johnson campaigned that there would be no checks on the Irish sea, and was accused by the opposition of lying.
But the deal the Prime Minister signed up to in November makes it clear that there will indeed be checks.
Mr Barnier said during a sitting of the European Parliament that, “the implementation of this foresees checks and controls entering the island of Ireland”.
He added: “I look forward to constructive cooperation with British authorities to ensure that all provisions are respected and made operational.”
Outgoing Irish taoiseach Leo Varadkar fought in negotiations that an Irish Sea customs border was the only basis for a Brexit deal.
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