My note on why the new NI Protocol is in breach of section 55 of the Taxation (Cross border Trade) Act. legislation.gov.uk/ukpga/2018/22/…
A couple of points worth drawing out.
1. The default position is that all NI imports from GB or the rest of the world will be subject to the full panoply of EU customs rules and tariffs. Limited exceptions have to be proved by the importer.
2. The application of EU customs rules goes much wider than goods which have a real prospect of ending up in Ireland/the EU.
For example, sugar and flour headed for a small Belfast baker will always have to pay applicable EU tariffs (whether the flour comes from the US or Norfolk), even if none of the baker’s cakes go south of the border.
3. EU trade remedies (anti dumping duties) will apply to all imports to Northern Ireland. Full stop.
4. Reimbursement of EU tariffs by the U.K. government is restricted by State aid rules: above low limits they will need to be approved by the European Commission.
5. The claim in Article 4 that NI remains part of the U.K. customs territory is no more than an assertion. Sticking a “these are not class A drugs” label on your class A drugs does not alter the legal position.
In any event, the claim addresses the wrong target (the right target being whether NI is in the EU customs territory). On analysis, it is in the EU customs territory and s55 is breached.
6. Does it matter? Well, the framers of s55 (including one Jacob Rees-Mogg) presumably thought it meant something. If it doesn’t matter now, when would it ever matter?
And if Parliament is to keep control of government handling of future trade agreements (as eg @AngusMacNeilSNP has argued) it will need to pass more provisions like s55: and make the government stick to them.
NB also the deliberately convoluted drafting of Article 5: on a casual reading you’d think GB tariffs and customs rules were the default with a carve out for goods heading to Ireland. But once you probe the draft, you see that actually the default is EU tariffs.
I’m purist enough to believe that drafting of important legal provisions should not aim to mislead.
