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Yesterday we heard reports that the UK government was planning to undermine the Northern Ireland Protocol through UK internal market bill. Today, we saw a top government legal advisor resign - this suggests it's serious. So what this all about? Thread👇
So first thing to say, is we won't know what the bill actually says until it is published (expected to be tomorrow). But No 10 has suggested that ministers will take powers to 'remove ambiguity' if certain issues are not resolved by the end of the year.
Remember this version of the protocol was hastily negotiated. Lots of gaps were left and key decisions deferred to the Joint Committee (UK-EU body), including criteria according to which goods going GB-NI would be deemed 'at risk' of moving into the EU & subject to tariffs
The protocol doesn't explicitly say what happens if the JC doesn't make a decision. But the way it is written implies that goods are guilty unless judged innocent, so in the absence of a decision tariffs could be payable on *all* goods moving GB-NI
According to reports, the 1st think the UK gov intends to do is give UK minister the power to define 'at risk' unilaterally. What the UK may be trying to do is change the default. Can it do that? Probably not, but note the protocol also says this:
The second thing the UK gov is to take the power to waive export summary declarations. These are the only thing required on NI-GB trade (most of the requirements are on GB-NI trade) under EU customs codes, which the protocol states applies in full in NI.
The UK has been looking to get an exemption from these declarations through the Joint Committee (note: not a task given to it by protocol). Will this make a big difference to NI businesses? No, it's a short electronic, cost-free form; for UK gov it's about symbolism
The UK government has committed to 'unfettered access' for NI businesses, which it defines in its command paper as no exit summary declarations. So UK will want to deliver on this - but without a decision of the JC, waiving them would be a breach of the protocol.
Third, UK wants to make changes to the way state aid law applies. @GeorgePeretzQC and others have made the point that UK gov may not have realised that NI's state aid obligations under the protocol, might have wider implications for GB law - so likely to want to row back on this.
Discussions in the Joint Committee are ongoing and UK gov is saying that it will only use these powers if these issues are not resolved by the end of the year - they are a 'backstop' if you will. So likely they are intended to influence JC discussions - and gain support at home.
But ultimately threatening to undermine international obligations will not necessarily help the UK get what it wants. As we said in our @instituteforgov report in May, damaging the EU's trust in the UK's willingness to implement the protocol may provoke a more hardline approach.
The UK government claims that it is doing this for the benefit for NI businesses. But who has actually asked for this? In my experience, most NI businesses accept the protocol and are trying hard to make it work well. In their eyes, threatening to undermine it isn't helpful.
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