THE PROTOCOL ON IRELAND/NORTHERN IRELAND (THE BACKSTOP)

The Protocol on Ireland/Northern Ireland aims to avoid the need for a "hard border" between Ireland and Northern Ireland by creating a "single customs territory" (that is, a customs union) between the whole of the UK and the EU.

The provisions of the Protocol are detailed and complex with multiple cross-references to annexes and EU law. Most importantly, the UK will be required to align its tariffs and other customs legislation on that of the EU and also to apply EU commercial policy (including, trade defence measures, GSP, trade concession contained in the EU's trade agreements with other countries). The details are set out in Annexes 2 and 3. The UK will expressly not be allowed to apply lower duties than those applied by the EU. This will probably render impossible the negotiation of trade agreements between the UK and third countries as regards goods.

The Protocol also requires a long list of other goods-related EU legislation, including on agriculture and the environment, to be applied in Northern Ireland (listed in Annex 5). The UK is also required to apply in Northern Ireland EU legislation on VAT and excise duties (Annex 6) and wholesale electricity markets (Annex 7). The Protocol also requires the whole of the UK to respect a series of disciplines to ensure a "level playing field" in respect of taxation, environmental protection, labour and social standards, state aid and competition (listed in Annex 4).

The Protocol is built to last and provides for the amendment and adaption of many of its provisions by decision of the Joint Committee set up to oversee the Withdrawal Agreement (supported in respect of the Protocol by a Specialised Committee with power to examine proposals from the instances created by the Good Friday/Belfast Agreement and a Joint consultative working group for the exchange of information).

The Protocol is however presented as a last resort (or "backstop"). The very first Article provides that it is to apply temporarily "unless and until" it is superseded by a subsequent agreement between the parties who go on to commit themselves to use their best endeavours to conclude an agreement to supersede the Protocol in whole or in part before the end of the transition period.

In addition, the entry into force of the main provisions of the Protocol can be delayed by an extension of the transition period by decision of the Joint Committee for a fixed but as yet undetermined period so as to allow more time for it to be superseded.

It is difficult to see how any future agreement that does not comprise some form of customs union can be negotiated in the foreseeable future if the parties maintain their current objective of avoiding a "hard border" between Ireland and Northern Ireland and the UK maintains its determination not to introduce customs controls between Northern Ireland and the rest of the UK.

Once the transition period ends without an alternative solution, the Protocol will enter into force in its entirety and it provides that it can only be terminated by agreement between the parties following a consideration of whether it is still needed in light of its objectives.

It is noteworthy in this respect that even though the Political Declaration on the future relationship between the EU and the UK expresses an intention to establish a free trade agreement for goods it also speaks of a future customs arrangement building on the single customs territory provided for in the Withdrawal Agreement. The same is said of the other provisions of the future relationship, specifically those guaranteeing a level playing field. All this (and of course the fact that a change in the regime established by the Protocol requires agreement of both parties) suggests that the future relationship between the UK and the EU on trade will continue to involve very close alignment of the UK to the EU system.