The UK paper on implementing the Protocol skirts as close to the rocks of EU disapproval as possible. But it may have just done enough to avoid a fresh crisis over the Irish question.
It's clearly a document designed to reinforce the bond between Northern Ireland and Great Britain.
"Our approach [to implementing the Protocol] will be guided at all times by our overall aims of preserving and strengthening Northern Ireland’s place in our United Kingdom," it states.
This was always expected. When Boris Johnson renegotiated the Protocol last October, he dropped the idea of a customs border on the island of Ireland and accepted that the locus for checks and controls on goods going from Great Britain to Northern Ireland would have to be at Northern ports and airports.
It was a brutal defenestration of the DUP from the heart of Tory policy on Brexit. Downing Street has since been trying to make it up to unionism by making claims that there would be no checks or controls either way at all, stretching credulity in the process, or by carefully nudging the rhetoric into an admission that, yes, there would be new administrative processes, but they would be as smooth as possible.
Dublin is highly alert to any danger that the UK believes the Protocol is simply a "temporary little arrangement"
The initial reaction from Brussels has been cautious. A European Commission spokesperson welcomed the paper, but added: "The time to implement the Protocol is short, and practical implementation measures must start immediately so that the Protocol can be operational by 1 January 2021."
In reality, today’s paper is a further rhetorical reassurance for unionists, and not the technical detail that the European Commission has been asking for.
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Downing Street has also been "nakedly", according to one senior Irish figure, taking the moral high ground on the Good Friday Agreement (GFA) in any of its recent briefings on how it would implement the Protocol.
Sure enough, today’s paper begins with the words, "[t]he Northern Ireland Protocol exists to ensure that the progress that the people of Northern Ireland have made in the 22 years since the Belfast (Good Friday) Agreement is secured into the future."
The UK argues there is no point in swapping nationalist antagonism over a Brexit-related land border with unionist antagonism over a sea border.
The paper makes the link between the consent provisions of the GFA and the consent that the revised Protocol inserts into the post-Brexit arrangements, by way of a Stormont Assembly vote four years after the Protocol comes into effect.
What rankles Dublin, however, is that the consent principle in the GFA is strictly about the North’s constitutional status and any move towards unity. Dublin still believes that the Protocol is a practical solution to the awful Brexit conundrum, and not a constitutional threat.
Critics are also quick to point out that the consent of the people of Northern Ireland to Brexit itself was not given.
The paper also emphasises repeatedly that the Protocol is not necessarily permanent, and that it is only there provisionally but for the grace of the Northern Ireland Assembly through the consent mechanism.
"The Protocol is not codified as a permanent solution; it is designed to solve a particular set of problems and it can only do this in practice as long as it has the consent of the people of Northern Ireland," the paper states.
It’s important to point out (and the paper implicitly acknowledges this), that the Assembly can only decide in a cross-community vote to discontinue certain articles of the Protocol, namely Articles 5-10, which deal with customs, the movements of goods, VAT, state aid and other issues.
That means all the other aspects of the Protocol, including protecting cross border cooperation and the rights of Northern Irish citizens, will remain even if the Assembly takes a hostile position four years after the Protocol comes into effect.
It’s also important to remember that if that happens, then we are back in the quagmire of trying to figure out how to avoid a hard border on the island of Ireland.
Dublin is highly alert to any danger that the UK believes the Protocol is simply a "temporary little arrangement".
Ahead of the publication of the paper, one senior Irish official said: "We’ll be watching closely how that gets referenced in the paper. There may be a temptation to say, this is only here for a few years so we don’t need to be doing a huge amount. That would have to be scrutinised pretty carefully [to be sure] that it doesn’t tilt too hard to the notion that this is only a temporary arrangement."
Before getting into the detail, the paper again sets out the UK’s idea of how to proceed. The way the Protocol is implemented should be "consensual, pragmatic and proportionate," and the Protocol itself states that it "should impact as little as possible on the everyday life of communities."
This might sound reasonable. However, the European Commission takes the view that it has to protect its single market and customs union through precise legal obligations, rules that every other third country importing goods into the EU has to abide by.
The mantra from officials in Brussels has been that there are flexibilities within the rules, but no derogations from the rules.
That is why the Commission has bridled at UK ministers suggesting that the Joint Committee, which brings both sides together to implement the Withdrawal Agreement, will be a forum for whittling down customs and regulatory formalities.
Dublin is betwixt and between, knowing that the issue must be handled sensitively given the North's fractious politics..
The EU is adamant that the Joint Committee is principally there to work out which goods moving from GB to NI are at risk of crossing the land border, and how tariffs should be exempted or reimbursed if they are not at risk.
Paragraph 10 of today’s paper reopens that particular sore.
It recalls the New Decade, New Approach document which helped restore the Northern Ireland institutions which "included a firm commitment from the UK Government to exploring additional flexibilities and sensible practical measures across all aspects of the Protocol to maximise the free flow of trade".
That sounds to the EU like the UK is using the Joint Committee as a negotiating forum, and not a body to implement what has already been negotiated.
Paragraph 12 sets out the importance to the North’s economy of the link to the UK. It states that the latest figures show that nearly 23,000 NI businesses trade to and from Great Britain, with west-east goods amounting to £8.1bn with £10.5bn worth going in the opposite direction, totally 56pc of Northern Ireland’s total external trade in goods.
Again, the link with the Good Friday Agreement is made here. If the Commission does not take a "proportionate" approach to those checks, controls and tariffs, then Northern Ireland’s prosperity, and "the economic development that the 1998 Agreement recognised was essential to a broader transition to a peaceful and shared society," would be at risk.
Critics will say this is essentially shifting the moral burden of the Brexit project, when it comes to its impact on a peaceful and shared society in Northern Ireland, over to the European Commission.
Senior sources in Brussels are at pains to point out that Boris Johnson knew full well that the Protocol would have this impact on GB-NI trade when he signed it in October last year.
Paragraphs 14 to 36 set out how the UK intends to protect Northern Ireland within the UK’s internal market.
These issues go to the heart of the political sensitivities around the Protocol.
Again there is a lot of reassuring language here for unionists. It is spelt out that Article 4 of the Protocol makes it clear that Northern Ireland is part of the UK’s customs territory.
That is true. However, Northern Ireland will be operating under the EU’s customs rulebook.
The paper then makes a link between the UK having a single customs territory and the fundamental requirement that there can be no tariffs between one part of that territory and another.
"This fundamental reality is central to the way the Protocol needs to be implemented, given its clarity that Great Britain and Northern Ireland form one customs territory," the paper states.
The paper goes on to say that the Protocol does not give rise to an "international" border on the Irish Sea.
"That means its provisions must entail the minimum possible bureaucratic consequences for business and traders, particularly those carrying out their affairs entirely within the UK customs territory," it continues.
The EU may find this something of a stretch. No-one has ever said there would be an international border on the Irish Sea. Nor does it necessarily follow that because there is no international border, then the Protocol "must entail the minimum bureaucratic consequences" for Northern businesses. The Commission will argue that Boris Johnson chose to adopt this model, and that the model proposed by his predecessor Theresa May (and rejected by Johnson) would have had a less bureaucratic impact on Northern businesses.
The paper then gets into what happens with trade going both ways between Northern Ireland and Great Britain.
It says there should be no additional processes or paperwork or restrictions on Northern goods going to the rest of the UK.
This is, as the paper points out, reflected in Article 6 of the Protocol, which states that "nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market."
The EU has always believed that the promise of unfettered access is one that the UK has made to Northern Ireland, and that it solely applies to trade going from the North to Great Britain.
Later the paper spells out what unfettered access for goods going NI-GB means: no import customs declarations, no entry summary declarations, no tariffs, no customs checks, no new regulatory checks, no additional approvals needed to sell NI goods in the GB market, and no need for export or exit summary declarations.
Most of that paragraph the EU will have no problem with. However, the EU has made it clear that its customs rulebook (the Union Customs Code, or UCC) would require goods leaving Northern Ireland to have an exit summary declaration.
The UK paper spells out that an exit summary declaration would not make sense as the goods are only going to the rest of the UK. This is clearly an issue which will be fought over in the Joint Committee, and it is unlikely the EU will back down on the requirement.
Then we get to the key question of goods going from GB to Northern Ireland.
The paper states boldly that "we will not levy tariffs on goods remaining within the UK customs territory."
The paper explains that "only those goods ultimately entering Ireland or the rest of the EU, or at clear and substantial risk of doing so, will face tariffs."
This much is true. However, both sides take a fundamentally different view of where the tariff hammer falls.
To the EU, Article 5 of the Protocol, which covers the tariffs issue, essentially means that all goods coming in from Great Britain are at risk of going south. In other words, they are guilty until proven innocent. A strong case will have to be made that certain goods, or categories of goods, will not cross the border south.
Once that case is made, Northern importers will either get a tariff exemption or a rebate, depending on the nature of the good.
Here the UK is taking the opposite view. It believes all goods are innocent until proven guilty, and that the Commission will have to make the case that the goods are at risk of crossing the border.
Indeed the paper states bluntly that a consignment of goods going to a Northern Irish supermarket "poses no 'risk’ to the EU market whatsoever, and no tariffs would be owed for such trade".
Where a business can certify that it is selling goods only in Northern Ireland and not across the border, or where goods are perishable and there would therefore be no point in shipping them across the border, or where it wouldn’t make economic sense, then those goods should not be deemed at risk.
However, the EU insists that if there are any goods which have a lower tariff in the UK then there will be a temptation for smugglers to circumvent those tariffs. The perishable goods argument could be challenged on the basis that a consignment of goods landing in Warrenpoint could be in a supermarket in the south within the hour.
All this will have to be thrashed out in the Joint Committee, but it seems clear that the EU will take a narrow approach to exemptions, and it’s understood this was made clear to the UK during the negotiations.
The paper goes on to say that the UK will not build any new infrastructure to facilitate customs procedures.
This will certainly raise eyebrows. But the word "new" here is key. There is sufficient wiggle room for the UK to quietly expand existing customs infrastructure to comply with the checks and controls required.
Essentially, the UK will be implementing the EU’s customs code on its behalf. Indeed, currently all national customs agencies, including the Revenue Commissioners, implement EU customs rules in their own way when it comes to trade coming in from third countries.
The European Commission will want to know how the UK intends to put that into effect on the ground, both to carry out customs procedures for GB goods and for goods coming in from the rest of the world.
Each member state has a degree of discretion, but there are some 63 checks and controls, including for things like safety, security, endangered species, which must be carried out, or are applicable. In the paper the UK accepts that these more exotic checks will also have to be done on goods coming from Northern Ireland to Great Britain, but these will apply "only to very minimal volumes of relevant trade necessary to comply with those obligations. For goods affected, the processes put in place in these very specific cases will have negligible implications for trade as a whole."
Can the UK perform the full panoply of EU checks in Northern Ireland without any new infrastructure? This will be one to watch. UK sources suggest that when it comes to checking goods from the rest of the world, Britain tends to check around 4%, and that given the right kind of pragmatic approach, that could be lowered even further with the help of electronic declarations and processing.
The paper does concede that when it comes to agrifood the UK will "expand some existing entry points."
This (deliberately) sounds like an afterthought, but it remains the most taxing problem: how to create Border Control Posts that can comply with EU requirements when it comes to live animals and agrifood products.
Put simply, the North has not had to have such inspection posts in place since until Brexit it did not have to deal with substantial inflows of trade from outside the EU.
For the UK to carry out regulatory checks on agrifood products on behalf of the EU, it will need to expand the facilities it has at Northern ports, set out which categories of checks it can carry out, set out how many veterinary experts it will deploy at those facilities, and then get each of those elements in turn inspected and then approved by the European Commission so the ports in question can be formally authorised as qualified to assess whether incoming goods meet EU food safety and animal health standards.
The paper repeats the insistence that the EU cannot have a physical presence in Belfast to allow officials to oversee the operation of the Protocol.
However, it does not set out any detailed alternatives. This issue has been parked for the moment, but when the full outworking of the arrangements are concluded via the Joint Committee, the EU will want to know how they can have an effective oversight mechanism.
The European Commission will examine the paper closely before responding in detail. A further meeting of the specialised committee is due in early June, and that is when many of these conflicted issues will be opened up.
Dublin is betwixt and between, knowing that the issue must be handled sensitively given the North’s fractious politics, but aware too that they can’t go on a solo run and diverge from the Commission’s thinking, and that of the member states, who are watching this carefully.
"My worry would be," says one senior Irish source, "that the sum of parts seems so light in terms of implementation that it spooks the Commission. That’s a risk. There’s quite a bit in the Protocol which is open to interpretation, or open to a light or heavy touch approach. We should now have that debate and that discussion with the UK."
