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A new deal; now what?

Nigel Morris-Cotterill

Both UK Prime Minister Boris Johnson and EU President Junker have announced that a revised deal has been done for the UK to withdraw from the European Union. But both accept that it's not a done deal. Junker has to go back to the European Commission and its 27 members some of whom are resistant to the principle of "Brexit." Johnson has to go back to the House of Commons where several party leaders are, in effect, filibustering to defeat the withdrawal on any terms. And in Brussels, in the EU Parliament, which also has to sign off on the deal, the UK's Brexit Party's leader, Nigel Farage, has already said he doesn't approve of it.

In relation to customs, Ulster is declared to be "part of the customs territory of the United Kingdom" and the UK is expressly approved to include Ulster in any agreements that the UK may be entered into with third countries. There is an express provision that, if the UK government enters into trade deals with third countries that grant preferential treatment to UK produced goods, goods produced in Northern Ireland will be included in such agreements.

On the question of tariffs, the proposed position is in fact extremely simple and depends on the declaration of ultimate destination. Goods coming into Northern Ireland directly from any other part of the UK will be tariff free. If their final destination is the Republic, then UK customs in Northern Ireland ports will collect tariffs on behalf of the Republic. There are some other technical provisions relating to goods brought into Ulster from outside the UK and processed in Ulster and then exported.

For the purposes of this paragraph, ‘processing’ means any alteration of goods, any transformation of goods in any way, or any subjecting of goods to operations other than for the purpose of preserving them in good condition or for adding or affixing marks, labels, seals or any other documentation to ensure compliance with any specific requirements.

This will be subject to review by the Joint Committee which is created by the UK and the EU to manage transition but whether it remains in place or is revoked in due course will be a decision made by the Ulster government (if it ever actually sits properly which, for a while, it has not done).

There are many other provisions which deal with detail and are clearly designed to provide comfort to both sides of the border. For example "nothing in this Protocol shall prevent a product originating in Northern Ireland from being presented as originating in the UK when placed on the market in Great Britain.

Of vital importance to Northern Ireland is that once the UK is outside the EU, it will to a point be constrained by EU rules on state aid. Northern Ireland needs far more money than it generates from taxes (as does Scotland). That point is that the UK will be able to provide directed support to agriculture with reference to both EU law and the WTO Agreement on Agriculture. The reason is simple: it's to avoid distortion of the ag market with the Republic which is heavily dependent on agriculture.

While the UK is responsible for implementation, compliance will be monitored by the EU.

In relation to Ireland, there is limited application of the European Court of Justice and, in such proceedings, the UK shall have locus standi as if it were a full member of the EU.

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