Stephen Kinnock: Sorry, I missed that last section of the conversation, but hopefully my question will not cut across what may have already been said. I am just thinking about this link between the future relationship, the arrangements for the Northern Irish border and the idea, under the customs partnership, that for goods moving from Great Britain into Northern Ireland tariffs would be collected. The non-tariff barrier element plays an important role there as well.
For example, each time there is divergence in terms of tariffs or, indeed, non-tariff barriers, and all the paperwork that goes with it, do you see that, each time that happens, the joint committee would have to approve the agreed gap in tariffs or the agreed gap in paperwork and what needs to be done to fill those gaps, or do you think there is automaticity in that? You would have a system set up and, once it is set up, you would not require the joint committee or any approval process. There would simply be a button pressed and it would happen automatically. How do you see that working?
Professor Phinnemore: If we take the current terms as set out in the withdrawal agreement, there are two types of regulatory alignment. One is what we refer to as dynamic, and that becomes automatic. In the annexes to the protocol, there are listed around 300 directives or regulations that would have continued to apply to Northern Ireland were the backstop provisions to come into force. If there are amendments or replacements to those, those will apply automatically to Northern Ireland.
We have to recognise there the range of provisions. Some of them date back to the 1960s, some to the 1970s and 1980s. Some of them are long-standing, fairly settled legislation. We do not know what likely changes there are in those spaces. If there are new EU Acts that the EU argues should be applied to Northern Ireland in order to maintain the free movement of goods, it will be a decision of the UK and the EU in the Joint Committee as to whether those new Acts apply in respect of Northern Ireland. It is unclear, however, what would happen if the UK did not agree to the application of those new Acts to Northern Ireland. The EU has reserved the right to take appropriate measures.
Stephen Kinnock: Through the European Court of Justice.
Professor Phinnemore: It is unclear. Possibly not through the Court of Justice, but there may be some safeguard mechanism introduced. A comparison would be with the European Economic Area arrangements, whereby if the EFTA/EEA countries do not accept new EU legislation deemed applicable to the single market the EU can suspend, in part or in full, the operation of the EEA agreement.
Interestingly, in the context of the withdrawal agreement and the protocol arrangements with Northern Ireland, there is no such mechanism provided for. My understanding is that there would be essentially political discussion about trying to find ways forward to mitigate the non-adoption of those new EU Acts. How often this would be the case very much depends on the development of the EU acquis as it relates to the free movement of goods.
We also need to be reminded there that the protocol arrangements in relation to Northern Ireland do not cover the entirety of the EU acquis in relation to the free movement of goods. It is a stripped down version of it. My guess at the moment is that we would not see too much change there.
Going back to one of the earlier points about the role of the Northern Ireland Assembly and Northern Ireland Executive, it is expected that the UK Government will be consulting the Northern Ireland Assembly on any additional EU acts that might be applied to the protocol. They will also consult, according to the protocol arrangements, the North/South Ministerial Council, if that is up and running. There will also be mechanisms in place beneath the Joint Committee, so a specialised committee and a joint consultative working group, whereby the UK will be involved in discussions with the EU about proposals coming forward.
A key issue there is how you make sure that Northern Ireland’s voice is part of those discussions. There is an interesting question for the UK Government as to how it creates its delegations to those meetings to ensure there is informed understanding coming out of Northern Ireland.
Chair: That is really helpful.
Stephen Kinnock: That is very helpful.