Stephen Kinnock: I wanted to follow up on the Chair’s line of questioning regarding the interaction between the implementation of the withdrawal agreement and the future relationship negotiations, focusing in particular on the Northern Ireland protocol. I wanted to ask you a broad and general question on this. On 14 February, the Northern Ireland Secretary said, “We are absolutely clear. As a UK Government, we will not be having a border down the Irish Sea.” As you will know, the Northern Ireland protocol is, in essence, predicated on having a border down the Irish Sea, because Northern Ireland is going to have a significantly different set of rules and regulations with regard to its interaction with the European Union’s customs union and single market from the rest of the United Kingdom.

Can you outline how you think this is going to work in practice? We have signed up to an internationally legally binding withdrawal agreement, which is predicated, in essence, on having border checks down the Irish Sea, but the UK Government are saying, “We will not, under any circumstances, have border checks in the Irish Sea.” At what point are we considered to be in violation of that withdrawal agreement, which is internationally legally binding? At what point would that trigger the termination of the negotiations on the future relationship, because we would be violating the duty of sincere co-operation?

Professor Menon: The first part of that question is easy to answer. I do not know at what point the EU would see the UK as in breach of its obligations. Under article 12 of the protocol, we are liable to infringement proceedings and possibly fines levied by the European Court of Justice, in the event that we are seen to be not implementing the protocol in accordance with the text of the treaty. There is a legal mechanism already contained in the protocol that we have signed up to and approved. At the first hint that we are not implementing, I imagine that will be the route the European Union chooses to go down in the first instance.

Stephen Kinnock: You do not think that the Secretary of State for Northern Ireland’s statement on 14 February, which says, “Under no circumstances will we have checks in the Irish Sea,” constitutes a violation under article 12, as things stand?

Professor Menon: The EU will probably judge the UK on the basis of what it does, rather than what it says. The proof of the pudding there will be in the eating. Certainly my reading of the protocol implies that there will have to be checks on produce going from Great Britain into Northern Ireland. There will be strong pressure, not just from the EU institutions but from other member states, to make sure those checks are carried out satisfactorily.

Stephen Booth: I will take a step back. You said that the protocol was based on the premise of an Irish Sea border. It is based on the premise of respecting the Good Friday agreement and avoiding disruption to the political and economic circumstances in Northern Ireland as far as possible. That should be the starting point, rather than saying, “How do we implement an Irish Sea border?”

Stephen Kinnock: It is a means to an end. You cannot have one without the other.

Stephen Booth: Yes, but the point is this. If there is an intrusive set of checks east-west, how that does not undermine the basic objective, which is to respect the Good Friday agreement?

Stephen Kinnock: It is about the land border primarily, is it not?

Stephen Booth: That is why this issue is contentious. I think for some member states in the EU it is primarily about respecting the integrity of the single market.

Stephen Kinnock: Yes, but the UK has signed up to something that is based on protecting the land border primarily. That was the big shift from having a UK-wide backstop to having a Northern Ireland backstop.

Stephen Booth: It is based on avoiding a north-south border, yes. The question is how you implement the protocol in a way that is as non-intrusive as possible. On things like agri-food, I think everyone recognises the need for certain checks and building on the checks that already exist east-west. For other areas of industrial goods and so on, it is very difficult to see how having an intrusive east-west border is not going to undermine east-west trade and therefore undermine the sustainability of the protocol, which is not in anyone’s interest, including the Republic of Ireland and the rest of the EU. Mechanisms have to be found to move those checks away from ports and so on, looking at the de-escalation of checks that Michel Barnier was talking about a long time ago, in terms of how these things can be checked in-market, as part of the wider regulatory regime we would normally enforce.

Clearly, this is a crucial issue. How this is implemented has the potential to derail the whole process, if I am honest. It is important to take a step back and recognise that the objective of this is to maintain confidence in Northern Ireland of all the communities. A system that undermines that confidence, and I think a hard Irish Sea border would do that, is not in anyone’s interest. Some of the language from the EU side has not been particularly helpful either.

Christophe Bondy: From a technical point of view, the UK is currently as if it were a member state. All the rules and regulations, as though one were a member state, continue to apply, so there is no issue now until the end of the withdrawal agreement period. The interesting thing is to what extent the EU will be mindful of whether the UK is getting ready for what is coming and the point at which it says, “You are not going to be ready for this and therefore we no longer believe you are going to comply with this, so we are suspending negotiations.” From a technical point of view, Northern Ireland will, in effect, remain in the EU, subject to EU rules and regulations. If you want to sell between Northern Ireland and the rest of the UK, you will have to fill out forms. There will be checks. It is the solution this Government agreed to, to preserve peace in Northern Ireland.

Stephen Kinnock: Would it be fair to say that this is going to be a major factor in the June progress check, assuming that we stay on the basis of the current timeline? In that case, what evidence will the European Union be looking for as proof? As you rightly say, Professor Menon, what you do is more important than what you say. What would be evidence that this is going forward in good faith and therefore the future relationship negotiations can continue? The assumption is that that decision has to be made in June. If there is no evidence whatsoever of preparation for a border check, whether it is hard border, soft border, some kind of technical action to show something is happening, I assume that, in June, would be the trigger to terminate the negotiations. What is the EU looking for, in terms of evidence of action?

Professor Menon: I imagine the EU, somewhere in an office in Brussels, has a timeline of the actions that need to be taken and how long they will take to put in place to make the protocol work. The European Union could suggest that we extend transition because, given the pandemic, there is simply no time to implement. It is open to the European Union to suggest that. It is not necessarily the case that they will say, “Not enough progress has been made. We are suspending talks.” They might say, “Not enough progress has been made. We understand the situation because we are in the same situation. Why do we not sit down and talk about extending this process so we can do it properly?”

Stephen Kinnock: Whatever timeline we are in, the expectation will be that measures are being put in place, technical, institutional, the paperwork. Do you all agree on that? Do we know what the UK’s idea of evidence of a border is? The Northern Ireland Secretary has said, “There will not be a border.”

Stephen Booth: This is not just about unilateral implementation on the UK side. There is a joint committee, which is designed to implement this. The job of the joint committee is to try to build processes that are unobtrusive to east-west trade. The first job should be to use that joint committee to try to develop processes that are unobtrusive, that are not impinging on east-west trade. The first job under the protocol is to try to reach compromises between the UK and the EU about how to implement this, rather than the UK unilaterally implementing.

Professor Menon: The UK, under the terms of the protocol, is solely responsible for the implementation of these measures. You are right; there is a joint committee.

Stephen Booth: It is responsible for enforcing the measures that are decided. All it says at the moment is that the Union Customs Code will be the basis for this. I think everyone acknowledges, if you look at this practically, that just enforcing the Union Customs Code is going to be hugely challenging in the context of the political circumstances in Northern Ireland. The job of the joint committee is to look at how those processes can be adapted to respect the wider agreement.

By the way, that also included article 6, which talks about Northern Ireland remaining within the UK internal market. There are obviously conflicting elements here that have been present all along, throughout this whole process, going right back to the joint report in 2017. Political work will have to be done, because if you leave this to technocrats it will fail. There has to be a political process that looks at how these processes are implemented. Just saying, “We are going to copy and paste the EU’s rules and regulations,” is not going to work.

Stephen Kinnock: Can I just drill down on that point, into one aspect of the Northern Ireland protocol? Article 10 relates to state aid. There, it is absolutely clear in the protocol that the full range of EU state aid regulations will have to apply in Northern Ireland. The UK has signed up to that. It is a legally binding contract that we have. It relates of course to trade between Northern Ireland and the EU 27. If, for example, you are producing widgets in Birmingham and selling them to the EU through a branch or sales activity in Northern Ireland, you will be subject to the full panoply of EU state aid rules.
How do you see that playing out in these negotiations? Do you think it is generally accepted as a condition of the talks going forward that both sides recognise that, through Northern Ireland, the UK, one way or the other, is going to be shackled, if you accept that term, to EU state aid regulations, whatever happens?

Christophe Bondy: It says what it says. If the agreement is there and the Government have signed up to it, the issue will be interpretation, so what this actually means, what this actually implies. From there, I would think one would go to the dispute resolution mechanisms. In the period of the withdrawal agreement, during these negotiations, those constraints will not, in effect, be active, because the UK remains within the general EU legal framework. It is not as though one were separate here at this point, but it is the day after. On that point, just because it is a question of what the UK Government do after the withdrawal agreement period is closed, it is slightly different from the Irish Sea border, where one can measure progress about getting ready for it.

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