Tory Brexiteers: We rebut government claims that Irish Sea border is gone

The document is entitled ‘The European Research Group's Legal Advisory Committee Review and Assessment of the ‘The Windsor Framework’’. At the end of the report is the section below, in which claims by the government (most of them by the prime minister Rishi Sunak) are examined by the ERG lawyers Martin Howe KC and Barnabas Reynolds. Christopher Howarth, who works with the ERG, helped compile the document. The government claims are in italics, the ERG legal response is below each claim

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​Is this legally binding on both sides?

“It does what many said could not be done.., legally binding changes to the protocol treaty itself.” The Northern Ireland Protocol remains intact, supplemented by some additional easings. The UK cannot hold the EU to its commitments which will ultimately be governed by the ECJ.

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Has it removed EU laws?

“over 1,700 pages of EU law – with accompanying European Court of Justice (ECJ) jurisdiction – are disapplied,” (CP 806) There is no evidence that 1,700 pages of EU law has been disapplied. Not a single EU single market law has been removed from Northern Ireland. At most there has been ‘keyhole’ surgery within the scope of these laws.

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The Stormont Brake:

“It gives us control over dynamic alignment, through the Stormont brake, beyond what the [Northern Ireland Protocol] Bill promised.” … “these arrangements provide for the appropriate sovereignty in Northern Ireland for the Stormont Assembly to have that say. It is more than a say; it is an ability for the Assembly to block new EU goods laws as they come down the pipe if Assembly Members are not happy with them.” … “It is for us to make the determination whether the threshold has been met.”

The 'brake' is of very narrow application in theory and is likely to be useless in practice. It covers a limited range of EU laws applicable to Northern Ireland. It does not cover laws on EU trade defence measures, State Aid, VAT, Excise, most of the Customs Code, or the Electricity market. The UK cannot determine if the thresholds have been met. If the tests are not met then adjudicators could find against the UK and reapply the law.

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Medicines:

“it provides dual regulation for medicines. The UK’s regulator will approve all drugs for the whole UK market, including Northern Ireland, with no role for the European Medicines Agency. That fully protects the supply of medicines from Great Britain into Northern Ireland” The UK MHRA will remain subject to EU law when authorising new medicines in Northern Ireland which fall outside these special categories. The concession could be removed by EU legislation or withdrawn under the legislation if the UK is judged to have contravened its terms.

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UK alignment with EU rules?

“we have also committed to a range of other things to ensure that we protect against trade and regulatory divergence, including dialogue with businesses in Northern Ireland and also with the European Union.”

“there are opportunities to do things differently across the UK to drive growth and prosperity,”

What that refers to very specifically is the work of the Office for the Internal Market, which we have strengthened as a result of the agreement and provided some extra detail about what we do in the Command Paper. legislation to ensure there is no further hardening of the Irish Sea Border.

In practice, the Windsor deal will incentivise the UK and its future governments to copy future EU rules (and adjustments to existing rules) so as to avoid the imposition of new checks across the Irish Sea. The UK will have to engage in an on-running system of negotiations via the Joint Committee or see the Irish Sea border harden and fall foul of its own

Pets:

“A pet owner travelling from Great Britain to Northern Ireland just needs to make sure that their pet is microchipped and then they will simply need to tick a box when booking their travel.” The EU has allowed GB pets to travel to Northern Ireland if they are microchipped and have an accompanying travel document and declaration stating the pet will not go to the Republic of Ireland.

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Green Lane:

“Within the green lane, burdensome customs bureaucracy will be scrapped and replaced with data sharing of ordinary, existing commercial information. Routine checks and tests will also be scrapped. The only checks will be those required to stop smugglers and criminals. Our new green lane will be open to a broad, comprehensive range of businesses across the UK.” Full customs formalities will remain for many businesses importing goods from Great Britain and complex Tariff Rate Quotas and Rules of Origin will complicate Northern Ireland Firms’ supply chains. The ‘green lane’ is only available for a limited range of goods considered not ‘at risk’ and involves burdensome pre-registration and administration.

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Northern Ireland’s place in the UK:

“I can say with conviction that it does address the issues that were raised, and that it does secure Northern Ireland’s place in the Union and safeguard sovereignty.” The Articles of of Union of 1800 have not been restored. There are serious questions regarding UK sovereignty in Northern Ireland and Great Britain.

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Is the Protocol Permanent?

“it is a significant development that the Vienna convention on the law of treaties is in the political declaration” The NI Protocol contains no viable exit or review clause. The “democratic consent” mechanism is not cross-community as it should be under the Belfast (Good Friday) Agreement. Even if invoked, the NI Protocol remains in place and governs any replacement arrangement.

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Plants:

“That is why today’s agreement will lift the ban on shrubs, plants and trees going to Northern Ireland” The agreement only applies only to “professional operators”, is subject to “the rules for their entry into the Union laid down in Regulations (EU) 2016/2031 and (EU) 2017/625", and only applies to a handful of trees and shrub species that need to be accompanied by plant health certificates