Why Boris Johnson is really backtracking on his Brexit deal

The UK is arguing that it should be let off a key commitment over Northern Ireland, Jon Stone writes

(EPA)

The Brexit withdrawal agreement was signed in January, yet is still being implemented by both sides. But there’s a problem: the UK and EU don’t agree about what it means.

The main dispute comes down to the question of Northern Ireland and its relationship with the rest of the UK. You may recall that this was a big deal in talks last year.

The EU says the UK has signed up to impose a type of customs control on goods moving between Northern Ireland and Great Britain called an “exit summary declaration”.

Britain, on the other hand, says its interpretation of the deal means it isn’t doing that. It published a “command paper” explaining what it would do, and this was not included.

Under these controls, producers in Northern Ireland would have to fill in extra bureaucracy if they want to move goods to the British mainland.

The question is key because Boris Johnson insisted during the election campaign that nothing would change in this regard.

Michael Gove, who is in charge of implementing the withdrawal agreement on the UK side, told a committee of MPs last week that there were political reasons for interpreting the agreement this way.

“The argument we’re making to the EU as well is if you insist on significant new infrastructure and a significant new presence what you will do is actually make the protocol less acceptable to the majority community in Northern Ireland and therefore you run the risk of the protocol being voted down in a future election,” the Cabinet office minister told the Commons Northern Ireland affairs committee.

“If you want to genuinely, as you say, help people in Northern Ireland, then you’ll go with the approach in our command paper.”

But the EU says this simply isn’t what the withdrawal agreement negotiated by both sides says.

“Some of the objectives set out in this command paper – such as avoiding exit declarations on goods moving from NI to GB – are incompatible with the legal commitments accepted by the UK in the protocol,” Michel Barnier told journalists after the fourth round of negotiations.

Who is right? Let’s look at the agreement and find out.

The crucial section of the Northern Ireland protocol is Article 5.4. It reads: “The provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland.”

This is essentially a commitment by the UK to implement the EU customs code in Northern Ireland. So-called “Annex 2” is a long list of EU laws that covers the relevant parts of the Union’s customs code. This was an essential piece of how last year’s deadlock was broken to get a deal and nobody disputes that it is the case.

Why is this relevant? Because the EU’s customs code requires exit summary declarations for goods on their way out of the single market.

The EU says it can’t have goods leaving the single market without the declarations because it needs accurate statistics – one hole could undermine the whole thing. But why they want exit summary declarations isn’t really relevant: the UK in black and white agreed to sign up to the EU customs code, and this provision is included.

So there is no legal basis for the UK not introducing these checks. Which is why Michael Gove’s argument is political: unionists might not like this deal if it is enforced. The obvious riposte to that is: well you shouldn’t have signed up to it, should you?

But whether or not you agree with Michael Gove’s argument, it is very much a request backslide on what was agreed by both sides in black and white.

This is crucial for the other set of talks going on now about trade. If the withdrawal agreement isn’t implemented properly, the EU could withhold a trade deal from the UK.