A short note on this paragraph in Liz Truss’s leaked letter.

First, it is important to note that under Article 5 of the Ireland/NI Protocol, the EU Customs Code (the UCC) applies to all GB to NI exports, and all third country to NI exports.

The only exception is that ordinary EU *tariffs* won’t be applied where the importer can *show* that the imported goods fall within certain categories agreed by the Joint Committee as posing no risk of onward export to the EU. (NB - no JC agreement, no such categories.)

Otherwise, the UCC regime (checks, trade remedy tariffs, import formalities) applies in full to all such imports into NI. And no tariffs are paid on EU exports to NI.

That that is the legal effect of Article 5 of the Protocol, despite its deliberately back-to-front drafting, designed to throw non-lawyers off the scent, is shown by this article by Professor Weatherill. http://eulawanalysis.blogspot.com/2020/03/the-protocol-on-ireland-northern.html?m=1

See also, by me https://www.dropbox.com/s/a1bavw4rdruk6cb/NIprotocol.pdf?dl=0

( @ShankerASingham and @CapacityNow claim to have reasons why they disagree with that analysis: but since they refuse to share those reasons, we can discount their claim for the moment.)

Truss’s concern that HMRC plan to apply EU tariffs as the default in NI after 1/1/21 is therefore no more than an observation that HMRC are planning to comply with the Protocol.

And NB that HMRC are required to comply, since the Protocol will post transition have direct effect in the UK: section 7A of the EU Withdrawal Act.

@michaelgove’s claim today that the UCC wouldn’t be applied as the default is very hard to square with the text of Article 5 (which is law in the UK - see previous tweet).

But there’s a further point. Truss points out that all this calls into question the current UK government’s claim that NI is part of the UK customs territory.

That concern is on the nail: as I point out in the paper linked to above. Given the terms of the Protocol, it’s hard to argue that NI is in the same customs territory.

But, you say, what about Article 4 of the Protocol?

Well, any English lawyer will know that the fact that parties to an agreement state that it has certain legal consequences does not mean that it has those consequences.

A lease is not a licence because the parties say it is. A contract of employment is not a contract for services just because the parties say it is. The legal nature and consequences of a contract are for courts to decide.

Whether - given the Protocol - NI is part of the same customs territory as the UK is ultimately for the WTO tribunals to decide, as it’s a question of WTO law. The views of the EU and UK are just views. Not binding.

My paper argues that NI will, under the Protocol, be part of the EU customs territory. (Which incidentally means that the WA overrode s55 of the Taxation (Cross-border Trade) Act 2018, an ERG amendment designed to prevent precisely that).

Truss is therefore right to be concerned by the effect of Article 5.