The Government may argue that it is only ‘flexing’ its rights of Supervision under Article 12, but there is no doubt in my mind that they will face a legal challenge.
However, in the event of a ‘no deal exit’ the pressure on the EU to also secure its boundary will also be as equally as high as it is upon the UK – perhaps higher. So, it will be interesting to see the EU’s commitment to the Belfast (Good Friday) agreement given these potential new circumstances.
As reports emerge of the UK’s negotiators considering a revision to the Northern Ireland Withdrawal Protocol, this could be the next natural stage in the negotiation heading towards a full no deal exit of the UK from the EU.
The UK formed a Joint Committee as part of the protocol to discuss how the cross-border trade between the Republic of Ireland – Northern Ireland – Great Britain would work in practice and to identify certain ‘at risk’ goods in danger of leaking into the EU and vice versa.
It would also consider where and how to place tariff and checks upon this trade – checks that would have to exist in some shape and form regardless.
This was an inalienable certainty given the island of Ireland’s role as a single epidemiological area and the UK’s only land boundary with the EU.
It seems only natural that during the consideration of the implementation of these controls that the Government would consider the impact of full customs controls if implemented and in accordance with the provisions of Article 12 of the withdrawal protocol.
We should not forget that is highly likely that trade talks will continue beyond the transition deadlines and into 2021 and 2022 and neither side may want a lasting relationship damaged.