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North-South Cooperation and the Protocol on Ireland/Northern Ireland

Lisa Claire Whitten

January 2022

Download a copy of this Explainer here.  

Introduction

The Protocol on Ireland/Northern Ireland is part of the Withdrawal Agreement governing the departure of the United Kingdom (UK) from the European Union (EU). The overall purpose of the Protocol is to set out ‘arrangements necessary to address the unique circumstances on the island of Ireland’ and more specifically:

‘to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border, and to protect the 1998 [Belfast/Good Friday] Agreement in all its dimensions’ (Article 1(3) Protocol).

The objectives are interconnected and the Protocol’s arrangements concerning the border and the 1998 Agreement have been the focus of much academic, media, and political commentary.

Attracting comparatively less attention has been the role that the Protocol plays in maintaining the necessary conditions for North-South cooperation.

This is despite the important role that concerns about the potential impact of Brexit on North-South cooperation played in the development of the Protocol and the prominence given to North-South cooperation in the preamble and in the substance and the text of the Protocol. Many of the Protocol’s provisions serve the purpose of sustaining existing cooperation, e.g. through the continued free movement of goods (Article 5) and maintaining the single electricity market (Article 9) on the island of Ireland.

There is then Article 11 on ‘Other areas of North-South cooperation’. It states:

1. Consistent with the arrangements set out in Article 5 to 10 [regarding cross-border trade in goods] and in full respect of Union law, this Protocol shall be implemented and applied so as to maintain the necessary conditions for continued North-South cooperation, including in the areas of environment, health, agriculture, transport, education, and tourism, as well as in the areas of energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education, and sport.

In full respect of Union law, the United Kingdom and Ireland may continue to make arrangements that build on the provisions of the 1998 Agreement in other areas of North-South cooperation on the island of Ireland.

2. The Joint Committee shall keep under constant review the extent to which the implementation and application of this Protocol maintains the necessary conditions for North‐South cooperation. The Joint Committee may make appropriate recommendations to the Union and the United Kingdom in this respect, including on a recommendation from the Specialised Committee.

The wording of the first paragraph is important. Article 11(1) provides only that the Protocol be ‘implemented and applied so as to maintain the necessary conditions for continued North-South cooperation’ (emphasis added). It then simply lists areas for cooperation without specifying how the ‘necessary conditions’ are to be maintained. This begs the question of how far implementation and application of the Protocol will allow for continued North-South cooperation on the island of Ireland.

The purpose of this explainer is to provide an analysis of the Protocol and its engagement with the issue of continued North-South cooperation in the light of the UK’s withdrawal from the EU. A first section considers the origins of the Protocol’s provisions on North-South cooperation. The second section assesses the extent to which the Protocol’s provisions maintain the same conditions for cooperation that existed when Ireland and the UK were both in the EU. A final section explores three cases that raise questions as to whether and how the necessary conditions for North-South cooperation are being maintained: the mutual recognition of professional qualifications; family law and child protection; and water quality and water resources.

1. Origin: Strand Two and North-South Mapping

North-South cooperation on the island of Ireland is the focus of Strand Two of the 1998 Agreement. Under Strand Two, provision exists for the establishment of a North South Ministerial Council (NSMC) bringing together those with executive responsibilities in Northern Ireland and Ireland. The aim is to develop ‘consultation, co-operation and action within the island of Ireland – including through implementation on an all-island and cross-border basis – on matters of mutual interest within the competence of the Administrations, North and South’. Alongside this, there is also provision for the establishment of ‘Implementation Bodies’ to help facilitate North-South cooperation in specific policy areas. The 1998 Agreement specified 12 areas for potential cooperation: [ADD 12]. It also allowed for others to be considered and agreed in future via the NSMC.

This history is important because, during the UK’s EU withdrawal negotiations in 2017, the UK and EU jointly carried out a ‘Mapping Exercise’ to determine: (1) how North-South cooperation had developed since 1998, and (2) the extent to which existing cooperation relied on EU laws and legal frameworks (then) shared between the UK and Ireland.

Three documents were released that set out the findings of the joint 2017 Mapping Exercise:

  1. a UK government ‘Technical Explanatory Note’ published in 2018
  2. a European Commission ‘Report on Negotiations on Ireland/Northern Ireland and Mapping of North-South Cooperation’ published in 2019, and
  3. a more detailed UK government ‘Scoping Document’, also published in 2019.

There is broad agreement between the content in the UK Technical Explanatory Note and in the European Commission Report. Both include a brief explanation of relevant provisions of the 1998 Agreement, a description of the joint mapping exercise undertaken, an account of the language used in what became Article 11 of the Protocol,[1] and an annexed, high-level list of areas of cooperation identified.

There are some slight differences between the two documents. The European Commission’s Report, for example, contains short summaries of UK-EU discussions on the areas of cooperation identified; the UK document does not. The role of the Joint Committee and Specialised Committee in respect to monitoring the impact of implementation of the Protocol on conditions for North-South cooperation is also articulated differently with the UK Technical Explanatory Note describing these roles as more limited than the European Commission Report. Notwithstanding such differences, both the UK Technical Note and the European Commission Report contain exactly the same high-level list of areas of North-South cooperation identified.

The UK government’s Scoping Document meanwhile contains no commentary on any challenges UK withdrawal from the EU poses for North-South cooperation; nor does it reference any possible solutions. However, it does include more information about the types of cooperation identified by the UK and EU, and their relationship to EU laws. The content presented below therefore draws primarily on the information provided in the Scoping Document.

In total, the Scoping Document identified 142 areas of existing North-South cooperation. Of those 142 areas, 54 were found to be ‘directly underpinned by or linked to’ EU legal or policy frameworks. A further 42 were identified as being ‘partially underpinned by or linked to’ EU legal or policy frameworks and 46 as ‘not underpinned or linked’. These findings indicated, first, that North-South cooperation had expanded significantly since 1998 and, second, that, in many cases, this expansion had been facilitated by or relied on, EU frameworks.

This much is reflected in the Preamble to the Protocol:

‘RECALLING that the Union and the United Kingdom have carried out a mapping exercise which shows that North-South cooperation relies to a significant extent on a common Union legal and policy framework.

NOTING that therefore the United Kingdom’s withdrawal from the Union gives rise to substantial challenges to the maintenance and development of North-South cooperation.’

This language underlines the important role the 2017 Mapping Exercise played in the formation of those elements of the Protocol related to North-South cooperation. Following this, the findings of the Mapping Exercise provide a useful starting point for assessing the extent to which the Protocol can achieve its objective regarding the ‘maintenance of necessary conditions’ for continued North-South cooperation.

2. Mapping Exercise vs Protocol on Ireland/Northern Ireland

Comparison of the Protocol’s provisions regarding continued regulatory alignment with EU law and the findings of the 2017 Mapping Exercise allows for an initial assessment of whether the Protocol can deliver on its stated objective regarding North-South cooperation. The Scoping Document is important here since it listed those EU legal acts that either facilitated or underpinned cooperation.

The detailed results of the comparison are contained in three appendices to this explainer. Appendix 1 details those areas of North-South Cooperation identified in the Mapping Exercise that are fully covered by the Protocol. Appendix 2 details those that are partially covered; and Appendix 3 details those that are not covered.

Those areas that are fully covered by the Protocol include, for example, North-South cooperation in respect to: customs; market surveillance of goods; regulation of animal health and welfare; the cross-border movement of medicines, medical devices, and organs for transplant. In these areas, the Protocol provides for the continued application in the UK in respect of Northern Ireland of all the EU legal acts cited in the Mapping Exercise as facilitating cooperation, either directly or indirectly.

Those areas partially covered, where the Protocol includes only some of the EU legal acts cited as directly or indirectly facilitating cooperation includes, for example: the operation of cross-border taxis and rail services; cross-border cooperation in education; and the work of three Implementation bodies – Waterways Ireland, the Loughs Agency and the SEUPB.

Those areas not covered by the Protocol and for which none of the EU legal acts cited as facilitating cooperation in the Mapping Exercise include, for example: driver and vehicle licensing; international authorisations for bus and coach services; the mutual recognition of professional qualifications; and the management and regulation of water resources.

Figure 1 summarises the findings of the analyses contained in the three appendices.

Overall, comparison of the Scoping Document and the Protocol shows that, notwithstanding its objective, the Protocol as it currently stands maintains only some of the ’necessary conditions for continued North-South cooperation’, not all.

The gaps may be addressed, following Article 11(2), by how the Protocol is implemented and applied. Moreover, the Joint Committee, as part of its ‘constant review’ of the extent to which implementation and application of the Protocol does maintain the conditions necessary for North-South cooperation, may make ‘appropriate recommendations’ to the UK and the EU that lead to changes to the Protocol. The role of the Specialised Committee, established under Article 14 Protocol, is also important here. One of its tasks is to ‘examine proposals concerning the implementation and application’ of the Protocol from the NSMC and North-South Implementation bodies (Article 14(b)). The Specialised Committee can also make recommendations to the Joint Committee (Article 14(e)). Taken together these provisions create an avenue – from Strand Two institutions to the Specialised Committee to the Joint Committee and then to the UK and the EU – for potential developments regarding the extent to which implementation and application of the Protocol maintains the necessary conditions for North-South cooperation. For the moment, however, the conclusion of the analysis here is that, on maintaining the conditions for North-South cooperation, the Protocol on its own is not currently up to the task.

It is important to note, however, that the Protocol is not the only means by which the conditions for North-South cooperation on the island of Ireland can be maintained post-Brexit. Indeed, following the second subparagraph of Article 11(1), the UK and Ireland ‘may continue to make arrangements that build on the provisions of the 1998 Agreement in other areas of North-South cooperation’ provided these respect EU law obligations. In addition, as the examples below demonstrate, North-South cooperation can, and is, being facilitated by actions taken across a range of areas of legislative and policy activity, including, within the UK, between Northern Ireland and Ireland, between the UK and Ireland, in UK-EU relations, and through international legal commitments and obligations.

3. Case Studies

To get a sense of the potential ‘on the ground’ implications of the limited scope of the Protocol in relation to the continuation of North-South cooperation, it is helpful to look at some case studies. By exploring, post-Brexit, the situation in areas of policy that were identified, pre-Brexit, as areas of North-South cooperation, but which are not covered in the Protocol we can begin to see how ‘gaps’ in the maintenance of conditions for North-South cooperation are – or are not – being filled.

The examples used – mutual recognition of professional qualifications; family law and child protection; water quality and water resources – have been selected because the absence of common regulation and the potential for regulatory divergence (actual or potential) in these areas following Brexit have recently come to the fore in public discussion in and across the two jurisdictions.

As the three cases below make clear, the legislative environment in post-Brexit Northern Ireland is complex and dynamic. To get a full picture of what is happening in relation to a specific policy area it is necessary to look at developments: in international law (if applicable); in the UK-EU relationship (under Withdrawal Agreement and Trade and Cooperation Agreement (TCA)); between the UK and Ireland (through east-west 1998 Agreement institutions and/or the Common Travel Area); between Northern Ireland and Ireland (through north-south 1998 Agreement institutions); and domestically within the UK both at a national and devolved level. Each of these different areas of legislative and policy activity is considered, as appropriate, in the case studies.

Given the complexity and dynamism of the situation, while every effort has been made to ensure the examples cited are accurate, it is also possible that the situation has already changed. These cases studies ought to therefore be taken as indicative, not conclusive.

The complex nature of the legislative and policy landscape also makes simple classification difficult. There are instances, for example, where provision for cooperation exists in principle but not in substance, and/or where partial provisions exist but gaps remain for certain aspects or in particular sectors. These nuances can be captured – as below – by distinguishing between: provision, provision in principle, provision in part, and no provision.

Case Study A: Mutual Recognition of Professional Qualifications (MRPQ)

Pre-Brexit

Prior to Brexit, the cross-jurisdictional recognition of professional qualifications for the whole of the EU was provided for by EU Directive 2005/36/EC. The 2017 Mapping Exercise cited the Directive as part of the legal basis for cross-border cooperation in (specifically) healthcare and in education on the island of Ireland, although it should be noted that it provided for mutual recognition across professions.

Post-Brexit Provision for MRPQ

Withdrawal Agreement/Protocol

Provision in Principle.

  • Article 11 references sectors (‘health, education, transport, justice and security’) in which MRPQ has facilitated North-South cooperation; but the relevant EU Directive 2005/36/EC is neither included in the Protocol text nor listed in its Annexes.
  • Article 3 provides that the UK and Ireland ‘may continue to make arrangements between themselves relating to the movement of persons between their territories’ while respecting EU law. This provides for continuation of the CTA; on a broad reading, free movement includes MRPQ, but again the relevant EU legal instrument is neither included in the Protocol nor listed in its Annexes.

1998 Agreement

Provision in Principle.

  • Recent meetings of the British-Irish Intergovernmental Conference (BIIGC) have not specifically mentioned MRPQ but have emphasised mutual commitment to upholding and strengthening the rights and privileges enjoyed under the CTA by Irish and British citizens. This includes MRPQs (see 2019 Memorandum of Understanding 8).
  • Since the UK left the EU, action has been taken on a North-South and East-West level on a sector-by-sector basis to allow for MRPQs. According to evidence given in the Oireachtas, 14 profession-to-profession agreements (including for construction industry, medical councils, teaching councils and train and railway operators) had been agreed by April 2021 with support of UK and Ireland governments.

Trade and Cooperation Agreement

Provision in Part (on sector-by-sector and bilateral basis).

  • Article 158 and Annex 24 set out procedures and guidelines within which the UK and EU can agree conditions for the recognition of professional qualifications at the TCA Partnership Council. The TCA Trade Specialised Committee on Services, Investment and Digital Trade (SIDT) is responsible for this issue – it was discussed at the SIDT Specialised Committee’s first meeting in Nov 2021.
  • The TCA provisions allow for sector-by-sector agreements on MRPQs via ‘Mutual Recognition Agreements’ (MRAs)to be agreed under TCA between the UK and EU States; UK government guidance gives advice to regulators about the processes involved in establishing MRAs through the TCA.

UK Law

Provision in Principle (pending).

  • The Professional Qualifications Bill is currently going through the UK Parliament; its purpose is to make provision for MRPQs for non-UK citizens and replaced an ‘interim’ system deriving from EU membership. The Explanatory Memorandum for the Bill notes the relevance of the CTA and indicates the provisions of the Bill, if adopted, will be without prejudice to arrangements made for MRPQ under the CTA.

Summary

No comprehensive framework for the post-Brexit mutual recognition of professional qualifications on the island of Ireland; however, arrangements exist for MRPQ in some professions; additional provisions exist for Irish and British citizens under the CTA.

Case Study B: Family Law and Child Protection

Pre-Brexit

Prior to Brexit, the cross-jurisdictional recognition and enforcement of matters in family law between Ireland and Northern Ireland was underpinned by EU law: Council Regulation EC 2201/2003, known as ‘Brussels IIa’. The act was identified in the 2017 Mapping Exercise as the legal basis for North-South cooperation on child protection matters. The Brussels IIa Regulation is not included in the Protocol.

Post-Brexit Provision for Family Law and Child Protection

Withdrawal Agreement/Protocol

Provision in Principle.

  • Article 11 references cooperation in ‘justice and security’ matters but the relevant Brussels IIa Regulation is neither included in the Protocol nor listed in its Annexes.

1998 Agreement

Provision

  • In 2011 Northern Ireland and Ireland agreed a Protocol for the Handling of Inter-Jurisdictional Child Protection Cases (the ‘Child Protection Protocol’), a new version of which was published in August 2021. It reflects changes to domestic and international legislation, policies, procedures, and guidance, including those arising from the UK’s withdrawal from the EU.
  • The Child Protection Protocol notes that, following the end of the Transition Period, the Brussels IIa Regulation ((EC) No. 2201/2003) no longer applies in Northern Ireland and therefore cannot be used as a basis for progressing any new cross-border child protection cases. Instead, international law provisions under the1980 or 1996 Hague Conventions (see below) are to be used.

Trade and Cooperation Agreement

No provision.

  • The TCA provisions for EU-UK cooperation in legal matters only cover criminal law, not civil law (which includes family law and child protection).
  • The UK applied to join the Lugano Convention on 8 April 2020, this would have allowed for cross-border judicial cooperation in civil law matters between the UK, EU Member States, Denmark and three EFTA States (Switzerland, Norway, and Iceland). In a European Commission Communication on 4 May 2021 the EU refused consent to the UK’s accession to the Lugano Convention as it judged this to be ‘a flanking measure of the internal market [which] related to the EU-EFTA/EEA context’.
  • For the purpose of North-South cooperation on child protection matters, the EU’s data adequacy decision in relation to the UK General Data Protection Regulation (GDPR) is an important facilitator of continued cooperation. The updated Child Protection Protocol notes that although the EU GDPR no longer applies in the UK, the domestic equivalent is now the basis for North-South data sharing on child protection cases; UK and EU data adequacy decisions make this possible.

UK Law

Provision

  • The Private International Law (Implementation of Agreements) (PIL) Act 2020 provided for the implementation in domestic law of international agreements on private international law which includes family law.
    • Section 1 of the PIL Act 2020 incorporated three Hague Conventions which previously applied in the UK by virtue of its EU membership: the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children; the 2005 Hague Convention on Choice of Court Agreements; and the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance.
    • Section 2 of the PIL Act 2020 introduced delegated powers to allow the UK government (in respect of England and Wales) or devolved administrations (in respect of Scotland and Northern Ireland) to implement international agreements on public international law in domestic law in future via secondary legislation – these s2 powers expire after five years but could be renewed via secondary legislation (see Explanatory Memorandum) – part of the reasoning for these s2 powers was, presumably, to enable domestic implementation of Lugano Convention in UK jurisdictions if successful application was made.

Summary

North-South cooperation on family law and child protection matters post-Brexit is underpinned by international legal frameworks. Collectively these are less comprehensive than the previous EU framework. Due to the need for cross-border data-sharing on child protection and family law matters, the EU-UK data adequacy decision is an important facilitator of continued cooperation in this area; the EU decision not to grant the UK’s request for accession to the Lugano Convention makes the legal basis for cooperation on family law and child protection matters more complex.

Case Study C: Water Quality and Water Resources

Pre-Brexit

Prior to Brexit, cross-border cooperation relating to the management of water pollution, catchment, quality, regulation and river basin management, as well as cooperation on flood risk management, was underpinned by a series of EU laws: Directive 2000/06/EC known as the ‘Water Framework Directive’; Directive 2007/60/EC known as the ‘Floods Directive’; Directive 2011/92 known as the ‘Environmental Impact Assessment Directive’; and Directive 98/83/EC, known as the ‘Drinking Water Directive’. All but the latter were identified in the 2017 Mapping Exercise as the legal basis for North-South cooperation on the regulation of water quality and resources, but none are included in the Protocol.

Post-Brexit Provision for Family Law and Child Protection

Withdrawal Agreement/Protocol

Provision in Principle.

  • Article 11 references cooperation in the area of the ‘environment’ but the relevant EU Directives are neither included in the Protocol nor listed in its Annexes.

1998 Agreement

Provision

  • The work of two North-South Implementation Bodies – Waterways Ireland and Loughs Agency– relates to cooperation in the field of water management. These bodies continue to operate notwithstanding the changed legal and policy context in respect of water regulation following UK withdrawal from the EU. Recent communiqués have ‘noted the impact’ (see Waterways Ireland, May 2021; Loughs Agency, October 2020) of UK withdrawal on the operation of both bodies.
  • The extent of Ireland’s compliance with EU laws on water quality and resource is also relevant here as it has implications for any coordination of environmental governance across the island of Ireland. In this regard it is worth noting that Ireland has been referred (in November 2021) to the Court of Justice of the European Union by the European Commission for failure to comply with the Drinking Water Directive (Directive 98/83/EC), in particular with failure to ensure levels of trihalomethanes (THMs) in drinking water do not exceed (safe) parametric values laid down in the Directive.

Trade and Cooperation Agreement

No provision.

  • The TCA does not include provisions relating to water quality or regulation of water resource nor is there any other specific EU-UK agreement or arrangement in this area.

UK Law

Provision

  • Changes have been made to the UK retained law versions of the relevant EU Directives; these changes have been minor
  • Technical amendments were made to retained EU law in the field of water quality and resource management by The Floods and Water (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/558) – these provisions did not change the substance or effect of the retained EU originating legislation but rather fixed deficiencies and inaccuracies in the existing legislation that arose from UK exit (see SI 2019/558 Explanatory Memorandum). Further, similar, technical amendments were made to retained EU law in the field of water quality and resource management by The Water and Floods (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 (SI 2019/32) and The Water (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 (SI 2019/112) – these provisions did not change the substance or effect of the retained EU originating legislation but rather fixed deficiencies and inaccuracies in the existing legislation that arose from UK exit (see SI 2019/32 Explanatory Memorandum and SI 2019/112 Explanatory Memorandum); the latter regulation, SI 2019/32, was passed during the hiatus in the functioning of the Northern Ireland Executive and the Northern Ireland Assembly so necessary changes were taken forward at Westminster in consultation with Northern Ireland officials notwithstanding that this policy area is ‘transferred’ under the 1998 Northern Ireland Act.

Summary

North-South cooperation in matters relating to water quality and management of resources post-Brexit relies on the continued application of EU-derived laws (retained EU law) in respect of Northern Ireland and the continued application of EU law in respect of Ireland.

4. Conclusion

So, does the Protocol fulfil its aspiration to maintain the necessary conditions for continued North-South cooperation? The answer: not fully. It provides the necessary conditions for some North-South cooperation to continue – in respect to individual rights (Article 2), cross-border trade in goods (Article 5 and 7-10) and in energy markets and electricity supplies (Article 9) – but the coverage is not comprehensive. Comparison between areas of North-South cooperation identified in the 2017 Mapping Exercise carried out by the UK and EU during withdrawal negotiations and the Protocol reveals post-Brexit ‘gaps’ in the legal and policy frameworks that, pre-Brexit, relied on EU laws deriving from share UK and Irish membership of the EU.

As the case studies here demonstrate, North-South cooperation in areas not covered by the Protocol is ongoing. Post-Brexit, the legal and policy frameworks supporting these areas of cooperation tend to be complex with provisions existing across a range of different policy areas and at different levels of legislative development. What this means is that the ‘necessary conditions’ for continued North-South cooperation in areas not covered by the Protocol are now contingent on the degree of complementarity of legal and policy developments across a range of different jurisdictions and in different contexts. These include: in the UK (as a whole); in Northern Ireland (as a devolved region); between Ireland and Northern Ireland; between the UK and Ireland; between the UK and the EU; within the EU; and within Ireland (as an EU Member State).

Overall, then, the post-Brexit environment for North-South cooperation is inherently complex, contingent and, therefore, those ‘necessary conditions’ for its continuation are much less certain.

[1] Both documents refer to ‘Article 13’. This is the provision contained in the ‘backstop’ Protocol annexed to the 2018 Withdrawal Agreement that became Article 11 of the revised Protocol annexed to the 2019 Withdrawal Agreement that was approved by the UK Parliament and entered into force on 31 January. No changes were made to the wording as part of the revision process.

January 2022

Dr. Lisa Claire Whitten is Research Fellow on the Governance for ‘a place between’: the multilevel dynamics of implementing the Protocol on Ireland/Northern Ireland at Queen's University Belfast. She can be contacted via: l.whitten@qub.ac.uk.

Download a copy of this Explainer here

Appendix 1: Areas of North-South Cooperation identified in the North-South Cooperation Mapping Exercise and fully covered by the Protocol on Ireland/Northern Ireland 

Note: The terminology used here to cite EU law instruments reflects the language used in the Scoping Document; it does not always reflect citation conventions.

Area of Cooperation

Coverage in Protocol

Food Safety Promotion Board

The work of FSPB is underpinned by EU Regulation 178/2002 on General Food Law which is listed in Article 5 and Annex 2 of the Protocol

Cooperation and Working Together (CAWT)

EU INTERREG funding and the Common Travel Area Cabotage (CTA) are identified in the Scoping Document as the EU policy basis underpinning the work of CAWT – the continuation of INTERREG funding is provided for in the Preamble and Article 3 of the Protocol respectively.

Single Electricity Market

Continuation of the Single Electricity Market is provided for in Article 9 and Annex 4 of the Protocol. Relevant EU instruments listed in the North-South Scoping Document are included in the Protocol, Annex 4; these are: the Electricity Directive (2009/72/EC) the Electricity Regulation (EC) No 714/2009, the Agency Regulation (EC) No 713/2009.

Cultural Goods

North-South cooperation related to movement of cultural goods – including trafficking and tax enforcement – is underpinned by the Union Customs Code (Regulation (EU) 952/2013) (which applies under Article 5 and Article 13 of the Protocol) and by Regulation (EU) 2019/880 which applies under Article 5 and Annex 2 of the Protocol.

National Museums North-South Cooperation

Ongoing collaboration between National Museums of Northern Ireland and Ireland on exhibitions and programming is partially underpinned by Council Regulation 116/2009 which is included under Article 5 and Annex 2 of the Protocol.

North-South Diary International Trade Working Group

The work of the North South Diary International Trade working group is underpinned by Regulations 852/2004, 853/2004 and 854/2004 which apply under Article 5 and Annex 2 of the Protocol.

Waste Management [i]

North-South commitment to joint Roadmap Agreement (2009) to cooperate for the purpose of managing cross-border movement of waste, including hazardous materials, is underpinned by Regulation (EC) 1013/2006 which applies under Article 5 and Annex 2 of the Protocol.

North South Working Group on veterinary medicines | North-South Working Group on Tuberculosis (TB) and Brucellosis (BR) | North South Diary International Trade Working Group

The work of the North-South Working Groups on veterinary medicines, on diary international trade and on TB and BR was identified as being underpinned by EU instruments that are included in Article 5 and Annex 2 of the Protocol; the included instruments are: Regulation (EC) 882/2004; Council Directives 64/432/EEC, 77/391/EEC and 78/52/EEC and Council Regulations (EC) No. 1/2005, No. 853/2004 and 854/2004; and Regulation 852/2004.

Convention on International Trade in Endangered Species | Management of eel stocks on the Erne

Council Regulation (EC) 338/97 on the protection of species of wild fauna and flora is identified in North-South Scoping Document as the legal basis for ensuring endangered species – eels in particular – are not illegally traded across the land border; EU Eel Regulations No 1100/2007 is also identified as necessary to manage eel stocks on the Erne – both Regulations apply under Article 5 and Annex 2 of the Protocol.

Fish health and aquaculture

North-South cooperation on matters relating fish health, fish movements and fish disease contingency plans is identified in the Scoping Document as being underpinned by Directive 2006/88/EC which is included in Article 5 and Annex 2 of the Protocol.

Chemicals Regulation

EU instruments cited in the North-South Scoping Document as the legal basis for cooperation related to chemicals are included in the Protocol; included instruments are EU Regulation 649/2012 (on priori informed consent) and the REACH Regulation (EC) No 1907/2006.

Invasive Alien Species

EU Regulation 1143/2014 on invasive alien species is cited as the legal basis for North-South cooperation related to invasive species and included in Article 5 and Annex 2 of the Protocol.

Common Chapters agreed for the control of Epizootic diseases

North-South coordination related to the control of Epizootic diseases is underpinned by various EU instruments which are included under Article 5 and Annex 2 of the Protocol; included instruments are: Council Directive 2003/85/EC on control of foot- and-mouth disease; Council Directive 2005/94/EC on control of avian influenza; Council Directive 2001/89/EC on control of classical swine fever; Council Directive 92/35/EEC on measures to combat African horse sickness and Council Directive 2002/60/EC laying down specific provisions for the control of African swine fever.

DAERA/DAFM Equine Liaison Group and cross-border horse movements | Equine Industry Strategy

North-South cooperation relating to the movement of equine animals and policy strategy in the area of horse sport and breeding is underpinned by a Tripartite Agreement, the legal basis of which is provided for in Article 6 of Council Directive 2009/156/EC (covering the UK, Ireland, and France) which is included in Article 5 and Annex 2 of the Protocol.

Veterinary public health and trade meetings

Biannual DAERA/DAFM meetings on veterinary public health and trade are partially underpinned by Regulation EC 882/2004 which is included in Article 5 and Annex 2 of the Protocol.

Regulation and enforcement of animal health and welfare, and public health legislation

Regulation multi agency North-South meetings to discuss criminal activity related to animal health and welfare and public health legislation is partially underpinned by EU Regulation 1/2005 which is included under Article 5 and Annex 2 of the Protocol.

Firearms and Offensive Weapons

Legitimate cross-border movement of licenced firearms is underpinned by EU Firearms Directive 91/477/EC which is included in Article 5 and Annex 2 of the Protocol.

Checks on Civil Explosives

North-South security provisions related to controls on civil explosives is underpinned by the Civil Explosives Directive 2014/28/EU which is included in Article 5 and Annex 2 of the Protocol.

Import Licensing Controls

Article 215 of the TFEU is cited as the legal basis for North-South cooperation in respect of enforcement of EU trade defence measures and is included under Article 5 and Annex 2 of the Protocol.

Organs and Tissues

North-South cooperation relating to organ and tissue transplants is underpinned by EU Directive 2010/45/EU which applies under Article 5 and Annex 2 of the Protocol.

Movement of medicines, medical devices, and healthcare goods

Northern Ireland and Ireland treated as single entity by pharma and medical device industry – related cross-border movement of goods is underpinned by Regulation (EU) 2017/745 and Regulation 2017/746 both of which apply under Article 5 and Annex 2 of the Protocol.

Fuel Fraud

North-South cooperation to combat fuel fraud is facilitated by EU databases including the Anti-Fraud Information System provided for in European Council Regulation (EC) No 515/97 which is included in the Protocol.

Non-Commercial Movement of Pets

Regulation (EU) No 576/2013 is cited as the legal basis for cross-border movement of pets and is included in the Protocol.

Customs

Union Customs Code (Regulation (EU) No 952/2013) facilitates free movement of goods North-South and applies under the Protocol.

Data Sharing and Operation Cooperation on Customs Matters

Council Regulation (EC) No 515/97 is cited as legal basis for North-South data sharing between customs authorities and is included in the Protocol.

Market Surveillance of Goods

EU instruments cited as the legal basis for North-South cooperation in respect to market surveillance are included in the Protocol: Regulation (EC) 765/2008 sets out the requirements for accreditation and market surveillance relating to the marketing of products. Decision 768/2008/EC on a common framework for the marketing of products contains provisions on market surveillance, obligations of businesses, traceability, and safeguard mechanisms. Directive 2001/95/EC (the General Product Safety Directive) contains additional market surveillance provisions, notably for non- harmonized consumer products.

Excise fraud

Council Regulation (EC) 389/2012 of 2 May 2012 on administrative cooperation in the field of excise duties are cited as legal basis for North-South exchange of information to combat excise fraud and are included in the Protocol.

Checks on Intellectual Property

EU Regulation 608/2013 (customs enforcement of IPRs) which sets out the conditions and procedures for action by customs authorities where goods suspected of infringing an IPR and facilitates North-South cooperation in this area is included in the Protocol.

Appendix 2: Areas of North-South Cooperation identified in the North-South Cooperation Mapping Exercise and partially covered by the Protocol on Ireland/Northern Ireland

Note: The terminology used here to cite EU law instruments reflects the language used in the Scoping Document; it does not always reflect citation conventions.

Area of North-South Cooperation

Listed in North-South Cooperation Mapping Exercise

Coverage in Protocol

Not Covered in Protocol

SEUPB | PEACE | INTERREG

The continuation of dedicated EU funding -PEACE and INTERREG – that SEUPB oversees is provided for in the Preamble of the Protocol

EU legal instruments cited in North-South Scoping Document as the legal basis for SEUPB work -Common Provisions Regulation 2013/1303 and European Territorial Cooperation Regulation (EU) 2013/1299 - are not included in the Protocol.

Loughs Agency | Waterways Ireland

North-South cooperation on environmental issues is provided for in Article 11 of the Protocol and Implementation Bodies are able to make proposals to the Specialised Committee under Article 14 of the Protocol.

The Water Framework Directive 2000/60/EC cited in North-South Scoping Document as the legal basis for cooperation on environmental issues relating to the work of the Loughs Agency and Waterways Ireland is not included in the Protocol.

North-West Cancer Centre | All Island Congenital Heart Disease Network | Major emergencies and A&E planning | Middletown Centre for Autism Ltd.

North-South cooperation on health is provided for in Article 11 of the Protocol. Maintenance of the CTA (which underpins work of NWCC and AICHDN, MCA and major emergency planning) is provided for in Article 3 of the Protocol.

EU Directive 2005/36/EC on the mutual recognition of professional qualifications (MRPQ) identified in the Scoping Document as legal basis for major emergency planning and the work of NWCC, AICHDN and MCA is not included in the Protocol.

Natural Gas

Most of those EU instrumented cited in the North-South Scoping Document as the legal basis for cooperation related to the use and supply of natural gas are not included in the Protocol. Only the Agency Regulation (EC) No 713/2009 is listed in Annex 4.

Instruments of EU Internal Energy Market gas legislation cited in the North-South Scoping Document and not listed in the Protocol: Gas Directive (2009/73/EC), the Gas Regulation (EC) No 715/2009, Gas Transmission Systems Regulation (EU) 2017/459) and Gas Security of Supply Regulation (EU) No 994/2010.

Teacher Qualifications and Professional Development

North-South cooperation in education is provided for in Article 11 of the Protocol. Maintenance of the CTA that underpins cooperation in education matters is provided for in Article 3 of the Protocol.

EU Directive 2005/36/EC on the mutual recognition of professional qualifications (MRPQ) identified in the Scoping Document as the legal basis for cooperation in education, particularly with respect to teacher exchange and professional development, is not included in the Protocol.

Enterprise Rail Service

Some of the EU instruments cited as the legal basis for North-South cooperation necessary to operate the cross-border Enterprise Rail Service are included in the Protocol. The included instruments are the Interoperability Directive 2016/797/EU and EU Regulation 1370/2007 on regarding state aid, franchising, and procurement.

Some of the EU instruments cited as the legal basis for North-South cooperation necessary to operate the cross-border Enterprise Rail Service are not included in the Protocol. The excluded instruments are the Safety Directive 2016/798/EU, Train driving licenses and certificates Directive 2007/58/EC, Market access Directive 2012/34/EU and Passenger rights EU Regulation 1371/2007.

Operation of cross-border taxis

Informal agreements between Northern Ireland’s Department of Infrastructure and Irish National Transport Authority regarding the operation of taxis cross-border is underpinned by CTA provided for in Article 3 of the Protocol.

Operation of cross-border taxis was also underpinned by EU instruments on driving licenses and road safety which are not included in the Protocol.

Waste Management [ii]

Work of the North South Market Development Steering Group – established to assist the move to an all-island resource efficient / low carbon economy – is underpinned by Packaging & Packing Waste Directive 1994/62/EC, Batteries & Accumulators Directive 2006/66/EC which apply under Article 5 and Annex 2 of the Protocol.

Work of the North South Market Development Steering Group is also underpinned by Waste Framework Directive 2008/98/EC and Waste & Electrical Equipment Directive 2012/19/EU which are not included in the Protocol.

Plant Health & Regulatory Checks for Quarantine Pests

The Plant Health Directive 2000/29 is cited as one of the EU instruments underpinning North-South cooperation in matters concerning plant health and pesticides and included in Article 5 and Annex 2 of the Protocol.

Directive 2004/103 regarding conditions for checks to be carried out at a place other than at point of entry and Directive 98/22/EC regarding minimum conditions for carrying out plant health checks were both cited as EU instruments that underpins North-South cooperation in matters concerning plant health and pesticides and are not included in the Protocol.

Cooperation on checks on third country products of animal origin

Regulation 882/2004/EC and Council Directive 97/78/EC underpin North-South cooperation on checks on third country products of animal origin and are included in Article 5 and Annex 2 of the Protocol.

Commission Decision 94/360/EC underpinned North-South cooperation on checks on third country products of animal origin and is not included in the Protocol.

Transmissible Spongiform Encephalopathies (TSE) & Animal By-products (ABP)

EU Regulation 2001/999 lays down rules for the prevention, control, and eradication of certain transmissible spongiform encephalopathies and

Commission Regulation 142/2011 that set down controls on the safe use and disposal of animal-by products was cited in Scoping Document as part of the legal basis for North-South cooperation relating to control of TSE and ABP but is not included in the Protocol.

Animal Health and Welfare working groups and steering group

EU Regulation 1069/2009 are cited as EU legal basis for North-South cooperation relating to the control of TSE and ABP.

Some EU instruments identified as part of the legal basis for North-South cooperation on policies relating to animal welfare, transport, identification, registration, and movement are not included in the Protocol; excluded instruments are: (EC) 494/98, (EC) 1082/2003, (EC) 911/2004, (EC) 1505/2006, (EU) 2017/949.

Export Licensing controls (dual use goods, military goods)

Most of the EU instruments identified as part of the legal basis for North-South cooperation on policies relating to animal welfare, transport, identification, registration, and movement are included in the scope of the Protocol; included instruments are: (EC) 1/2005, (EU) 2016/429, (EC) 1760/2000, (EC) 21/2004 and 2008/71/EC.

One of the instruments cited in the North-South Scoping Document as providing a legal basis for checks to enforce strategic export controls on military goods is not included in the Protocol; the excluded instrument is EU Council common position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment.

Checks on food not of animal origin

Three of the instruments cited in the North-South Scoping Document as providing a legal basis for checks to enforce strategic export controls on military goods are included in the Protocol; included instruments are Council Regulation (EU) 1236/2005, Directive 2009/43/EC and Council Regulation (EC) 428/2009.

Most of the EU instruments cited as the legal basis for North-South cooperation in respect to checks on food not of animal origin – thus avoiding need for a hard border – are included in the scope of the Protocol; included instruments are EU Regulation 669/2009 and several other EU regulations/decisions set out specific safeguard measure for high risk FNAO: Regulation 884/2014, Regulation 885/2014, Regulation 2016/166, Regulation 2015/175, Decision 2010/381/EU, and Decision 2013/287/EU; Commission Decision 2004/407/EC; and Council Regulations (EC) Nos 787/2004, 2073/2005 and 2075/2005.

Checks on products of animal origin for human consumption

Most of the EU instruments cited as the legal basis for North-South cooperation in respect to checks on food not of animal origin – thus avoiding need for a hard border – are included in the scope of the Protocol; included instruments are EU Regulation 882/2004 on official controls for feed and food law; Council Directives 88/407/EEC, 89/556/EEC, 90/429/EEC, 2009/158/EC, 92/65/EEC, 92/118/EEC, 97/78/EC, 2006/88/EC; and Council Regulations (EC) Nos 2406/96, 999/2001, 2065/2001, 1069/2009, 2160/2003, 852/2004, 853/2004, 854/2004, 882/2004.

Some of the EU instruments cited as the legal basis for North-South cooperation in respect to checks on products of animal origin for human consumption – avoiding need for a hard border – are not included in the scope of the Protocol; excluded instruments are Commission decision 94/360/EC, Commission Decision 2004/407/EC and Council Regulations 878/2004, 2073/2005 and 2075/2005.

Check on live animals

 

Some of the EU instruments cited as the legal basis for North-South cooperation in respect to checks on live animals – avoiding need for a hard border – are not included in the scope of the Protocol; excluded instruments are

 

Mutual Recognition of AEOs

 

Implementing ((EU) 2015/2447) and Delegated ((EU) 2015/2446) Regulations are cited as part of the legal basis for North-South cooperation in respect to mutual recognition of AEOs and do not apply under the Protocol.

 

 

Appendix 3: Areas of North-South Cooperation identified in the North-South Cooperation Mapping Exercise but not covered by the Protocol on Ireland/Northern Ireland

Note: The terminology used here to cite EU law instruments reflects the language used in the Scoping Document; it does not always reflect citation conventions.

Area of Cooperation

Comment

Child Protection

Council Regulation EC 2201/2003 – ‘Brussels IIa’ – that provides for recognition and enforcement of matters in family law is cited as legal basis for NSMC cross-border cooperation on child protection matters and is not included in the Protocol.

Commercial vehicle roadworthiness enforcement and concerted checkpoints | Vehicle and driver safety checks | Cabotage | Motor Insurance | Driver and Vehicle Licensing | International (cross-border) authorisations for bus and coach services | Ferries

EU instruments listed in the North-South Scoping Document as the legal basis for cooperation relating to transport in these areas is not included in the Protocol. The EU instruments are: Regulations (EC) No 1071/2009, 1072/2009 and 1073/2009; Regulation EC 561/2006 (drivers’ hours rules) and Directive 2002/15/EC (sector specific working time rules), Directive 2014/47/EU (roadside inspections), Directive 1996/53/EC (General Circulation Directive); Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market; Motor Insurance Directive (2009/103/EC); EU Regulation (EC) No 1073/2009 covering bus and coach travel; and EU Regulation 725/2004 making provision for disapplication of certain provisions in the Safety of Life at Sea Convention regarding information required for vessels travelling in seas of other Member States.

Irish Language Broadcasting | Mobile Roaming

EU instruments listed in North-South Scoping Document as the legal basis for cooperation in audio-visual and communication networks are not included in the Protocol. The EU instruments are: Audio-visual Media Services Directive (2010/13/EU); and Regulation (EU) No 531/2012 (amended by Regulations (EU) 2015/2120 and 2017/920.

Water pollution and water catchment | Water quality | Water regulation | River Basin Management

EU Water Framework Directive 2000/06/EC is cited as the legal basis for North-South cooperation related to management of water pollution, catchment, quality, regulation, and river basin management, but is not included in the Protocol.

Common Agricultural Policy

NSMC previously included the cross-border implementation of CAP as part of its priority work on agriculture – provision for Northern Ireland’s participation in CAP is not included in the Protocol.

EURES Cross Border Partnership

North-South cooperation to address the obstacles faced by cross-border workers, employers and jobseekers was underpinned by EU Regulation 492/2011 and EU Regulation 2016/589 which are not included in the Protocol. EURES funding was secured through the EU Employment and Social Innovation Fund of which the– UK/Northern Ireland are no longer part.

Benefit fraud cross-border cooperation

North-South cooperation to target and investigate benefit fraud was underpinning by EU Regulation 883/2004 which is not included in the Protocol.

Habitats and Birds Directive | All-Island Pollinator Plan |All-Ireland March Fritillary Group

North-South cooperation to coordinate surveillance, monitoring and reporting on protected species and wild birds, including to develop and implement a 2015-2020 All-Island Pollinator Plan and the activities of the All-Ireland Marsh Fritillary Group, was underpinned by the Habitats Directive (2009/147/EC) and the Wild Birds Directive (92/43/EEC) neither of which are included in the Protocol.

Flood Risk Management

North-South cooperation on flood risk management and arrangements for the maintenance of watercourses along the Northern Ireland-Ireland border was underpinned by Directive 2007/60/EC (the Floods Directive) and Directive 2011/92 (the Environmental Impact Assessment); neither are included in the Protocol.

Air Quality Issues

Commitment to North-South cooperation to tackle air quality underpinned by EU frameworks (e.g. National Emissions Ceilings Directive (EU) 2016/2284 and Ambient Air Quality Directive 2008/50/EC) which are not included in the Protocol.

Strategic Environmental Assessment

North-South cooperation relating to Strategic Environmental Assessments (SEA)’s was underpinned by Directive 2001/42/EC which is not included in the Protocol.

Mutual Recognition of Professional Qualifications of doctors and clinicians

EU Directive 2005/36/EC on the mutual recognition of professional qualifications is cited as legal basis for cross-border medical cooperation but is not included in the Protocol.

Cross-border police cooperation

EU instruments cited as the legal basis for North-South cooperation in policing are not included in the Protocol; excluded instruments are Council Framework Decision 2002/465/JHA, Council Decision 2008/615/JHA and Council Framework Decision 2006/960/JHA.

All Island Public Procurement

The Work of the All Island Public Procurement Steering Group underpinned by Directive 2014/24/EU on Public Procurement, Directive 2014/25/EU on Utilities Procurement and Directive 2014/23/EU on Concessions – these three Directives are not included in the Protocol.

Relief from safety and security summary declarations

Regulations 648/2005 and 1875/2006 relating to import and export control systems and mandatory safety and security declarations are cited as the legal basis for North-South cooperation relating to relief from safety and security declarations but these are not included in the Protocol. [Check links with UCC and Articles 34 and 36 of TFEU].