Northern Ireland’s hybrid trade regime: an examination of the relationship between the Ireland-Northern Ireland Protocol and the UK’s post-Brexit trade agreements

3.1 Overlaps and conflicts between protocol and UK trade agreements

The potential for conflicts between obligations derived from the Protocol and those from UK FTAs is something that is implicitly acknowledged in the text of the Protocol. It states that Northern Ireland “is part of the customs territory” [17] and that “[a]ccordingly, nothing in this Protocol shall prevent the United Kingdom from including Northern Ireland in the territorial scope of any agreements it may conclude with third countries, provided that those agreements do not prejudice the application of this Protocol” [18]. In other words, whilst the regime established for NI under the Protocol does not preclude NI from falling under the scope of UK trade agreements, where conflict of rules arise between the Protocol and UK trade agreements, it is the Protocol that must prevail. As discussed further on, in Section 4.1, a more explicit similar acknowledgment is made in the texts of recently concluded UK trade agreements. The UK has, in fact, adopted a practice of systematically including in its trade agreements, provisions that permit the UK to derogate from their obligations to the extent that this is required to ensure compliance with the Protocol [19]. In doing so, UK trade agreements acknowledge the existence of potential incompatibilities between themselves and the Protocol and confirm that where such incompatibilities emerge, the Protocol obligations must prevail over conflicting FTA obligations.

However, with the exception of a short, five-page, discussion included in a House of Commons International Trade Committee report on the interaction between the UK-AUS FTA and the Protocol (House of Commons – International Trade Committee, 2022), this is an issue that has not received much attention to date. The UK Government, in particular, has so far proved reluctant to openly engage with the issue of the relationship between the Protocol and UK trade agreements. In its impact assessments of the UK-AUS FTA (UK Department for International Trade, 2022), the UK-NZ FTA (UK Department for Business and Trade, 2022) and the CPTPP (UK Department for Business and Trade, 2023), the UK Government explicitly ruled out examining the impacts arising from the Protocol, and to the author’s knowledge, it is yet to provide a formal explanation for this stance. This is problematic on a number of fronts. Firstly, it creates uncertainty for NI businesses involved in international trade. As explained by the NI Department for the Economy, it remains unclear to what extent NI businesses can benefit from UK trade agreements and how this may undermine NI’s competitiveness within the UK [Written Evidence Submission from the Department for the Economy (AUS0030), 2020]. Secondly, from a broader perspective, a better understanding of the potential consequences of the interaction between the Protocol and UK trade agreements is important insofar as it would enhance the UK’s ability to conclude Protocol-compatible trade agreements and, in doing so, provide its partners comfort that it is able to comply with its international trade obligations. A better understanding of the relationship between the Protocol and the UK’s post-Brexit trade agreements is, therefore, crucial to both ensuring NI’s ability to trade with the rest of the world and safeguarding the UK’s bargaining power in the context of trade negotiations. The following sections seek to highlight the key areas where UK trade agreements may enter into conflict with Protocol obligations and examines some of the potential challenges associated with such conflicts.

3.2 Protocol tariff regime and UK free trade agreements

As mentioned above, the Protocol acknowledges that NI is part of the customs territory. In principle, this should mean that goods imported from third countries into NI are subject to UK tariffs. However, in practice, this is not the case. Because, under the Protocol, goods that are in free circulation in NI can be moved to the EU without being subject to EU tariffs there is a risk that traders could be tempted to export goods to NI to avoid paying EU tariffs, where EU tariffs are higher than UK tariffs (Murray and Rice, 2020; Welsh Government, 2020). To avoid this scenario, the Protocol establishes the “at risk regime” whereby non-EU goods brought into NI are presumed to be at risk of being subsequently moved on to the EU and, as such, are subject to EU tariffs [20]. In other words, the rule is that third-country goods imported into NI are subject to EU tariffs. UK tariffs will only apply if it can be shown that those goods are not at risk of being moved on to the EU. This applies whether goods are imported directly from the third-country into NI or are moved indirectly, via GB, into NI.

There are two ways traders can demonstrate that a third-country good is not at risk of being moved on to the EU. Firstly, if the EU tariff is equal to or less than the applicable UK tariff, the third-country good will not be deemed ‘at risk [21]. Indeed, there is little incentive to route imports to the EU, via NI, if EU tariffs are equivalent to or lower than UK tariffs. Secondly, EU tariffs are not due on imports if the importer is registered under the UK Trusted Trader Scheme and the difference between the EU tariff and the UK tariff is lower than 3% of the customs value of the good [22]. The only notable change brought about by the WF to the regime described above is that the Trusted Trader Scheme has been expanded. Whereas, under the original Protocol, the scheme was only open to NI businesses, following the WF, GB-based businesses can also register as trusted traders. Besides this, the “at risk” regime applicable to third-country good imports into NI established under the Protocol remains unchanged.

There are two important ways in which the “at risk” regime affects the ability of NI to import goods falling under the scope of UK FTAs. Firstly, the chances of third-country goods being considered at risk of being moved on to the EU will increase the lower the UK tariffs are compared to the corresponding EU tariffs. This is certainly the case where the UK enters into a trade agreement with a third-country as these, by and large, tend to include zero-tariff commitments on a significant number of product lines (AUSIK FTA Annex 2B Part 2B-4 Schedule of Tariff Commitment of the United Kingdom, 2022). The risk is further increased where the UK concludes trade agreements with countries that do not have similar arrangements with the EU as, in such cases, the tariff differentials between the EU and the UK are likely to be considerable.

The AUK-AUS FTA is a case in point. For wine products – Australia’s biggest export to the UK – the UK has committed to apply zero-rate tariffs. This is in contrast to the EU which currently applies a 32.00 EUR/hl [23]. Any Australian wine imported into to NI, whether directly or via GB, will automatically be considered at risk of being moved on to the EU and subject to the applicable EU tariff. Another useful example can be found in the context of the CPTPP. According to the UK Government, 99% of goods traded between the UK and CPTPP countries will be eligible for zero tariff treatment (UK Government, 2023). Considering that some CPTPP parties do not have trade agreements in place with the EU, the UK’s accession to this arrangement will inevitably exacerbate tariffs differentials between the EU and the UK. For example, under the CPTPP, the UK has controversially agreed to entirely remove tariffs on palm oil imports from Malaysia (Beatie and Terzono, 2023) whereas the EU applies a 12.8% tariff on such products [24].

The same difficult exists in relation to tariff-rate quotas (TRQs). TRQs are measures whereby countries commit to apply reduced tariffs on an import up to an agreed quota (in-quota tariff) (Downes, 2017). However, import over and above that quota will be subject to higher tariffs. Where the UK agrees to apply a TRQ on a third-country import, it is possible that the in-quota tariff will be lower than the EU tariff. In such cases, imports covered by the TRQ will be deemed at risk of being moved on to the EU as long as the quota is not exhausted. The upshot for NI importers is that they are likely to be precluded from benefitting from lower in-quota tariffs agreed to by the UK in the context of its FTAs. This will be the case for Australia’s second biggest export to the UK, bovine meat products, which are subject to a 20% in-quota EU tariff compared to a 0% in-quota UK tariff under the AUSUK FTA (UK-AUS FTA, 2022).

The EU is currently negotiating a trade agreement with Australia (Council of the European Union, 2018) and the successful conclusion of such negotiations would, of course, reduce some of these problematic tariff differentials. However, the fact that the EU and the UK may conclude trade agreements with the same partners will not entirely eradicate the problem to the extent that UK and EU are unlikely to secure the exact same levels of trade liberalisation in their respective agreements. For example, whilst both the EU and the UK have recently concluded trade agreements with New Zealand, the EU-New Zealand trade agreement maintains considerably higher tariffs on NZ agri-food imports than the UK-NZ FTA [25]. Short of a full alignment between UK and EU external tariff regimes, the tariff differential between the two will continue to affect NI’s ability to benefit from the preferential treatment negotiated by the UK with third countries.

Secondly, the “at risk” regime may inhibit the ability of NI importers to bring in goods from GB where such goods contain inputs from third countries. This is primarily due to the interaction between the Protocol and the rules of origin (RoO) included in the EU-UK Trade and Cooperation (TCA) [26]. RoO are provisions that define the economic nationality of goods, their main purpose being to ensure that only goods originating from the parties to the agreement can benefit from the preferential treatment under said agreement (Augier et al., 2005). Like most trade agreements, the TCA provides that goods are conferred originating status if they are wholly obtained [27] in the party exporting the good or if they have been “sufficiently transformed” [28] in that party. Third-country goods that are imported by the EU or the UK can count as originating products for the purposes of the TCA if it is shown that they have undergone sufficient transformation, as defined in the product specific requirements set out in Annex 3 of the TCA, in the territory of one of these parties. By contrast, if a good made in the UK uses inputs imported from third-countries in the manufacturing or production process in a manner that fails to comply with the TCA’s product specific requirements, such goods will not be conferred originating status. This means that, if exported to the EU, such goods will not be deemed to be UK-originating goods for the purposes of the TCA and will therefore not benefit from the preferential treatment therein. Crucially, it also means that such goods will be deemed as third-country goods under Protocol. The upshot is that where such goods are moved from GB into NI, they will be subject to EU tariffs unless the tariff differential thresholds set out under the Protocol, to determine whether such goods are not at risk of being moved to the EU, are not exceeded.

It is worth noting that the same problem arises in instances where the UK and the EU conclude trade agreements with the same third-country. For example, whilst both the EU and the UK have concluded almost identical trade agreements with countries such as Canada, Japan and South Korea, goods imported from these countries into the UK do not count as originating goods for the purposes of the TCA. Where goods from GB incorporate components from the EU and UK FTA partners and fall foul of the product specific requirements under the TCA, they will be subject to EU tariffs when moved into NI.

One potential solution to this problem would be for the EU, the UK and the FTA partners they have in common to agree to rules on diagonal cumulation (Ayele et al., 2021). Diagonal cumulation would allow products from these countries to count as originating products under the product-specific rules of the TCA (Soprano, 2019). In practice, this would mean that it would be possible for the inputs originating from countries such as Canada to be considered as originating materials for the purposes of the TCA. However, diagonal cumulation can only apply if all countries involved agree to it. Here, it is worth noting that whilst the UK was keen on including diagonal cumulation in the TCA, the EU rejected such proposals (House of Lords European Union Committee, 2021). Although the reasons for the EU’s rejection of diagonal cumulation in the TCA have never been formally set out, some have speculated that the EU wanted to create additional incentives for firms to locate production and manufacturing facilities in the EU (Chornyi, 2022). Whatever its rationale, the refusal to countenance diagonal cumulation has exacerbated barriers to GB-NI trade and further undermined NI’s ability to fully benefit from UK FTAs.

3.3 Protocol, trade remedies and UK free trade agreements

The preceding section focussed on how the operation of the Protocol may inhibit the ability of NI to benefit from preferential tariff treatment in UK FTAs. But the Protocol may also affect the extent to which NI can benefit from trade remedies adopted in the context of such FTAs. Trade remedies, or trade defence instruments, are measures that are intended to protect domestic industry from imports. These include anti-dumping measures [29] and countervailing measures [30] which protect domestic industries against unfair trading practices (e.g. dumping or illegal subsidisation) and safeguard measures [31] which protect domestic industries from unforeseen increases in imports resulting from trade liberalisation.

Trade remedies consist in the suspension of tariff liberalisation concessions (typically, temporary increases in import tariffs) and, the substantive and procedural conditions under which such measures can be applied, are governed at WTO level. Regional and bilateral trade agreements can, however, include provisions regulating the application trade remedies between the parties. For example, with respect to safeguard measures, trade agreements often include global safeguard clauses which confirm the right of the parties to the agreement to apply safeguards in accordance with WTO law (Crawford et al., 2013; Viljoen, 2016). The operation of such clauses varies from one trade agreement to the next. Some FTAs merely restate the ability of the parties to exercise their rights under WTO law, but some global safeguard clauses allow for the exclusion of FTA parties under certain conditions [32]. Beside global safeguards, trade agreements will often include “bilateral safeguards” which enable parties to temporarily suspend concessions granted under the agreement. These can be either general or specific (where they only apply to a select set of goods). The nature and scope of such safeguards will vary from on country to another and from one agreement to the next. Whilst some FTAs broadly replicate WTO law, others may deviate and, in doing so, set different thresholds for the triggering of safeguards³². For example, whilst WTO law does not prescribe a particular form for safeguard measures, some PTAs specify that the safeguards can only take the form of the suspension of tariff concessions [33].

Chapter 3 of the UK-AUS FTA, Chapter 8 of the UK-NZ FTA and Chapter 6 of the CPTPP contain provisions governing the application of both global and bilateral safeguards measures [34]. The parties are therefore allowed to apply WTO safeguards and apply bilateral safeguards where trade liberalisation commitments under the FTA have led to a sudden surge imports that has caused or threatens to cause serious injury to a domestic industry.

This raises the question of NI status in relation to UK safeguard measures adopted in the context of UK FTAs. Under the terms of the Protocol, NI is required to comply with EU trade defence legislation [35]. If, for example, the EU applies safeguard measures, in the form of higher tariffs targeting specific imports, NI would be required to apply those. The Protocol, however, does not apply the at-risk regime with respect to trade defence measures [36]. This means that if, hypothetically, the UK were to determine that a domestic industry had suffered an injury as a consequence of trade liberalisation commitments made in the UK-AUS FTA, the UK-NZ FTA or the CPTPP, domestic industries in NI may not benefit from the same protections as the rest of the UK.

Such an outcome would make little sense given the rationale of the Protocol, which is to ensure unfettered trade within the island of Ireland whilst protecting the integrity of the EU customs territory and internal market. Unless the EU has put in place safeguard measures on third-country goods that are higher than those applied by the UK on the same goods, the application of UK safeguard measures on those goods when imported into NI would in no way undermine the integrity of the EU customs territory. Indeed, there would be no incentive on third-country exporters affected by these safeguards to route their exports destined to the EU via NI in order to avoid the application of EU safeguards. In light of this, the extension of the at-risk regime to trade defence instruments would be desirable in that it would allow NI domestic industries to benefit from protective measures adopted by the UK Government barring circumstances where such protective measures have been put in place at the EU level.

3.4 Protocol and the regulatory dimension of UK free trade agreements

4.1 Conflict of laws clauses

The existence of overlapping and, often contradictory, obligations under the Protocol and UK FTAs creates a conflict of laws. To address such potential conflicts the UK is now systematically including in its FTAs provisions confirming that FTA obligations cannot undermine the UK’s ability to comply with the Protocol. Article 1.2(3)–(4) of the UK-AUS FTA provides as follows:

3. For as long as the Protocol on Ireland/Northern Ireland to the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, signed in London and Brussels on 24 January 2020 (the “Protocol”) is in force,[2] nothing in this Agreement shall preclude the United Kingdom from adopting or maintaining measures, or refraining from doing so, further to the Protocol, and amendments thereto and subsequent agreements replacing parts thereof, provided that such measures, or the absence of such measures, are not used as a means of arbitrary or unjustified discrimination against the other Party or as a disguised restriction on trade.

On request of either Party, the Parties shall hold consultations, in relation to the effects of a measure described in paragraph 3 the United Kingdom has adopted, or absence thereof, on this Agreement and seek a mutually acceptable solution.

This provision is replicated, almost verbatim, in Article 1.2(3)–(4) of the UK-NZ FTA and a very similar one can be found in Article 15.2 of the UK CPTPP Accession Protocol (Accession protocol of the United Kingdom of Great Britain and Northern Ireland to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 2023). These provisions are conflict of laws clauses which have the effect of placing Protocol obligations above those enshrined in the FTAs concerned. Wherever a conflict arises between a Protocol and an FTA obligation, the UK cannot be precluded from applying the Protocol obligation. Further, by specifying that “nothing in this agreement shall preclude” [60] the UK from adopting or maintaining measures required under the Protocol, the provision makes it clear that it applies in relation all FTA obligations. Accordingly, there are no FTA obligations that can prevail over conflicting Protocol obligations.

Where the UK applies a measure, in line with the Protocol, that conflicts an FTA obligation, it must ensure that the measure is not used as “a means of arbitrary or unjustified discrimination against the other Party or as a disguised restriction on trade”. Such language, which is lifted from WTO law (specifically Article XX GATT on general exceptions) is intended to avoid situations where the UK abuses its right to adopt measures that are incompatible with its trade agreements. The terms “arbitrary and unjustified discrimination” refers to discriminatory measures that cannot be objectively linked to the Protocol [61]. This would be the case, for example, if the UK were to apply EU tariffs on Australian goods imported into Northern Ireland but not on other “like” imports from other third-countries with whom it has an FTA. In WTO case law, the reference to “disguised restrictions of international trade” [62] concerns concealed or unannounced restrictions – that is, instances where a WTO member misrepresents the protectionist aims of trade restrictive measures. The UK cannot, therefore, use compliance with a Protocol as a pretext to apply protectionist measures.

Although the UK is entitled to derogate from its FTA obligations to ensure compliance with the Protocol measures, such derogations may have the effect of depriving its partners of the benefit of concessions made under the FTAs. In recognition of these adverse effects, Paragraph 4 provides that either party can request consultations to be held in relation to the effects of trade restrictive measures adopted by the UK in compliance with the Protocol. The consultation mechanism is intended to provide the parties with an opportunity to discuss the effects of any trade restrictive measure resulting from the compliance with the Protocol and find mutually acceptable solutions.

It is noteworthy that the consultation mechanism it is not a precondition for the adoption of trade restrictive measures. The UK is under no obligation to notify its FTA partners of its intent to apply measures that may be incompatible with its obligations under the FTA. This is logical given the enormous scope of trade-related obligations covered by the Protocol and the dynamic and fluid nature of the obligations contained therein. The UK is not only required to comply with EU customs and internal market laws as they existed on the date when the Protocol was signed. It must comply with EU law, as it evolves over time and it must give effect to such laws in the same manner as any other EU Member State [63]. It would, as result, simply be practically unrealistic to require the UK to give prior notice to its FTA partners for every trade restrictive measure resulting from Protocol obligations.

However, the application of Protocol-related measures that are incompatible with obligations under UK FTAs is not consequence free. Firstly, the fact that consultations are used to “seek mutually acceptable solutions” opens the door for the possibility of compensation measures in cases where Protocol compliance deprives a party from a benefit granted by the FTA. In such cases, the parties may, for example, agree to allow the UK’s FTA partner to suspend its own concessions to reinstate the balance of the negotiated FTA outcome. The suspension of concessions could take the form, for example, of the reinstatement of certain tariffs or TRQs on UK imports. The UK’s accession to the CPTPP has brought additional elements to the Protocol consultation mechanism which are not present in either the UK-AUS or the UK-NZ FTAs and further reinforce the notion that the application of trade restrictive measures as a consequence of the Protocol may lead to the application of counter-measures by the UK’s FTA partners. Firstly, UK CPTPP Accession Protocol provides that where the Protocol is changed in a manner that substantially affects the operation of the CPTPP, the UK must notify the other parties [64]. Secondly, it establishes an obligation to review the UK’s implementation of the CPTPP in the context of the Protocol to ensure that the balance of rights and obligations between the parties is maintained [65]. The review must occur four years after the UK’s accession to the CPTPP and every 6 years thereafter⁶⁵. The text stops short of specifying how the parties would address instances where the operation of the Protocol was to be found to disrupt the balance of the negotiated outcome, but it is not beyond the realms of possibility that redressing that balance may require the renegotiation of the terms of the UK’s accession to the CPTPP. In any case, the inclusion of these procedural obligations is significant insofar, as they reflect an understanding from the UK’s CPTPP partners that conflicts between the Protocol and UK FTAs can affect commitments made and concessions granted in the agreements.

4.2 The Protocol, UK free trade agreements and the UK internal market

This paper has highlighted how UK trade agreements may potentially lead to an increase in obstacles to trade faced by businesses that move goods between GB and NI [66]. By making it harder for NI firms to import goods from the rest of the UK, these trade barriers undermine NI’s position within the UK internal market. This raises the question of whether UK FTA commitments that create such barriers are lawful either under the Protocol or under UK law [Written Evidence Submission from the Department for the Economy (AUS0030), 2020].

With respect to the Protocol, the key provision is Article 6 of the Protocol on the protection of the UK internal market. Article 6(1) of the Protocol provides that “[n]othing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market”. This provision acts as confirmation that there are no obligations under the Protocol that could be used to justify the imposition of trade restrictions on NI goods being moved to GB. However, this sentence is immediately contradicted by the second sentence of Article 6(1) of the Protocol which states that restrictions and prohibitions on goods moved from NI to GB can be made applicable if required by the EU’s international obligations (in practice, this concerns export restrictions and prohibitions such as restriction on export of dual use goods, endangered species and the application of trade sanctions).

Moreover, Article 6 of the Protocol does not seek to provide a similar guarantee of unfettered trade in connection to GB goods moved into NI. Article 6 (2) of the Protocol also provides that:

[h]aving regard to Northern Ireland's integral place in the United Kingdom's internal market, the [EU] and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom, in accordance with applicable legislation and taking into account their respective regulatory regimes.

The provision is limited in two specific ways. Firstly, it does not establish a legally binding obligation to facilitate trade. The EU and the UK are only required to carry out their best efforts to facilitate trade. There is no requirement to ensure that no additional barriers to trade are erected, only an invitation to strive to avoid such barriers where possible. Secondly, the provision merely requires the facilitation of trade, not the full removal of barriers to trade. There is, implicitly, a recognition that in some cases, the EU and the UK will have no choice but to apply barriers to GB-NI trade. This recognition is reinforced by the reference to the need to consider the “respective regulatory frameworks” of the parties to the Protocol when using their best efforts to facilitate trade. In short, whilst the EU and the UK must strive to facilitate trade between GB and NI, there is no requirement to do so and there is an acceptance that such barriers may arise as a consequence of the application of the respective domestic regulatory requirements of each party.

Another potential avenue to challenge the legality of GB-NI trade barriers can be found under UK law. The main domestic legislation regulating trade within the UK is the 2020 IMA⁸. Its primary purpose is to avoid restrictions on the movement of goods and services traded between the different constituent parts of the UK – that is, England, Northern Ireland, Scotland and Wales. With respect to trade in goods, the IMA establishes the mutual recognition principle according to which goods that can be lawfully sold in one part of the UK should be able to be sold in any other part of the UK without being subject to any regulatory restrictions [67]. In this way, a good that is subject to specific regulatory requirements in the part of the UK from which it originates, does not have to comply with additional requirements imposed in other parts of the UK where it may be sold (Weatherill, 2021; Armstrong, 2022).

With respect to NI, the principle of mutual recognition applies in an asymmetric manner (Barnard, 2021). NI qualifying goods that are being moved to the rest of the UK fully benefit from the principle despite the fact that NI goods are subject to EU law [68]. The same does not apply for GB goods moving to NI. Such goods are governed by the Protocol [69] and can only access the NI market if they comply with applicable EU customs and internal market rules. Therefore, the IMA only protects NI’s position within the UK internal market in relation to goods that moved from NI into GB. As the barriers to trade that would result from UK FTAs concern the movement of goods from GB into NI, the IMA does not seem to provide a basis to challenge the legality of trade barriers created by FTAs.

The IMA does contain, one provision that may potentially constrain the UK’s discretion in the decision-making process underpinning the negotiation of trade agreements. Section 46 establishes an obligation on UK authorities, including national government and devolved authorities, to have a special regard to NI’s integral place in the UK internal market, to respect NI’s place as part of the UK customs territory and facilitate the free flow of goods between GB and NI. In the Explanatory Notes to the Act, the UK Government that the purpose of this provision is to ensure that UK authorities when administering the Protocol have the “highest possible” (UK Internal Market Act Explanatory Notes, 2020) regard to NI’s position within the UK customs territory and internal market. Such language suggests that reducing barriers to trade between GB and NI should be one of the primary considerations of authorities when developing and applying measures that may affect NI and the Protocol.

As suggested by Barnard, Section 46 seems to fulfil a similar function to Article 6 of the Protocol [70]. It seems to, at the very least, establish an obligation of best endeavours to facilitate trade between GB and NI. However, it is arguable that Section 46 of the IMA actually goes further than this by underlining that the facilitation of GB-NI trade should be a primary factor in the decision-making processes underpinning policy and regulatory measures that affect intra-UK trade. More than an obligation of best endeavours, Section 46 of the IMA, arguably, creates a procedural requirement to consider the impact of UK measures on NI’s position within the internal market and customs territory. Whilst this does not equate to a requirement to ensure that no new barriers are created, it does establish an obligation to consider, before adopting a decision, how such decisions may impact NI’s position within the UK internal market and customs territory. In the context of the negotiation of trade agreements, this reading of Section 46 of the IMA raises questions about the UK government’s current refusal to carry our ex ante impact assessments focusing on the interplay between future UK FTAs and the Protocol [71]. Such impact assessments would ensure that key areas overlapping areas between the Protocol and prospective FTAs are identified prior to the initiation of negotiations which would, in turn, inform the UK’s approach to negotiations. Although the UK government would maintain full discretion in relation to the final outcome of these negotiations, the impact assessments would inform the negotiation process and minimise potential conflicts with the Protocol when FTAs are being implemented.