What's the problem with the Internal Market Bill's article 42?

Question

The IMB's article 42 (pg 38) states (emphasis mine):

42 Power to disapply or modify export declarations and other exit procedures

(1) A Minister of the Crown may by regulations make provision about the application of exit procedures to goods, or a description of goods, when moving from Northern Ireland to Great Britain.
(...)

This is apparently in disagreement with what's been agreed to in the withdrawal agreement, where companies are expected to fill out export forms for all goods moving from NI to the mainland.

So that is in and of itself a problem, sure. It was agreed companies would need to fill out forms and now the UK is saying they may waive that requirement, in contravention of the withdrawal agreement.

But, is it a problem, really?

As far as I can see, this would merely be a hampering of the UK's economy, by theoretically allowing goods which should be tariffed on entering Great Britain to avoid those expenses. But isn't that a problem for the UK and only the UK, "shooting itself in the foot", as it were?

Obviously, if the problem were reversed, with the UK waiving a requirement that companies fill out export forms when moving goods from Great Britain into Northern Ireland, that'd become an obvious problem. After all, part of the rationale for Brexit was the hope of reducing tariffs. So if this were the case, companies would be able to import into the UK (paying low tariffs), move the goods into NI (without export forms), and from there disperse their products throughout the EU without paying its higher tariffs.

But as it is, why should any other nation care if the UK surrenders its right to tariff goods coming from Northern Ireland?

Answer 1

You may just as well ask: why does the EU require export declarations (from its own territories--effectively the territories on which it customs code applies) at all. To list some of the official reasons, as rendered by the Irish:

Why is Revenue interested in Exports? Revenue has an interest in exports for a number of reasons including:

• enforcing export restrictions and prohibitions
• ensuring that export licence requirements are met
• ensuring that EU regulations for export relief schemes are correctly applied
• preventing the unauthorised diversion of duty-free or VAT (Value-Added Tax) zero-rated goods to the home market
• ensuring that requirements for safety and security purposes have been adhered to
• collecting export statistics for the Central Statistics Office [...]

Are there any prohibitions or restrictions on what you can export?

The export of certain goods is prohibited or restricted. This means that certain goods may not be exported at all, while other goods may be exported only with a valid licence or authorisation. You will find information about goods that are prohibited or restricted on export in Prohibitions and Restrictions. Certain prohibitions and restrictions apply to goods irrespective of their destination. Other prohibitions and restrictions do not apply to movementswithin the EU. The following are the principal types of products that are prohibited or restricted on export:

• agricultural products
• certain food products
• dual use goods
• cultural goods
• drugs
• chemicals
• weapons
• counterfeit or pirated goods
• indecent articles, publications, video recordings
• CITES (Convention on International Trade in Endangered Species).

Saying that a NI business can export whatever it wants to GB (with no EU paper trace whatsoever) effectively undermines all those controls.

Yeah, the EU probably doesn't make use of such export restrictions/controls on the scale that the US does, but for example during the early stages of Covid-19 crisis it imposed export restrictions on PPE for example (that were not renewed).

This was actually touched upon in some the Lords committees proceedings:

Checks and controls in relation to the prohibition or restriction of the export of goods

146.The reference to prohibitions or restrictions being applied only “to the extent strictly required by any international obligation of the Union” is significant, since a number of EU sanctions or restrictive measures derive from binding Resolutions of the UN Security Council, for instance in relation to trafficking in firearms, endangered species or diamonds. In its technical note on the implementation of the Protocol, the Commission interpreted this requirement as meaning that “all goods leaving Northern Ireland to either a third country or Great Britain are subject to prohibitions and restrictions applicable to exports under relevant Union law, without prejudice to Article 6(1) of the Protocol.”

147.The Government’s Command Paper confirmed that checks and controls will be required on:

“goods falling within the very limited number of procedures relating to specific international obligations binding on the UK and the EU—for example, obligations on the movement of endangered species—and where traders want to use special procedures like duty suspense where we would continue to provide facilitations. We will ensure that the necessary procedures apply only to very minimal volumes of relevant trade necessary to comply with those obligations. For goods affected, the processes put in place in these very specific cases will have negligible implications for trade as a whole. We will provide guidance to the small number of traders affected before the end of the transition period.”

148. We welcome the Government’s confirmation that checks and controls will be required on goods moving from Northern Ireland to Great Britain to the extent necessary to meet the UK and the EU’s international law obligations (for instance to comply with resolutions of the UN Security Council imposing economic sanctions) regarding the prohibition or restriction of the export of goods. We invite the Government to set out the nature, scale and location of such checks and controls.

Exit summary declarations

149. Article 6 also needs to be read in conjunction with Articles 5(3) and 5(4), which, as we have seen, apply EU customs legislation, including the Union Customs Code, to Northern Ireland. In its technical note on the implementation of the Protocol, the Commission states that the UK has “committed to apply the relevant Union Customs Code formalities in respect of all goods leaving Northern Ireland to either a third country or Great Britain”. The Union Customs Code implies a requirement to complete exit summary declarations on goods moving from Northern Ireland to Great Britain (or third countries), as a ‘Safety and Security Declaration’, which the EU uses to help enforce its international restrictions and prohibitions, referred to above.

The Government’s view

150. The Government’s position on the requirement for exit summary declarations has lacked clarity in the months since the Protocol was published. [...]

Well, it's not so unclear now.