100: Northern Ireland protocol bill introduced
The much-anticipated Northern Ireland Protocol Bill was introduced into Parliament this week.
The Protocol is part of the EU Withdrawal Agreement. It provides that post-Brexit, NI remains in the EU customs union, unlike in the rest of the UK. This avoids creating a ‘hard border’ on the island of Ireland, as required by the Good Friday Agreement, but creates a form of customs border in the Irish Sea: goods travelling from GB to NI are subject to EU customs checks and tariffs. This is unpopular with NI Unionist politicians, who see it as diluting NI’s place in the United Kingdom, and with Brexit-backing MPs, who see it as continued EU interference in the UK’s affairs.
The UK Government has repeatedly sought to water down the practical effect of the Protocol, for example, by delaying the introduction of checks on goods travelling from NI to GB (and so, in practice, also from Ireland), and seeking ‘more flexibility’ in the EU in terms of its application. Then, following Northern Ireland Assembly May 2022 elections, the DUP refused to enter an administration with Sinn Fein (now NI’s largest party) unless there were significant changes to the protocol. Foreign Secretary Liz Truss then indicated the government had ‘no choice but to act’ if the EU did not give ground, suggesting it would be lawful to do so. This legal advice hasn’t been revealed, but appears to be predicated on the idea that the DUP’s refusal to participate in the Assembly constitutes a threat to peace and stability in Northern Ireland, removing the ‘Good Friday Agreement justification’ for its existence, and justifying unilateral action by the UK.
What’s in the Bill
The Bill would do four things:
- establish a new ‘green channel’ arrangements for goods shipped from GB to NI (i.e. staying in the UK) – removing the burden caused by the application of EU customs and checks to all goods at present
- establish a new ‘dual regulatory’ model to allow businesses to choose between compliance with UK or EU rules – removing barriers to trade and managing risks of future divergence between UK and EU rules
- ensure the Government can set UK-wide policies on subsidy control and VAT – ‘overcoming constraints that have meant NI has not benefited from the same support as other parts of the UK’
- deal with the Protocol’s unequal governance, removing the role of the CJEU in dispute settlement and providing the means for UK authorities and courts to set out the arrangements which apply in NI
There’s more detail in this Government explainer.
The Bill is undoubtedly controversial – the EU has launched legal action – and there are a number of oddities in how it is drafted (in my view). Taking it in clause order—
- Clause 1 states ‘This Act provides that certain specified provision of the Northern Ireland Protocol does not have effect in the United Kingdom …’ This is a useful overview of the main purpose of the Act, but what is the legal effect of this clause is isolation? If all other provisions in the Bill were deleted / repealed, would it have any effect at all? Clause 7(1) is similar: ‘this section allows …’.
- The Bill uses the phrase ‘excluded provision’ extensively and, while the intention is obvious, the term doesn’t seem to me to be defined in any meaningful sense. Clause 25 defines it as a ‘provision of the NI Protocol or any other part of the EU withdrawal agreement so far as it is excluded provision by virtue of this Act’ which seems rather circular, and ‘exclusion’ as ‘the effect which arises by virtue of provision of the Northern Ireland Protocol or of any other part of the EU withdrawal agreement being excluded provision’, which doesn’t seem to add very much. It would be better drafting, I think, for ‘excluded provision’ and clause 1(a) to be tied together, if that is the Government’s intention, or for the definition of ‘excluded provision’ to use the words ‘does not apply’ as used, e.g. in clause 3.
- Clauses 2 and 3 disapply ss.7A and 7C of the European Union (Withdrawal) Act 2018 to any ‘excluded provision’ of the Protocol. Section 7A provides that the rights, remedies etc in the withdrawal agreement (WA) are to be recognised and available in UK law, and Section 7C re interpretation of that law in accordance with the agreements. Contrary to media shorthand, there’s no actual ‘re-writing’ of the Protocol (it’s part of an international agreement), but changes to its domestic effect.
- There’s a clear Government explainer on the new green lane proposals here, including a handy flowchart which we’ve reproduced below. With the right political will to find solutions, I do wonder how far this could have been done under the Protocol in practice, if the EU and UK (through the Joint Committee) had agreed that only ‘light touch’ checks / paperwork were to be required for goods which weren’t leaving NI – the Protocol already provides that customs duties aren’t payable on such goods, so it seems they are identifiable.
- The ‘dual regulatory’ proposal for goods (clauses 7 to 11) initially seemed extraordinary to me as a matter of law: ie businesses ‘opting’ to comply with either EU or UK rules or both, because, in essence, it seems to allow an individual to choose the law to which they are subject. But, in certain circumstances, it seems a practical proposal. For example, if the EU changes its traffic light labelling for foods (as is under consideration) and the UK doesn’t follow suit, then under the proposals a GB supplier (of, say, fish fingers) could opt to use the GB labelling or the EU labelling on the boxes going to NI. I can imagine it might be easier for Birdseye to use the EU labelling for all boxes leaving GB for Ireland (and the rest of EU), or it might be easier to use UK labelling for all fishfingers going to Sainsbury’s across the UK (perhaps Captain Birdseye could choose). But I imagine it would get a lot more contentious for matters like sanitary / phytosanitary divergence – eg sale or rearing in NI of plants or animals under UK rules, which don’t require the same jabs / treatments as the EU, or which have been genetically modified. The government also seeks to justify the dual regime on the basis of a democratic deficit for NI citizens – rules imposed on NI by the EU without the NI politicians having a say.
- Clause 12 excludes Article 10 re continued application of EU state aid rules in NI, applying the UK’s very new subsidy rules in NI.
- Clause 13 would removes the supervisory role of the CJEU re the NI Protocol in its entirety not merely in respect of the ‘excluded provision’ (so including re rights of individuals under art. 2 for example). But (slightly cheekily, perhaps) Clause 20 then provides a power for a future reference procedure to the CJEU where a UK court or tribunal considers it necessary to seek a view re the NIP. We want the benefit of the CJEU’s expertise it would seem, but not to have to do what it says?
- There are wide powers for the Secretary of State to make change to, and exceptions from, ‘excluded provision’ in Clauses 14 to 16 and to VAT in Clause 17.
- Clause 18 is weird: ‘A Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol (where that conduct is not otherwise authorised by this Act) if the Minister of the Crown considers it appropriate to do so in connection with one or more of the purposes of this Act.’ The Explanatory Notes indicate this allows for the issuing of guidance – then why not say so?
- Clause 19 provides that a Minister of the Crown may, by regulations, make appropriate provision to implement a new agreement with the EU which amends or replaces the Northern Ireland Protocol. I’m not clear if this is intended to remove the requirement for primary legislation to give domestic effect to any such agreement.
- Clause 22(3) clarifies that regulations under this Bill ‘may not create or facilitate border arrangements between Northern Ireland and the Republic of Ireland which feature at the border either physical infrastructure including border posts), or checks and controls, which did not exist before exit day’. The dismantling of border posts and other infrastructure was, of course, a key component of the Good Friday Agreement.
A change is coming
If you’ve stuck with this post to the end – well done! – and if you’ve been reading this blog for some time, even more well done and thank you for your interest and support.
Going forward, from the next post (number 101!), you may notice some changes. In addition to Brexit matters, we’re aiming to post on a wider range of constitutional, regulatory and public law matters, including judicial reviews and public inquiries, and that means there will a wider range of authors, drawn from experts across BDB Pitmans. The name of the blog is changing too – to ‘Public Law’.
We hope you enjoy our new direction!