Colin Murray, Reader in Public Law, Newcastle Law School
Photo credit: Dom0803, via Wikimedia Commons
In September 2020 Brandon Lewis set the tone for the UK’s interactions with the Northern Ireland Protocol by admitting that the Internal Market Bill, about to be introduced into Westminster, by admitting that the proposed legislation would breach the UK’s international commitments under the Withdrawal Agreement in a ‘very specific and limited way’. Ahead of the publication of the new Northern Ireland Protocol Bill, Lewis has been determined not to make the same mistake twice and has insisted that it ‘won’t break international law’. The Bill does, and we’re a long way beyond the specific and limited.
The Protocol and Brexit
The UK Government insists that the Protocol cannot continue in its current form as it does not command cross-community consent within Northern Ireland. That Brexit did not command cross community consent and the Protocol operates to mitigate some of the impacts of Brexit on Northern Ireland is written out of this analysis. The precise nature of the breach of the 1998 Agreement is, at best, vague. The UK Government has hitherto actively defended litigation against the Protocol on the basis that it is compliant with the 1998 Agreement. Cross-community consent, moreover, attaches under the Agreement and its implementing legislation to decisions within the Northern Ireland Assembly, not to international treaties concluded by the UK Government.
The UK Government’s other common refrain is that the Protocol it agreed is not the problem, but rather that the EU has been so dogmatic in the application of its trade and goods regulation provisions that it has become unworkable. This position, prominent in the legal position accompanying the new Bill, is unsustainable. The EU has repeatedly agreed reworks to the operation of the Protocol as concluded in 2019, in areas including state aid, medicine supply and in extending grace periods covering certain sectors. If the Protocol is more challenging to operate in practice than some had at first hoped, this is in large part the result to the limited nature of the Trade and Co-operation Agreement (and in particular the UK rejecting maintaining alignment with EU food and agriculture standards). The UK Government’s choices are entirely bound up in the supposed ‘peril that has emerged’ for Northern Ireland.
Brexit has brought with it inevitable dislocations for the Northern Ireland economy, and few dispute that the Protocol could be improved in its operation (a suite of EU reform proposals have been on the table since October 2021, and it has moved unilaterally to address highly contentious issues around medicines). But there is very little hard data in the public domain on the nature of the supposed divergences which have resulted from the Protocol, as opposed to Brexit itself, and even if there was, this would be a reason to trigger the trade protection provision within the Protocol, Article 16, rather than to seek to abandon particular obligations. It is untenable for the UK Government to invoke the doctrine of necessity, based on a legal position that it ‘has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution’, when its own conduct has contributed to the situation, and when it has made no effort to use the specific mechanisms available within the Protocol for addressing such societal concerns.
Every time the possibility of triggering Article 16 has come up, since it was prominently raised in the July 2021 Command Paper, the UK Government has drawn back. The Owen Patterson affair, Party-gate and Putin’s invasion of Ukraine all undoubtedly disrupted this agenda. Equally, however, the limits of Article 16 loomed large; responses using this provision would themselves amount to a breach of the Protocol if they were not proportionate to substantive problems. Article 16 was not a magic wand capable of sweeping away inconvenient aspects of the Protocol. For a UK Government committed to aggressively diverging from EU standards the Protocol presents a pressing problem; every one of its own divergences will harden barriers to trade in the Irish sea. It would like to achieve far reaching Protocol reform on its own terms to avoid that outcome. Ministerial talk of ‘safeguarding’ the 1998 Agreement is nothing more than a superficial pretext.
The repeated failures to trigger Article 16 in the last year (involving presenting the data and crafting a targeted response within its terms) nonetheless left the Democratic Unionist Party (DUP) more exposed and incurred a debt to their thwarted expectations. The party, as a result, collapsed the Northern Ireland Executive in February and have been refusing to engage in any form of power-sharing since last month’s Assembly elections. It is now so distrustful of the UK Government’s position that they remain sceptical of reengaging with power-sharing processes in Northern Ireland even with the publication of the new legislation, even as the Foreign Secretary fumes that they should now ‘get on with it’.
The Protocol Bill
The Bill, on its face, would appear to be everything that the DUP could ask for and more. But it is precisely because it is so far reaching, and so reliant on placing powers into the hands of ministers, that calls into question whether it can make it onto the statute book in its present form. At present, the EU law obligations which remain applicable to Northern Ireland under the Protocol flow directly into domestic law by the ‘conduit pipe’, to use the language of the UK Supreme Court in Miller, of section 7A of the European Union (Withdrawal) Act 2018. Clause 2 of the new Bill excludes a swathe of Protocol provisions from the scope of section 7A, cutting the pipe. This does not, of itself, absolve the UK of its international obligations. The EU can continue to take action against the UK for this breach of the Withdrawal Agreement. But it severs the connection between these Protocol obligations and domestic law.
The Protocol provisions directly excluded from the operation of section 7A include all of its provisions relating to the movement of goods, including customs, (clause 4) and the regulation of goods (clause 8), state aid rules (clause 12) and the enforcement role of the Court of Justice of the European Union (clause 13). In each of these regards, ministers are given far-reaching powers to make new domestic law, enabling the UK Government to substitute its own scheme in place of the Protocol’s rules. Clause 22 confirms that ministers can make regulations under this Act to make any provision which could be made by an Act of Parliament. The supposed limitation to this power, repeated throughout the Bill, is that the regulations are such that the minister ‘considers appropriate’ in connection with the Protocol, the broader Withdrawal Agreement or this legislation. This is anything but a limited and specific breach of the UK’s international commitments; it utterly traduces the Protocol. Moreover, the powers granted to ministers are remarkably broad. Powers in the same terms faced the most strenuous opposition on grounds of side-lining Parliament when they were included in the Internal Market Bill as proposed, and there is no reason to think that the House of Lords, in particular, will be any more receptive to these powers in this context.
Clause 15 of the Bill purports to protect the operation of the Protocol’s provisions on human rights and equality (Article 2), the Common Travel Area (Article 3) and North-South Co-operation (Article 11). Ministers do not have the power to add these provisions to the Bill’s stated exclusions from the operation of section 7A. The Protocol’s human rights and equality commitments rely upon the operation of Court of Justice jurisprudence which explains how the relevant EU law functions. Thus, when clause 14 of the Bill sets out broad exclusions to domestic courts drawing, within the terms Article 13 of the Protocol, on Court of Justice jurisprudence or general principles of EU law, it does so only with regard to excluded provisions. This would appear to be an attempt to limit the number of fights the Bill starts, and to insulate the UK Government from accusations that it is undermining these high profile (but hitherto uncontroversial) arrangements. But it is irreconcilable with clause 20, which asserts (with no stated protection for Article 2) that courts and tribunals are not bound by ‘any principles laid down, or any decisions made, on or after the day on which this section comes into force by the European Court’. The overriding effect of this general exclusion is remove the courts in Northern Ireland obligation to interpret the provisions of the Protocol ‘in conformity’ with relevant Court of Justice case law. The Bill claims to protect the Protocol’s human rights and equality provisions in one clause, but undermines their substantive operation in another.
The Bill’s explanatory notes contain a commitment that ‘the UK Government will write to the devolved administrations to seek consent to legislate in the normal manner’. This, of course, is a hollow commitment when Stormont is not functioning. And even if it was functioning, the track record of Brexit legislation establishes that the UK Government is willing to ignore the position of a clear majority of the Northern Ireland Assembly who have expressed their opposition to these terms. Clause 15, moreover, does not protect the operation of the Article 18 “Stormont lock” from being excluded from domestic law by ministers if there is a chance that majority support for the Protocol in the vote due in 2024 would embarrass the Government (not one of the permitted purposes, but they are so broadly drawn as to effectively allow for ministers to pursue that end under another pretext).
Which brings us to the negotiated settlement clause. Clause 19 acknowledges that a new agreement can be made between the UK and EU which modifies, supplements or replaces the Northern Ireland Protocol, in whole or part. In those circumstances ministers can make regulations to give effect to that Agreement. Furthermore, under clause 15, this can include turning back on the conduit pipe between the Protocol and domestic law. This whole spiralling crisis can be disappeared as swiftly as a bad dream in Dallas. But in UK constitutional terms, all of this is stage managed by the Government. Just as the UK Government has finally accepted more extensive trade treaty scrutiny arrangements in recent weeks, this Bill pointedly excepts any reworking of the Protocol from them. Parliament, under this Bill, will be giving ministers the power to immediately make regulations to give effect to such an Agreement without first jumping through processes like public consultations.
The costs of breaking the Protocol
The EU has a range of options open in reaction to the Bill. It can institute infringement proceedings before the Court of Justice of the European Union in light of the provisions at issue and adopt its own targeted responses in retaliation for the breach. It can also seek to propose further measures to address the problems it has identified with the Protocol. The problem for the EU, however, and ultimately for the UK Government, is that Brussels is unlikely to want to be seen to facilitating this mode of relations by the UK.
The costs of this Bill, however, extend beyond the EU’s immediate reaction. Johnson might command a large Commons majority, but this is less reliable after the scale of last week’s vote of no confidence. The Conservative parliamentary party is likely to become even more fractious if much of its time over the coming months is spent in a fight over the Protocol when there are so many issues of urgent concern. A Lords majority are all but certain to use its powers to delay proposals for a full parliamentary session, especially in light of the consequences for the UK’s international standing of its flouting of such commitments and the possibility that, in seeking to placate Unionism, Northern Ireland’s other parties will become alienated from power sharing.
This generates a considerable presentation problem for Johnson; the Bill must appear sufficiently far reaching to assuage the DUP and sections of his own back benches, but not so extreme as to galvanise parliamentary opposition and to provoke a severe response from the EU. Hence the disconnect between the UK Government’s expressed position that the Protocol ‘is clearly undermining the Belfast Good Friday Agreement’ and the Prime Minister’s insistence that these new proposals amount to ‘a relatively trivial set of adjustments in the grand scheme of things’. The UK Government is breaching its international commitments, but it would rather other people say that than admit this reality.
Back in December 2020, the Internal Market Bill threat to part of the Protocol was withdrawn following an Agreement in the EU-UK Joint Committee on how the Protocol would be implemented. In Brexit lore, only such tough actions yield results from the EU. And yet, the alternative of careful technocratic negotiation and full data exchange on goods movements by the UK remains a counter-factual scenario. Even after months of talks, there isn’t a clear public account of why the UK Government is rejecting the EU’s October 2021 proposals outright.
Picking fights with the EU energises Brexit’s most ardent supporters and bringing about this crisis point might thus be a way for the UK Government to sell an eventual compromise (they pushed as hard as possible to get changes). For the EU, having seen this before, this is not a pattern of engagement that it wants to encourage. Not only will Brussels perceive the risk that the UK Government will keep coming back for more, but why should it bail out Johnson with further compromises when it knows that his position is so weakened and it might soon have to deal with a successor?
The EU therefore appears to be biding its time; this legislation faces a long journey through Parliament (particularly in light of the likelihood that it will not pass the Lords without a year’s delay). It appears ready to recommence infringement proceedings against the UK and even to publish its own blueprint for Protocol reform. Any advance on the “express” channel and food and agriculture approach set out in the October 2021 proposals will take it very much into the “green/red” lane territory that the UK Government is discussing; the fabled landing zone. Johnson’s entire strategy is reliant on the EU not using the full range of reactions open to it in response to this threat on the basis that doing so would further destabilise Northern Ireland.
A bumpy landing, if a landing at all?
The risks in this approach are obvious. Too many actors need to accept contradictory messages at one time. The EU needs to watch the UK tear up an Agreement in front of its nose, but trust that Johnson is only doing what he is doing to bring the DUP back on board (that this legislation is all a bit of theatre before a compromise). The DUP, by contrast, have to accept that legislation so outlandish in its terms that it has no chance of making the statute book in the next 18 months without being significantly watered down, provides a basis for re-entering power sharing. They must be so enthralled by its scope that they ignore its unfeasibility.
Johnson’s weakness, moreover, encourages everyone else to manoeuvre around him. When it came to the “Stormont lock”, the main concession that Johnson gained from EU in 2019, Brussels had held off on offering such an arrangement to Theresa May when her own premiership appeared to be on its last legs. The Commission may have announced that a further package of reform proposals are coming, but they would have to be completely on board with Johnson’s choreography (and very confident in his position) to announce these plans ahead of the forthcoming by-elections.
Maybe some of the tensions which have built up in Northern Ireland around the Protocol will dissipate as a result of this Bill. Perhaps another compromise will be reached without it ever becoming law. But if it isn’t, and this legislation enters force in its current form, the prospects for EU-UK relations, for the stability of Northern Ireland, and for the executive dominance of the UK’s constitutional order will be invidious. And even in the best-case scenario, the current UK Government’s mode of engagement with any issue that involves Europe is set. We’re just waiting for the next crisis.