The Northern Ireland Protocol Bill – politics and law

Update – Windsor Framework

This article was originally published on 17 June 2022 and was subsequently updated on 8 March 2023.

On 27 February 2023, the UK Government announced in a document entitled HMG Legal Position: The Windsor Framework (see link here) that:

"As envisaged by the UK Government in June 2022, given the terms of the Windsor Framework and the clear availability of a durable negotiated solution, there would now be no legal justification for enacting the Northern Ireland Protocol Bill. With the Windsor Framework, implemented as envisaged, the Bill will no longer be the ‘only way’ in which the issues caused by the previous Protocol arrangements can be resolved. This statement and this assessment is without prejudice to any future situation which may arise, or the UK’s rights under international law to protect its interests."

Politics

The introduction  of the Northern Ireland Protocol Bill into parliament is the latest step in the long-running debate over the operation of the Northern Ireland Protocol (formally known as the Protocol on Ireland / Northern Ireland) which forms part of the Withdrawal Agreement between the UK and the EU.

Since the UK left the EU, Northern Ireland's economy has been a sort of Schrödinger's Cat in its relationship with each of the UK and the EU: simultaneously aligned with the EU for the purposes of its trade with the Republic of Ireland but apart from the EU in its trade with the rest of the UK.

Supporters of the Protocol point to economic data (as reported) suggesting that the Northern Ireland economy (measured by its GDP) rose above its pre-pandemic level in Q1/22 as evidence of the Protocol's success.

Detractors point to the dangers to the Union posed by differential rates of economic growth within the UK and reinforced by the strong performance of nationalist parties, notably Sinn Féin, in recent local government elections in Northern Ireland.

It is the latter concern which appears to have persuaded the unionist DUP group of politicians to refuse to elect a Speaker to the Northern Ireland Assembly until the UK (Westminster) government introduces legislation to address the perceived shortcomings of the Protocol.

As with all tectonic shifts, the political ones over the future of the UK - both internally and on the world stage - can occur at any moment. The fault lines in this case are effectively those of the original Brexit debates with many of the same actors.

But two new elements have appeared in the political landscape since the Foreign Secretary made her statement on 17 May 2022 in which she indicated her intention to bring in the Bill.

The first is the narrowness of the Prime Minister's win in the recent confidence vote of Conservative MPs and the second is the possible defeat of Conservative candidates in the forthcoming (23 June) parliamentary by-elections in Tiverton & Honiton in Devon and Wakefield in West Yorkshire.

Political events, both national and international, could yet delay the progress of the Bill and also cause political consensus to fracture and potentially unsettle international investors further.  The value of sterling measured against a basket of other currencies has fallen some 14% since the referendum.

What does the Bill do?

The Bill limits the application of the Protocol in particular areas, such as the movement of goods between Northern Ireland and the rest of the UK (clauses 4 to 6).

The Bill gives ministers of the Crown wide powers to amend the domestic law which implements the Protocol.  Most of the powers are embedded in particular clauses but the Bill also creates a wide overarching power.  Clause 18(1) allows a minister to "engage in conduct in relation to any matter" dealt with in the Protocol if the minister considers it appropriate to do so.

The Bill does not define "conduct" but the explanatory notes which accompany it refer, in paragraph 96, to "sub-legislative activity, such as producing guidance".  The production of guidance is a relatively innocuous example and the word "conduct" encompasses a multitude of other possible actions.  The width of these so-called "Henry VIII" powers are likely to be the subject of much parliamentary debate.

No less importantly, the Bill recalibrates the status of the Protocol as a matter of domestic law by making technical amendments to the European Union (Withdrawal) Act 2018 - the keystone act which creates the concept of retained EU law as a separate and distinct component within domestic law.

Law

Much of the public rhetoric over the Bill has focused on its impact on the Protocol.  Commentators have described the Bill as "ripping up" or "rewriting" the Protocol.  Those phrases require unpacking.

The manner in which countries give effect to international treaties in domestic law differs markedly and is sometimes described as a clash between 'dualism' and 'monism'. 

• Dualism emphasises that international and national law are separate and distinct.  Rights and obligations created by treaties do not become part of domestic law unless and until they are expressly absorbed into it.  It is this system which applies in the UK.

• Monism, on the other hand, considers that national and international law form part of one coherent body of law and that rights and obligations contained in treaties are enforceable in domestic courts without more ado.

An example of the way in which the UK system operates is the European Union (Withdrawal Agreement) Act 2020.  This gives effect, in domestic law, to the provisions of the Withdrawal Agreement.

The counterpoint is that while parliament can amend domestic legislation, it cannot amend a treaty.  That is a prerogative right exercisable by the Crown (in this case the government, acting on behalf of the Crown).  An amendment to the Withdrawal Agreement can only be agreed between the UK and the EU and, from this perspective at least, the Bill has a limited impact on the Protocol.

But that is not to say the Bill is irrelevant to the Protocol.  Article 5 of the Withdrawal Agreement contains an obligation on the EU and the UK, "in full mutual respect and good faith", to assist each other in carrying out the tasks which flow from the agreement.  Is the Bill, in itself, evidence that the UK is not acting in good faith?

The European Commission believes so.  Its Vice-President, Maroš Šefčovič, announced on 13 June 2022 that the Commission was considering unfreezing the infringement proceedings which it commenced against the UK government in March 2021, but subsequently stayed, and was considering launching new proceedings triggered by the introduction of the Bill into parliament.

Media reports circulating on 15 June 2022 suggested that a decision had been taken. Such reports are evidence that the Commission regards the Protocol as a lever to ensure compliance by the UK with the terms of the Withdrawal Agreement. The Bill may therefore have wider implications for both the Withdrawal Agreement and the Trade and Cooperation Agreement between the UK and the EU and which may be relevant to inward investment into the UK. Whatever the rights and wrongs of the international debate, it is difficult to deny that the Protocol is having an effect on trade between Northern Ireland and the rest of the United Kingdom.

And ... by coincidence?

On the day on which the Bill was presented, the European Scrutiny Committee of the House of Commons (which is chaired by the Brexiteer Sir William Cash MP) launched an enquiry entitled Regulating After Brexit.  One of the issues it wishes to consider is:

What restrictions are there on the UK's regulatory autonomy as a result of commitments in the UK/EU Withdrawal Agreement and the UK/EU Trade and Cooperation Agreement?

No doubt forthcoming events involving the Bill will loom large in the Committee's deliberations.