Sir William Cash MP
Rt Hon David Jones MP
Martin Howe QC
Barnabas Reynolds
The constitutional and legal position of the United Kingdom in relation to the Protocol on Ireland and Northern Ireland (the "Protocol") is founded on Section 38 of the EU (Withdrawal Agreement) Act 2020 ("EUWAA 2020"). There are also pertinent issues relating to international law on which the Attorney General has issued her memorandum (Northern Ireland Protocol Bill: UK government legal position).
OVERVIEW
The Protocol was originally conceived in the early part of the negotiations for leaving the European Union following the Referendum of 23rd June 2016. This referendum was authorised by a sovereign Act of Parliament and provided the basis for our leaving the European Union. This was followed by the EU (Withdrawal) Act 2018 ("EUWA 2018"), then followed by the rejection by Parliament of the draft Withdrawal Agreement itself on three separate occasions in 2019: 15th January, 12th March and 29th March. There was then a change in policy and a new Government which negotiated a revised Withdrawal Agreement and the Protocol (in its current form) in October 2019, accompanied by a statement by the Prime Minister on Saturday 19th October. After the General Election in December 2019 the new EU (Withdrawal Agreement) Bill was introduced, which included what became Section 38 on Parliamentary Sovereignty which included paragraph (2)(b) expressly stating Parliament's right to override the provision elsewhere in the Bill giving effect in UK to the UK-EU Withdrawal Agreement 2020 including the Protocol. This Bill gained Royal Assent on 23rd January 2020 with Clause 38 unamended.
As a matter of UK domestic law, Parliament unequivocally has the power to override the Withdrawal Agreement including the Protocol.
Overall
1. There now follows a description of the content of the Northern Ireland Protocol Bill and the conclusions of the legal Star Chamber.
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2. When the UK-EU Trade and Cooperation Agreement 2020 was being considered by the House of Commons, the previous legal Star Chamber made clear in its analysis and commentary that the issue of the Protocol was "unfinished business".
3. The Government bases its approach to amending the effect, within the UK, of the Protocol and the Withdrawal Agreement, in UK domestic law on Section 38 and on the underlying doctrine of Parliamentary supremacy, and on the international law doctrine of necessity, and on recognition of the fact that the NIP is 'without prejudice' to the Belfast (Good Friday) Agreement.
4. The Government has chosen not to use Article 16 of the Protocol at this point but has reserved the right to do so in future.
5. The Bill seeks to modify the effects of the Protocol, as interpreted and applied, so as to fulfil the Protocol's purposes of protecting both the UK's and the EU's Internal Markets, respecting the territorial integrity and essential State functions of the UK, and safeguarding all dimensions of the Belfast (Good Friday) Agreement.
6. The Bill provides in domestic law for the overriding of "specified provision" of the Protocol (clause 1(a)), and allows Ministers to make regulations making alternative provision (clause 1(b)). The direct reception of EU law into the UK, including in respect of Northern Ireland, under Section 7A(2) of the European Union (Withdrawal) Act 2018 (the "EUWA 2018") (as inserted by the EUWAA 2020) is suspended for any provision of the Protocol and Withdrawal Agreement which is designated as "excluded provision" (clause 2).
7. The Protocol is not overridden or replaced entirely. Rather, the Bill provides for aspects (albeit substantial aspects) of the Protocol to be adjusted, by first removing them as a matter of UK domestic law and then empowering a Minister to make regulations which potentially reinstate certain effects of those provisions or introduce alternative approaches.
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East-West trade within the UK Internal Market, and Protection of the EU Single Market
8. Clause 4 of the Bill concerns the free movement of goods from GB to Northern Ireland, within the UK Internal Market, and from Northern Ireland to other parts of the UK or any other place outside the EU (clause 4).
9. Article 5(1) (duties) and Article 5(2) (the 'at risk' concept) of the Protocol are excluded entirely. Article 5(3) (EU customs legislation) and 5(4) (other EU law listed in Annex 2 to the Protocol relating to goods) are excluded but only insofar as they relate to UK or non-EU destined goods. As such, the Bill does not remove the so-called Irish Sea trade border. Rather it limits its effect to goods actually destined for the EU.
10. In place of the excluded provisions, and to ensure that the remaining trade in goods provisions of the Protocol left to be enforced on the Irish sea border can operate, very broad discretionary powers are given to a Minister to make new law by regulation. Regulations may, inter alia, restrict or prohibit the movement of UK or non-EU destined goods into the EU (clause 5(3)(b)), and provide for customs matters (clause 6). The 'consider appropriate' threshold for use of this power by Ministers is broad and low, granting the Government of the day a high degree of discretion.
11. Regulations made under the Bill can make any provision that could be made by Act of Parliament (clause 22). Further, the effect of clause 2 is to allow regulations under the Bill as well as the Bill itself to override provisions of the Protocol and Withdrawal Agreement by amending section 7A of the EUWA 2018 which would otherwise give them direct effect and supremacy.
12. Clause 22(3) provides that no north/south border infrastructure or checks or controls on the border can be created or facilitated under such regulations. Avoiding border infrastructure on the north/south border is important. It is important that this is interpreted to relate only to physical infrastructure, checks and controls at the border, rather than the legal point at which a control takes effect, so as to permit a mutual
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enforcement approach to be pursued under regulation to govern the export across the north-south border of e.g. goods in NI produced to UK standards.
13. In principle, these provisions should allow for GB goods to flow freely into and out of NI provided they are intended for use or final consumption in NI, GB or a third country outside the EU. The Bill deals with SPS matters in the same way as with other goods.
14. The combined effect of these provisions is to remove customs and regulatory controls at the Irish Sea border for GB-NI trade, but only insofar as the goods are destined to remain within Northern Ireland. As mentioned, the full effect of the Protocol – and therefore the Irish Sea border - is retained with respect to trade in goods GB-NI that are moving to the EU.
Dual regulation
15. The Bill provides for dual regulation and dual circulation of goods in NI. It allows for goods to be manufactured in NI and circulated in NI in compliance with either UK or EU standards (clause 7). The intention appears to be that goods produced in Northern Ireland to EU standards should be capable of crossing the north-south land border without harming the EU's single market.
16. As is the case under the Protocol now, such goods may also fall within the EU's rules of origin obligations under the WTO Agreement on Rules of Origin, although this is a matter for the EU, and the rules of origin provisions of individual EU FTAs may be different and will require examination on a case by case basis. The Minister is empowered to make regulations about UK-regulated goods in NI (clause 9). The Internal Market Act 2020 means that EU standard goods produced in NI will circulate within the UK as a whole.
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Other excluded Protocol provisions
17. The Bill removes the EU's State aid provisions (clause 12). This follows naturally from the 'level playing field' provisions of the TCA and the UK's Subsidy Control Act 2022 which together made the use of the EU's State aid rules in Northern Ireland redundant.
18. However, it also allows a Minister to make regulations in relation to State aid under the Protocol. It is unclear what these might be.
19. The Bill also removes the role of the Court of Justice of the European Union (CJEU) and EU executive bodies in interpreting and applying the provisions of the Protocol (clause 13). This jurisdiction is ousted entirely and not just in respect of excluded provisions, on the basis presumably that necessity requires this, and any durable solution cannot have a foreign court deciding on the meaning of provisions. While the Bill removes any ability for a UK court to make a reference to the CJEU, it also empowers the Minister to reintroduce such a mechanism via regulation (clause 20(4)).
20. The Bill allows Ministers to change further provisions of the Protocol for permitted purposes, which include matters such as safeguarding social or economic stability in NI; ensuring the effective flow of trade between NI and another part of the UK; and safeguarding the territorial or constitutional integrity of the United Kingdom. However, it protects the provisions of the Protocol relating to the rights of individuals, the common travel area and north-south cooperation (which pre-dated or did not arise from the EU in any event).
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CONCLUSIONS
The Legal Star Chamber has come to the conclusion that it approves of the Northern Ireland Protocol Bill because it achieves the constitutional objective of reaffirming Northern Ireland as part of the constitutional territory of the United Kingdom and its sovereignty. It properly reinforces the Belfast (Good Friday) Agreement and the Union.
Important aspects of the Bill are dependent upon implementation by Statutory Instruments, but assuming those SIs are introduced in accordance with the government's stated intentions, the Bill will reaffirm in substance the elements of the Articles of Union of 1800 which were held by Keegan LCJ in the Allister case to have been "subjugated" by the Protocol as given effect by the EUWAA 2020. Specifically:
(1) The exclusion by the Bill of Arts.5(1) and 5(2) of the Protocol and the exclusion of Arts.5(3) and 5(4) for non-EU destined goods should remove the objectionable checks and substantive barriers which inhibit the movement of goods across the Irish Sea within the UK's internal market;
(2) The dual regulatory scheme of clause 7 coupled with the partial exclusion of the Protocol in clause 8 should make compliance with foreign (EU) goods laws a matter of choice within Northern Ireland, so restoring the principle that NI citizens should be "on the same footing in respect of trade … and in all treaties with foreign powers" as citizens of GB. This is reinforced by the exclusion of direct ECJ jurisdiction under the Protocol in clause 13.
The Bill does not "tear up" the Protocol since it will preserve its provisions in relation to "red channel" goods and also allows for the protection of the EU's single market against the movement across the Irish land border of goods on which the correct EU tariffs have not been paid or which do not comply with EU regulatory law. The Bill, with justification, rebalances the relationship between the United Kingdom and the European Union in order to preserve the foundations of the United Kingdom's constitutional order while still protecting the European Union's legitimate interests. The Bill has been made necessary by the European Union's intransigence in respect of the negotiating mandate, and given
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the failure of the negotiations between the European Union and Her Majesty's Government, attributable to the European Union's unjustifiable failure to recognise that the United Kingdom has left the European Union in pursuance of a referendum, authorised by a sovereign Act of Parliament and endorsed by the General Election in December 2019. Appendix 1 draws attention to some of the precedents and matters which are of interest in relation to matters of international law which have been raised and which indicate occasions when, in the sovereign national interests of other jurisdictions, some of whom are Member States of the European Union and the European Union itself, there have been inconsistencies in the field of international law.
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APPENDIX 1 - EXAMPLES INCLUDE:
• Breaches by Member States in respect of the European Union's Stability and Growth Pact (SGP)
• European Union's illegal subsidies to Airbus under WTO
• The European Union itself in respect of the EU-Morocco Fisheries Partnership Agreement
• European Union bailouts over the past 10 years
• France's ban on importation of British beef in the late 1990s
• The sinking in 1985 of the Rainbow Warrior by France in New Zealand
• In 1937, the Irish constitution was created in significant breach of specific terms of the 1921 Anglo-Irish Treaty
