The NI Protocol Bill: Breakdown

The HMS Caroline, a de-commissioner light cruiser docked at Alexandra Dock, near Belfast Harbour

The Government's Northern Ireland Protocol Bill, introduced to the House by the Foreign Secretary, is a move to ameliorate the existing issues with the Northern Ireland Protocol, something the Bruges Group has spoken on in the past (see our Chairman, Barry Legg here). This comes amid previous widespread criticism from Unionists at the everyday practicality of the Northern Ireland Protocol and the need to change it.

Here is some of the context to these events:

• Back in February, the Northern Ireland Agriculture Minister, Edwin Poots MLA, instructed his Department to cease Sanitary and Phytosanitary (SPS) checks on agri-food in Northern Ireland, and on the same day the First Minister Paul Givan resigned – both in response to the Northern Ireland Protocol.
• Countless talks between Foreign Secretary Liz Truss and European Commission Vice-President Maroš Šefčovič had covered this topic and the ongoing issues being faced in Northern Ireland – in particular, the internal border within the UK
• Former Brexit Minister Lord Frost CMG argued that the NI Protocol undermined the Good Friday Agreement (GFA), leaving it 'on life support'.

The Government's Bill seeks to resolve many of these issues with the protocols – but has faced criticism from the EU, which claims it is a breach of international law. The government's legal position is that:

1. The Northern Ireland Protocol is not protecting the commitments made by the Good Friday Agreement – and the government's bill is in line with the GFA. Therefore, the legislation is needed to support the GFA's objectives.

1. The Government's previous 2021 Command Paper already cited that there was "both diversion of trade and serious societal and economic difficulties.

1. The Northern Ireland Protocol's Article 16 already permits the one of the parties to take action if the Protocol causes "serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade". This was to be limited – and reduce disruption as much as possible.

What does the Bill do?

The government's own press release says it focuses on four areas, including easing the flow of goods (checks/paperwork reduction), making space for EU/UK regulations to diverge in the future, removing the role of the European Court of Justice in enforcing the protocol, and strengthening the Union.

• Irish sea ports: A 'green lane', which will create minimal checks and paperwork for goods travelling from Great Britain to Northern Ireland, and will stay in NI. A 'red channel' would be created for trucks taking goods to the Republic of Ireland, where they'd then face 'red channel' checks.
• The ECJ's role in enforcing the protocol would also be ended: A court 'cannot refer any matter to the European Court', but Ministers may do so if it touches EU law. This would also remove the EU from making decisions over state aid and value added tax.
• Eliminate taxation/duties differences: The Bill will also permit the Treasury to act to eliminate differences in rates of tax between Northern Ireland and the rest of the UK.
• Dual regulatory regime: Giving businesses freedom of choice to place their goods on the market under UK rules or EU rules. Firms that choose the EU regulatory route would be bound by provisions of the Withdrawal Agreement.
• Ministers Empowered: Clause 15, likely the most controversial of them all, will permit Ministers to exclude provisions of the Protocol for a wide range of reasons (ranging from flow of trade to giving effect to other international agreements), with exception to Articles 2, 3, and 11. They relate to individual rights, common travel areas, and North-South co-operation. This retains that element of stability on both ends, reaffirming the core principles of the Good Friday Agreement and the aspirations of the protocol.

The FT cites Downing Street sources, that say that "changing the law would provide a more "stable" solution than simply activating Article 16".

Unionists in Northern Ireland are giving positive signals, after citing their dissatisfaction with the protocol in the past. Lord Dodds of Duncairn, a DUP peer and former DUP Deputy Leader, tweeted that it was "time to get on with the legislation". Sir Jeffrey Donaldson MP, the DUP Leader said he supported the government taking actions – but that the DUP would "consider these proposals against our seven tests".

The Irish government was highly critical of this, with the Irish Foreign Minister Simon Coveney TD tweeting that this was part of a strategy of "provocation over partnership". Republicans in Northern Ireland criticised the Government, with Sinn Fein Vice President Michelle O'Neill MLA being quoted criticising the Prime Minister for "bringing economic uncertainty", adding "He is jeopardising jobs, local jobs".

Some pro-Brexit voices who have previously spoken out against the protocol also criticised the Government for not going far enough. Ben Habib, Chairman of Brexit-Watch.org and a former Brexit Party MEP, came to the conclusion that "Everything is to be done at some later unspecified date subject to new regulations" and that "the Bill does not in any way change the Protocol at this point in time" in a thread on Twitter.

The legislation here sets out, in greater detail, the UK Government's proposed solutions to the impasse in Northern Ireland – retaining key areas of stability for the time being and, if effective, can avoid a chaotic transition both in the long and short term. If given the adequate supporting infrastructure, the green and red channels, the trusted trader scheme, as well as the dual options, can help create a prosperous environment in Northern Ireland. However, the Northern Ireland Protocol fails to manage expectations and the government has not been specific with how infrastructure will be created to support both the dual regulatory programme and the trusted trader scheme - crucial to improving the efficiency of the flow of goods and building up trust amongst both communities in Northern Ireland. Moreover, while the ECJ's role in enforcing the protocol is removed, it still provides the potential for decisions to be deferred to the European Court of Justice, were it to be considered necessary by a court/tribunal in the UK - this has the potential to make the removal of the ECJ's role ineffective and sometimes null. Both of these points, in particular, should be noted, as creating a more efficient system for suppliers and consumers in Northern Ireland, and bringing in clarity - for the sake of stability - are both the bedrock to the success of the Bill and the Union.