Colin Murray, Reader in Public Law, Newcastle Law School
Photo credit: Dom0803, via Wikimedia Commons
In 2020, Brandon Lewis acknowledged that the UK’s Internal Market Bill would contravene the Withdrawal Agreement, albeit in a limited capacity. However, regarding the recent Northern Ireland Protocol Bill, Lewis insists that it will not violate international law. This assertion is debatable, as the Bill’s implications are vast.
The Protocol and Brexit
The UK government argues that the Protocol lacks cross-community support within Northern Ireland and cannot continue as is. This perspective disregards the fact that Brexit itself did not have widespread approval and that the Protocol’s purpose is to alleviate the impact of Brexit on Northern Ireland. The UK government’s previous defense of the Protocol’s compliance with the 1998 Agreement further weakens their argument.
Another claim is that the EU’s strict adherence to trade regulations, not the Protocol itself, has rendered it unworkable. This stance, presented in the Bill’s legal documentation, is difficult to sustain given the EU’s flexibility in adapting the Protocol’s implementation. The challenges faced are largely attributed to the limitations of the Trade and Co-operation Agreement and the UK’s choice to diverge from EU standards.
Undoubtedly, Brexit has led to economic disruptions in Northern Ireland, and the Protocol’s operation could be enhanced. Nevertheless, there is little publicly available data to support the supposed negative impacts of the Protocol specifically. Addressing these concerns through existing mechanisms within the Protocol, such as Article 16, would be more appropriate than abandoning obligations. The UK government’s invocation of the doctrine of necessity is questionable given its role in the current situation and its failure to utilize available remedies.
Although repeatedly considered, the UK government has consistently backed away from triggering Article 16. This reluctance might be linked to various events and the realization that Article 16’s application is limited and contingent upon proportionality. The UK government seeks to revise the Protocol to accommodate its divergence from EU standards while using the 1998 Agreement as a superficial justification.
The Democratic Unionist Party (DUP), dissatisfied with the UK government’s inability to trigger Article 16, collapsed the Northern Ireland Executive and has since boycotted power-sharing. Despite the new Bill’s provisions seemingly addressing their concerns, the DUP remains skeptical.
The Protocol Bill
The Bill’s extensive scope and reliance on ministerial discretion raise concerns about its passage in its current form. By excluding significant portions of the Protocol from the operation of Section 7A of the European Union (Withdrawal) Act 2018, the Bill effectively severs the link between these provisions and domestic law, though not absolving the UK from international obligations.
The Bill grants ministers broad powers to enact domestic laws replacing various aspects of the Protocol, including customs, goods regulation, state aid, and the Court of Justice of the European Union’s role. These powers are subject to minimal constraints, with ministerial discretion being the primary limitation. This effectively dismantles the Protocol and raises concerns about parliamentary oversight, similar to reactions to the Internal Market Bill.
Although the Bill seemingly safeguards provisions related to human rights, equality, the Common Travel Area, and North-South Cooperation, contradictions arise in its implementation. Clause 14’s exclusion of domestic courts from relying on Court of Justice jurisprudence undermines the Protocol’s human rights and equality provisions, despite their supposed protection under Clause 15.
The Bill’s commitment to seeking consent from devolved administrations rings hollow given the current political climate in Northern Ireland. The UK government’s history of disregarding the Northern Ireland Assembly’s opposition to Brexit-related legislation further weakens this pledge.
A negotiated settlement clause allows for modifications or replacements to the Protocol through a new UK-EU agreement. Notably, this process grants the UK government significant control, bypassing parliamentary scrutiny procedures typically applied to trade agreements.
The Costs of Breaking the Protocol
The EU has several options at its disposal, including infringement proceedings, retaliatory measures, and proposing further Protocol revisions. However, the EU is unlikely to endorse the UK’s approach. The Bill’s impact extends beyond the EU’s immediate response, potentially straining parliamentary unity within the UK and harming the nation’s international reputation. This presents a dilemma for Johnson, who must balance appeasement of the DUP with the risk of escalating tensions.
Threats Work?
Previous instances, such as the withdrawal of certain Internal Market Bill provisions in 2020, might suggest that a confrontational approach yields results. However, the alternative of meticulous negotiation and transparent data exchange remains unexplored. The rationale behind the UK’s rejection of the EU’s 2021 proposals remains unclear. While escalating tensions with the EU might be a tactic to appease certain factions within the UK, it is unlikely to be sustainable in the long run. The EU is disinclined to repeatedly rescue a weakened Johnson government, especially with the possibility of his successor.
The EU seems to be employing a waiting game, anticipating a protracted parliamentary process for the Bill. They appear prepared to resume infringement proceedings and potentially present their own Protocol reform plan. Any concessions beyond their 2021 proposals would play into the UK’s strategy. Johnson’s approach hinges on the assumption that the EU will prioritize stability in Northern Ireland over a robust response.
A Bumpy Landing, if a Landing at All?
This approach carries significant risks. It relies on various stakeholders accepting contradictory messages and trusting Johnson’s motives. The EU must reconcile the UK’s breach of an international agreement with the hope that it paves the way for a compromise. The DUP, meanwhile, must place faith in a potentially unfeasible piece of legislation.
Johnson’s political vulnerability further complicates the situation, potentially emboldening other actors to exploit his weakness. The EU, for example, might be hesitant to offer concessions while Johnson’s leadership remains uncertain.
The Bill might alleviate some tensions surrounding the Protocol, potentially leading to a compromise without it being enacted. However, if it becomes law in its current form, the consequences for EU-UK relations, Northern Ireland’s stability, and the UK’s constitutional order could be severe. Even if a compromise is reached, the UK government’s approach to European affairs sets a concerning precedent. Another crisis appears inevitable.