The Mechanics of the Northern Ireland Protocol Bill
Despite there still being continued confusion over the legal basis for the proposed legislation, the government has now published the Northern Ireland Protocol Bill that looks to overhaul the Protocol and, in the process, potentially breach international law.
We don’t really learn too much more about the shaky legal foundation for the Bill but there is a statement from the government that talks about the doctrine of ‘necessity’ and how it is to be exercised in this context. The statement identifies a couple of current issues with the implementation of the Northern Ireland Protocol, namely the imbalance that is caused and the socio-political tensions within communities in the region.
There then follows an admission that invoking ‘necessity’ is an unusual and exceptional move. The government states that it does not do this lightly but, given the issues described above, this legislation is the only choice and so the move can be justified under international law.
You probably don’t need me to tell you this but, for the avoidance of doubt, that is all bewildering nonsense from a legal point of view. The reality is that the Johnson administration has now decided that it does not like the practical reality of the agreement that the Johnson administration negotiated and it is now seeking a way to bluster its way out of the situation without losing face.
Steven Barrett is a barrister who has consistently written to defend the government on the most spurious legal grounds and, once again, his attempt to defend the changes to the Protocol have been roundly condemned by other legal minds on Twitter. It is client journalism at its worse when appeals are made to the law to defend some action that is clearly unlawful.
In any case the Bill is an interesting legal framework in and of itself. After a brief introduction in clause 1, clause 2 is probably the most important provision in the Bill because it tells us that any of the ‘excluded provisions’ of the Protocol will no longer apply under domestic law because their current legal basis for doing so (section 7A of the European Union (Withdrawal) Act 2018) is stripped away in respect of those ‘excluded provisions’.
This is where the breach of international law occurs. Section 7A implements Article 4 of the Withdrawal Agreement which states:
“The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.”
The Protocol is a part of the Agreement and clearly the successful passage of this Bill would mean that certain elements of the Agreement would no longer produce ‘legal effects’ in the UK.
If clause 2 is the trigger then much of the rest of the Bill is concerned with the targets, i.e. the ‘excluded provisions’ that the government wants to target. Here are the highlights:
Much of Article 5 of the Protocol is excluded. This deals with applying customs duties on goods entering Northern Ireland that are currently deemed to be ‘at risk’ of entering the EU.
Article 10, which prohibits state aid (where the UK uses public money in an anti-competitive manner to help businesses in Northern Ireland), is excluded.
Parts of Article 12 are excluded. This is the provision that deals with the implementation of the Protocol.
This might not sound like too much but it really undermines the agreement that both sides signed. Furthermore, clause 16 of the Bill allows ministers to use secondary legislation to add to the list of ‘excluded provisions’. There are also similar powers to make new domestic law that would replace any of the provisions that have been excluded.
Mechanically the Bill ‘works’ insofar as it sets out the process for what the government wants to achieve but that doesn’t change the dodgy legal basis on which this entire enterprise is founded. That has always been the issue and, as this Bill passes through Parliament, is the question that will be asked on both sides of the House.
No podcast this week because I have astonishingly caught up with the caseload of the Supreme Court. Instead I had a chance to work on my video content and published a new video on some of the recent updates in the area of family law. This video is free to view but the full course is available on Gumroad for those studying on a family law module.
Fortunately the Supreme Court is due to hand down three judgments on Wednesday so it should be a return to business as usual next week.
Make a difference today,
Marcus