The Northern Ireland Protocol Bill 2022-23 was introduced in the House of Commons on 13 June 2022. The second reading will take place on 27 June.
The Bill, and its Explanatory Notes, can be found on the UK Parliament website.
The Northern Ireland Protocol (the Protocol) is part of the UK’s Withdrawal Agreement with the EU and sets out special arrangements for Northern Ireland, so the island of Ireland remains border-free.
The Bill empowers ministers to disapply parts of the Protocol and relevant parts of the Withdrawal Agreement (WA) in UK law.
Why is the Government introducing this Bill?
The Foreign Secretary, Liz Truss, says the Government’s preference remains to reach a negotiated outcome with the EU, but that the EU’s current proposals are not able to address the Government’s “fundamental concerns” over the Protocol.
In a policy paper published alongside the Bill, the Government outlined these concerns. They include “trade disruption and diversion, significant costs and bureaucracy for traders and areas where people in Northern Ireland have not been able to benefit fully from the same advantages as those in the rest of the United Kingdom”.
The paper says, “this has contributed to a deep sense of concern that the links between Great Britain and Northern Ireland have been undermined”.
What does the Bill do?
The Withdrawal Agreement/Protocol in domestic law
Currently, the Withdrawal Agreement is given direct effect and supremacy in UK domestic law by Section 7A of the EU (Withdrawal) Act 2018. Section 8C of that Act also gives ministers powers to ensure effective implementation of the Protocol.
Exclusion of parts of the WA/Protocol
This Bill empowers ministers to make parts of the Protocol and related parts of the Withdrawal Agreement “excluded provision”, stopping their direct effect in UK law.
Clause 2 does by partially disapplying section 7A(2) of the 2018 Act, limiting the scope of direct effect of the Withdrawal Agreement. Clause 2 also qualifies the effect of section 7A(3) of the 2018 Act, meaning that the Northern Ireland Protocol Act 2022, and anything done under it, would take priority, in UK law, over the Withdrawal Agreement.
This means UK courts will no longer be able to recognise and give effect to those “excluded” provisions by relying directly on the Withdrawal Agreement.
The following clauses of the Bill make parts of the Protocol “excluded provision”:
- Clause 4: Movement of goods and customs – excludes various parts of Article 5 of the Protocol concerned with customs and the movement of goods between the UK and Northern Ireland. This will allow the UK to set up a “green lane” for goods, so they can avoid customs and Sanitary and Phytosanitary (SPS) checks (checks on agri-food, plants and animals).
- Clauses 8: Regulation of goods – excludes parts of Article 5 and Annex 2 of the Protocol that relate to the regulation of goods. This will allow the UK to set up a “dual regulatory regime” in Northern Ireland, enabling businesses to choose whether to follow UK or EU rules on manufactured goods, medicines and agri-food goods.
- Clause 12: Subsidy control – excludes Article 10 of the Protocol and related Annexes 5 and 6 on State Aid/subsidy control. This will allow Northern Ireland to follow the UK’s subsidy regime and not the EU’s State Aid rules.
CJEU jurisdiction and dispute mechanisms
An important aspect of the Withdrawal Agreement is that it includes mechanisms for the enforcement both of the Agreement generally and the Protocol in particular. This includes various supervisory and dispute roles for EU institutions and a role for the Court of Justice of the European Union (CJEU) in interpreting and applying EU law where it is incorporated into the Protocol and other parts of the Withdrawal Agreement.
Clause 13 of the Bill excludes any provision of the Withdrawal Agreement that would give the CJEU a role in enforcing the Protocol and its related provisions. It is re-enforced by clause 20 of the Bill, which removes the “binding” status of CJEU case law in relation to the Protocol and its related provisions, and prevents references being made to the CJEU (despite this being a requirement of the Protocol).
Clause 14 of the Bill also disapplies the Withdrawal Agreement dispute settlement process more broadly in relation to parts of the Protocol disapplied by the legislation.
Power to exclude further parts of the Protocol/Withdrawal Agreement
Clauses 15-16 allow ministers to “exclude” further provisions of the Protocol/Withdrawal Agreement, and to make new laws to implement these changes. They can also be used to modify the effects of excluded provisions, and to make parts of the Protocol/Withdrawal Agreement no longer excluded.
Clause 15 defines several “permitted purposes” for which ministers may use the power to “exclude” other provision. The purposes in question are loosely defined and include “safeguarding social or economic stability in Northern Ireland” and “safeguarding the territorial or constitutional integrity of the United Kingdom”.
Parts of Protocol protected from being excluded
Subsection 15(3) states there are three sections of the Protocol to which ministers are barred from making “additional excluded provisions”:
- Article 2 (rights of individuals);
- Article 3 (Common Travel Area); and
- Article 11 (other areas of North-South co-operation).
The democratic consent process set out in Article 18 of the Protocol is not protected in the same way.
VAT and excise
Article 8 of the Protocol which covers VAT and excise and ensures the EU’s VAT laws apply to Northern Ireland, is not an excluded provision. But clause 17 allows ministers to introduce regulations to “make any provision” about VAT, excise duty or any other tax which ministers “consider appropriate in connection with the Northern Ireland Protocol”.
Questions over breaking of international law
The Withdrawal Agreement is an international treaty between the EU and the UK.
Article 4 of the Withdrawal Agreement requires the UK to ensure that directly applicable provisions of the treaty (and anything done under it) are given “the same legal effects” in UK law as they would have in EU law and in the law of Member States. Article 5 of the Withdrawal Agreement, on good faith, states the EU and UK will faithfully enact the measures to fulfil their obligations arising from the Agreement.
The Vienna Convention on the Law of Treaties (VCLT), governs the creation, termination, interpretation, and violations of treaties, between states, but it is applicable to the Withdrawal Agreement (a treaty between a state – the UK- and an international organisation – the EU).
Under the VCLT, and customary international law, states are under a general obligation to abide by their agreements in good faith according to the principle of pacta sunt servanda (agreements must be kept, see Article 26 VCLT). Nor can states “invoke the provisions of its internal law as justification for its failure to perform a treaty” (Article 27 VCLT).
Government legal position and doctrine of necessity
The Government concedes in its legal position paper on the Bill that passing this legislation will amount to a “non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol”.
However, the Government argues it can justify its approach in international law under the “doctrine of necessity” a concept in customary international law.
In its legal position paper, the Government states the strain upon institutions in Northern Ireland, and more generally on socio-political conditions, has reached the point where it has no other way of safeguarding the essential interests at stake than through the adoption of the Bill, and that there is clear evidence of a state of necessity to which the Government must respond to. It argues that the legislation is currently the only way to alleviate the socio-political conditions, while continuing to support the Protocol’s objectives, including supporting North-South trade and cooperation, and the interests of both the EU and the UK.
The doctrine of necessity is one of a limited number of “circumstances precluding wrongfulness” – in other words, a legal defence that permits an otherwise unlawful breach of international law. The doctrine of necessity is narrow and limited, and can only apply in very exceptional circumstances.
Most legal commentators disagree with the Government that the current situation in Northern Ireland is so exceptional to warrant the defence of necessity, and point to other remedies such as using the safeguard measures found in Article 16 of the Protocol.
What has the reaction been?
European Union
After the Bill was published on 15 June, the European Commission announced it was moving forward with the legal action against the UK it first launched in March 2021. The Commission had paused these infringement proceedings in July 2021, while it pursued negotiations with the UK. The Commission also announced it was launching two new infringement proceedings against the UK for not supplying the EU with trade statistics data for Northern Ireland, as required under the Protocol, and for not applying the EU’s SPS rules for goods entering Northern Ireland.
In addition, the Commission published two new position papers on customs and SPS rules, that gave further details of its proposed solutions to ease these checks in addition to the non-papers that it had published in October 2021.
Northern Ireland
Democratic Unionist Party (DUP) leader Sir Jeffrey Donaldson MP welcomed the Bill, saying Parliament had to choose between the Belfast/Good Friday Agreement and the Northern Ireland Protocol.
Michelle O’Neill, Sinn Féin’s Stormont leader, said the Bill was “in clear breach of international law” and accused the Prime Minister of “pandering” to the DUP. Alliance leader Naomi Long also accused the UK Government of treating Northern Ireland’s political parties in a “differential manner”, something it rejected.
A letter signed by 52 MLAs from Alliance, Sinn Féin and the Social Democratic and Labour Party said that while the Protocol had flaws it represented “the only available protections for Northern Ireland” from the impact of Brexit.