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Government has important questions to answer about the legality of the Northern Ireland Protocol Bill

4 min read

Its legal position is questionable and ministers should explain it to parliament.

The Northern Ireland Protocol sought to reconcile difficult and sensitive post-Brexit issues.

Safeguarding the Belfast or Good Friday Agreement, preventing a “hard border”, simultaneously protecting the European Union single market as well as safeguarding the position of the province as an integral part of the UK.

Unfortunately, it has failed in those objectives.

Economic and trade disruption, and a growing sense of being separated from the rest of the United Kingdom, are well documented, while the collapse of the power sharing Executive potentially undermines the Belfast Agreement.

The solution should be renegotiation. The protocol itself makes provision for this in Article 13(8). The Withdrawal Agreement, of which it is part, makes provision for changes to the text to address “deficiencies” or “situations unforeseen”.

Going further, Article 16 of the protocol even allows one party to take unilateral safeguarding measures to disapply parts of it, if their application causes serious economic or societal difficulties or diversion of trade.

But attempts at negotiation have thus far failed.

A good deal of the blame lies with the needlessly rigid and inflexible approach adopted on the EU side. I share much of the frustration felt by UK ministers. That frustration has led them to set up the option of acting unilaterally, but not, in the first instance, by invoking the Article 16 procedure.

Instead, the government has introduced the Northern Ireland Protocol Bill, which would disapply parts of the protocol from UK domestic law by primary and secondary legislation.

The difficulty with this is that the protocol, as part of the Withdrawal Agreement, is an international treaty into which the UK freely entered. The basic principle of international law is “pacta sunt servanda” (“agreements must be kept”). The UK, as a global force and a major trading nation, benefits greatly from our reputation for keeping our word and upholding the rule of law, domestically and internationally. We should be very wary indeed of damaging that standing.

The government justifies this departure from the norm by invoking the established but seldom used international law doctrine of “necessity”, but that needs to be examined carefully.

“Necessity” allows a state to unilaterally depart from a treaty if it is the “only means” it has to “safeguard an essential interest against a grave and imminent peril”.  In case law, this has also been described as there being a “real and pressing” need to act.  

I can see that it might be argued that the economic harm caused by trade disruption, and the instability caused by the absence of devolved government - contrary to the intention of the Belfast Agreement - falls into that category, but it is a high bar to clear.

Given the legal and reputational significance of taking such steps, should the government not have to make its case to, and seek the specific endorsement of, parliament, in such instances?

Giving ministers the power to do this by regulation under the exceptionally wide Henry VIII powers in the Bill seems hard to justify.

Similarly, Clause 20 seeks to exclude the jurisdiction of the European Court of Justice in respect of the protocol. I can see that such continued jurisdiction may offend many, but given that it has never yet been used, or is planned to be used in the immediate future, how is that an “imminent threat”?

And whilst the Article 16 procedure can be long drawn out, if we have not tried it, or at least commenced it in parallel, can we really say that unilateral action is the “only means” available to us?

Introducing the Bill does not of itself breach international law, but it is politically very risky, not least in the absence of any commitment from the DUP to return to power sharing even if it is enacted.

There is no date yet for second reading, never mind committee stage, but there are already important questions to answer.

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