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The Northern Ireland Protocol Bill no longer has any legal justification

Northern Ireland's power-sharing government has been out of action since early 2022 (Alamy)

3 min read

Resolving the complex issue of the Northern Ireland Protocol is not only desirable, but absolutely necessary. Not only for domestic reasons, but also for the United Kingdom's international position. 

As we reach the 25th anniversary of the Belfast Good Friday Agreement, there is a real risk that things will go backwards if there is a continued failure of political leadership. 

Last year, the government introduced the Northern Ireland Protocol Bill in an attempt to break the deadlock. Now, it is right that the government seeks agreement with the European Union and to acknowledge that the bill’s political utility has run its course.

Back in mid 2022, it seemed as if the stalemate between the UK and the EU as to potential reform to the Northern Ireland Protocol would never end. 

There was no sign that the EU was prepared to even admit that the protocol was creating problems with east-west trade that were a significant disturbance to the third strand of the Belfast Good Friday Agreement of 1998. 

At that point, it was still entirely within everyone’s contemplation that the executive at Stormont could be created, and the Democratic Unionist Party was signalling that if the UK government demonstrated its firmness of resolve to rectify unilaterally the problems in the protocol, then it would enter the executive. 

The government decided to follow through on its 2021 white paper and published the Northern Ireland Protocol Bill in June. This was the instrument that sought to reform the protocol’s operation in a way that would cause a direct contradiction with Britain’s treaty obligations. 

In one key area, however, the bill’s provisions have been misunderstood. It would allow UK ministers to disapply EU law and the operation of the European Court of Justice, but importantly it allows ministers to reapply EU law if they consider it appropriate. 

In other words, it does not purport to change the terms of the protocol itself, but to change the way in which they may be applied by the UK. Only a renegotiation of the protocol itself under Article 13(8) could limit or remove the jurisdiction of the ECJ and EU Law. 

The Northern Ireland Protocol Bill, therefore, is not the way to achieve the aim of those who want a complete end to the role of EU law in the UK, which is why negotiations with the EU should be universally welcomed.  

Further, now that its first political aim, namely the start of negotiations with the EU, has been achieved, it follows that the legal argument that the bill was necessary because there was no other way of achieving change has evaporated. 

Regarding its second aim, the Northern Ireland Executive Formation Bill that is being debated in the House of Commons tomorrow will extend the deadline for forming an executive without the need for an election to January 2024. 

As we see an increasing focus on the role of the ECJ as a stumbling block to agreement, it is notable that the DUPs “seven tests” for acceptance of a deal do not mention the ECJ issue at all. Cynics would be justified in concluding that if the issue was not important enough to be one of the tests, then its deployment at this stage is for purely political reasons. 

The most effective way to reduce or end the role of ECJ will be via the ongoing negotiations, not via the bill. 

In short, things have changed dramatically since mid 2022.

The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification. It is the proverbial dead letter.

Sir Robert Buckland is the MP for South Swindon, former secretary of state for justice and a member of the Northern Ireland Affairs Committee.

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