The Northern Ireland Protocol Bill is one of the most extraordinary pieces of legislation I have ever seen
5 min read
Compared with the Internal Market Bill, which I resigned over, this is a wholly different order.
The government published its long-awaited Northern Ireland Protocol Bill this week.
The government has been unhappy with the Northern Ireland Protocol almost from the moment it was signed, as part of the EU Withdrawal Agreement, in January 2020.
It attempted to make changes to it in the 2020 Internal Market Bill, which the Northern Ireland Secretary accepted would involve committing “limited and specific” breaches of the United Kingdom’s international obligations. In the end, those provisions were withdrawn after much hoo-ha (and my resignation as treasury solicitor).
The UK has shown the world that it is prepared to walk away from important treaty obligations on the flimsiest of pretexts
The new bill is of a wholly different order. It is one of the most extraordinary pieces of legislation I have ever seen.
It overrides (or empowers ministers to override) almost every aspect of the Protocol.
“Limited and specific” it certainly isn’t.
The bill disapplies or substantially alters provisions of the Protocol dealing with customs, movement of goods, state aid (or in post-Brexit UK language, subsidy control), the jurisdiction of the European Court of Justice, together with the implementation, supervision and enforcement of the Protocol.
In addition, the bill confers powers on ministers to make regulations amending or disapplying other provisions of the Protocol for a wide range of purposes set out in Clause 15 – including safeguarding “social or economic stability in Northern Ireland”, “the territorial or constitutional integrity of the United Kingdom”, (perhaps ironically) the “integrity of the EU single market”, various health, welfare and environmental interests – and so on. The provisions which can be amended or set aside in this way include the whole of the Protocol (even including Article 18 on democratic consent in Northern Ireland) apart from Articles 2 (individual rights), 3 (the common travel area) and 11 (other areas of North-South co-operation).
The bill is notable for the number and breadth of the powers it confers on ministers.
The Hansard Society has described the scope of these powers as “breathtaking”.
Of the bill’s 26 clauses, 15 confer powers on ministers to make regulations to change things, define things, make “any provision the minister considers appropriate” in connection with the Protocol, and generally determine how it is or is not to operate. Clause 22 provides that any of these powers can be used to amend primary legislation – including the bill itself – thus creating a whole family of “Henry VIII” powers.
Perhaps most extraordinary of all, Clause 18 provides that a minister may “engage in conduct in relation to any matter dealt with in [the Protocol]” if the minister “considers it appropriate to do so” in connection with any of the purposes of the Bill: what might be described as a “do whatever you like” power. If Brexit was about “taking back control”, this bill makes it clear that the control is to be exercised by the government, not by Parliament.
Of course the bill can only change UK law. But the Protocol, as part of the Withdrawal Agreement, creates obligations under international law. The government has issued a statement asserting that the bill is consistent with international law. It accepts, as it must, that the new bill involves the “non-performance of [the UK’s] international obligations”. The government justifies this on the basis of the international law doctrine of “necessity” – that “the legislation is currently the only way to provide the means to alleviate the socio-political conditions” in “the challenging, complex and unique circumstances of Northern Ireland”.
Like most legal commentators, I regard this explanation as hopeless.
The concept of “necessity” is an extremely high test. It applies only where a state must act to safeguard its essential interests against “grave and imminent peril”.
How can an agreement willingly entered into only in 2020, at what the Prime Minister described as a “fantastic moment”, be already proving so disastrous as to represent “grave peril” to the country?
The government statement provides no evidence for such an extreme conclusion.
Moreover there is no explanation for why legislation on the scale of the bill is “necessary” to deal with the situation – why lesser measures have not been attempted first, including Article 16 of the Protocol which allows the EU or UK to take certain “safeguard measures” if the application of the Protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. How can it possibly be true, for example, that the jurisdiction of the European Court of Justice over aspects of the Protocol represents a “grave and imminent peril” to the UK? Finally, the bill – assuming it is eventually passed – is likely to take many months to get through parliament. If the UK really did face imminent peril, you might think the government would need to deal with it more quickly than that.
The bill may in fact never become law. It is likely to meet serious opposition in Parliament, particularly in the House of Lords.
But it has already, predictably, provoked the ire of the EU, which is threatening to revive existing legal proceedings against the UK, and to start new ones. We may see retaliatory action.
And even by bringing forward the bill, the UK has shown the world that it is prepared to walk away from important, recently agreed, treaty obligations on the flimsiest of pretexts.
The damage has already been done.
Sir Jonathan Jones is former treasury solicitor and permanent secretary of the government legal department.
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