The NI Protocol Bill – what is it, and what now?

We in the Human Rights Consortium were extremely disappointed to see that Liz Truss’ proposed Northern Ireland Protocol Bill,  which outlines dramatic alterations to the Protocol while conferring powers to UK Government Ministers to amend or disapply most Articles of the Protocol at their discretion, passed the second reading stage in the Commons on the 13th June. We believe this Bill, if made law, will result in significant instability for businesses, communities on the ground, and the political climate more broadly here in Northern Ireland, while doing little to quell dissatisfaction over the operation of the Protocol.

Despite the resignation of the Prime Minister as leader of the Conservative Party on 7 July, and subsequent resignations and appointments to Cabinet, the Government has indicated it will continue fast tracking this reckless Bill, with the announcement of Committee stages on the 13th,  18th, and 19th of July. This Bill goes against international law by unilaterally altering the Protocol, a bi-lateral international agreement. The Government have also proceeded with this Bill in the absence of meaningful  engagement with communities and civil society across Northern Ireland.  This is despite recommendations made by the Sub-Committee on the Implementation of the Protocol’s initial report in July 2021 to “develop and expand formal mechanisms for long-term engagement with all sectors of Northern Ireland civic society”, particularly those who have felt “side-lined in discussions on  Brexit and the Protocol, including young people and women.”

The legal advice enabling this Bill to contravene international law relies on the doctrine of necessity, wherein a state facing “grave and imminent peril” can cease its compliance with an international obligation. However this “necessity” argument can only hold up if the Government can show it has not “contributed to the situation of necessity”; given the Protocol issues had been clearly identified prior to signing and implementing the agreement, it is hard to fathom how the UK can be viewed not to have contributed to this situation of so-called ‘necessity’. As a result, the EU has re-launched legal proceedings against the UK alleging a violation of international law.

Clause 15

Clause 15 of the Bill would, if passed, give UK Government Ministers the power to unilaterally disapply most Articles within the Protocol, with the exception of Articles 2, 3 and 11 covering individual rights, the Common Travel Area (CTA), and North-South cooperation on areas such as health, respectively. There are concerns that this Clause could be used to override the democratic consent mechanism contained within Article 18, removing the ability of the Northern Ireland Assembly to vote on the continued application of the Protocol, and further worries that any disapplication of areas of the Protocol by UK Ministers would be carried out without sufficient engagement in NI. Further, the unilateral amendment or disapplication of any Protocol Article could undermine the operation of the Protocol in its entirety, including the important human rights and CTA protections contained within Articles 2 & 3.

Clause 15(1) sets out a wide range of ‘permitting purposes’ for invoking these regulatory powers, the scope and breadth of which are highly worrying. There ‘permitting purposes’ include:

This wide scope would, theoretically, allow a Minister to unilaterally disapply or alter the Protocol for a myriad of reasons, with little clarity as to the process for deciding whether or not the reason for alteration falls within the scope of this Bill.

Delegated Powers

The Bill also contains a significant number of provisions conferring delegated powers to Government Ministers, reducing scrutiny and oversight of actions resulting from this Bill. Clause 22 essentially converts all regulatory powers in the Bill, including those contained within Clause 15, into “Henry VIII” powers, allowing Ministers to make regulations under this Bill which otherwise would’ve required an Act of Parliament. While the Withdrawal Act contained some comparative powers, these were accompanied with additional Parliamentary scrutiny through a ‘sifting’ process by Committees in the Commons and Lords. No such safeguards exist within this NI Protocol Bill, and any regulations made under the Bill do not require parliamentary approval to become or remain law unless they amend an Act of Parliament or make retrospective provision.

Further, as identified by the Hansard Society in their briefing note, 10 of the 26 clauses of the Bill provide for Ministers to ‘make any provision which the Minister considers appropriate in connection with’ the Protocol, the Protocol Bill, or the EU-UK Withdrawal Agreement. The House of Lords Delegated Powers Committee has identified legal thresholds such as ‘appropriateness’ as providing too much scope for Ministers to pass regulations outside of the original intent of the Bill, and generally recommends a test based on the ‘necessity’ of the delegated legislation, rather than its subjective appropriateness. This is part of a wider theme of this Bill and many others the Government is currently pursuing: providing Ministers with wide-ranging powers, while attempting to avoid and undermine processes and structures which hold those Ministers accountable for their decisions.

Court of Justice of the EU (CJEU)

The inclusion of Clauses 13 & 20 in the Bill to remove the jurisprudence of the Court of Justice of the EU (CJEU) from matters relating to the implementation of the Protocol is a clear sign that the UK Government has moved beyond the realm of generating reasonable, workable suggestions and seeking meaningful compromise with the EU. Removing the Court of Justice of the EU (CJEU) jurisprudence for addressing trade issues in Northern Ireland has been identified by the EU as a non-starter in negotiations; the CJEU is essential for ensuring that the rules and standards of the EU Customs Union and Single Market are upheld and enforced where a state or region is bound by those rules, as Northern Ireland is under the Protocol. There are also concerns that Clause 20 does not exclude Article 2 of the Protocol from this removal of CJEU jurisprudence. Courts in Northern Ireland must be able to rely on established case law in the CJEU in their interpretation of the equality and non-discrimination Directives contained within Annex 1, as part of the UK Government’s commitment to ‘keep pace’ with any changes to these Directives.

Given that these Annex 1 Directives have been retained to provide a baseline for protecting equality of opportunity and promoting non-discrimination in Northern Ireland, the prospect of being unable to keep pace with the developing case law on how these Directives should be applied is highly concerning, and could result in a breach of the UK Government’s non-diminution commitments in Protocol Article 2.1.

Final thoughts

This NI Protocol Bill is having a detrimental impact on relations between the EU, Ireland and the UK, breaches international agreements, and risks severely undermining the rule of law. If passed, the Bill would likely result in a significant amount of legal uncertainty, contributing to the already widespread disruption and instability for communities and businesses across Northern Ireland stemming from the cost-of-living crisis and lack of local governance. It would also jeopardise the delicate balance that was reached by the UK and EU in their negotiations around the Protocol, which was carefully designed to deal with the particularities of the political and constitutional environment in the region. While there may be issues yet to be resolved regarding its implementation, this does not justify the move by the Government to unilaterally alter a delicate and sensitive international agreement. It’s extremely disappointing that this Bill passed the second reading in the Commons without the above issues being addressed.

Under the current timetable for the Bill, it is expected that it will reach the House of Lords before October, following the Committee stage and third reading in the Commons.