27 June 2022

CER: Four reasons why the UK’s Northern Ireland Protocol bill is a mistake

The UK promises to “fix” the Northern Ireland protocol with unilateral legislation. This will be a major step backwards in trying to resolve genuine practical problems under the protocol.

Northern Ireland is, once again, at the centre of the political debate about Brexit. The future of the Northern Ireland protocol, part of the UK-EU withdrawal treaty – once described by Prime Minister Boris Johnson as an “excellent deal” – appears uncertain. The same prime minister now views the protocol as “unsustainable”, and his government is set to override the parts that it does not like through domestic legislation. The stated aim of the government’s plan is to resolve the political and practical difficulties that that the protocol is causing in Northern Ireland. Yet, despite the promise that the bill will “fix” the protocol, the UK’s latest gambit is set to be a major step backwards.

Disagreements over the protocol are nothing new. Almost from the day that the UK and the EU negotiated the withdrawal treaty, the two sides have had different interpretations about how to implement the arrangements that govern trade between Northern Ireland, Great Britain and the EU. What was initially a dispute over how the protocol should be implemented has, over time, morphed into a more fundamental disagreement over whether the protocol should be rewritten altogether. Last summer, the British government set out an entirely new way of operating the protocol and demanded a redrafting of the agreement. The EU responded with its own proposals – the October package – which suggested ways of easing the practical burden for businesses but without reopening the treaty. Relations between Brussels and London briefly improved after Liz Truss, UK foreign secretary, took over the negotiations with the EU from Lord Frost, the Brexit minister who stepped down last December. But the talks quickly stalled, with British officials blaming the EU member-states for refusing to give the European Commission a mandate to reopen the treaty.

The Northern Ireland Assembly election in May made sorting out the protocol more urgent. It led to the Democratic Unionist Party (DUP), the largest unionist party in the region, blocking the formation of the devolved parliament and a government in Belfast by refusing to enter the ‘power-sharing’ arrangements that are central to governing Northern Ireland. The government in London argues that the unionist concerns over the protocol are creating political instability and undermining the Good Friday Agreement. Its proposed solution has been a parliamentary bill that would alter the protocol and, the government hopes, bring the unionists back into Northern Ireland’s governing institutions.

The Northern Ireland Protocol bill is an attempt by the UK to alter the protocol by forcing a change in the EU’s position. It is effectively an ultimatum by the British government: agree to renegotiate the protocol – or we implement our own proposals unilaterally, like it or not. The legislation would, on the one hand, disapply most of the current protocol by switching off its legal effect in domestic law. On the other, it would grant British ministers extraordinarily wide discretionary powers to implement their alternative to the protocol. Although the bill was described by Boris Johnson as a “trivial set of adjustments”, it is more accurate to call it a near-complete rewrite of a binding international treaty, into which the government voluntarily entered, through domestic law.

The first is that the government stands on a very thin ground in its legal justification for unilateral action. Ministers argue that the legislation is necessary because the government has “no other way of safeguarding its essential interests”. They also argue that the legislation is “consistent with our obligations in international law”. Yet the bill clearly puts the UK in breach of Article 4 of the withdrawal treaty, which expressly states that the UK cannot legislate contrary to its commitments through primary legislation. In an implicit admission of wrongdoing, the government has felt it necessary to justify its actions by invoking “a state of necessity” to give itself at least a partial legal cover to override its existing treaty commitments.

True, the concept of “necessity” is well-established in customary international law. But the government’s case for invoking necessity is unconvincing for three reasons. First, necessity requires that a breach be “the only way for the state to safeguard an essential interest against an imminent peril”. Yet, the UK has not exhausted all options for protecting its interests because it has not used the safeguard clause of the protocol – the now-infamous Article 16 – prior to invoking necessity. Second, the invocation must not “seriously impair” an essential interest of the other party; it would be very hard for the UK to prove that its proposed solution does not create risks for the EU’s single market. Third, international practice and case law make clear that necessity can be accepted only on “an exceptional basis”, as the International Court of Justice opined in a landmark ruling between Slovakia and Hungary in 1997. All these reasons make it highly implausible that the British government can reasonably claim necessity in the present circumstances and, subsequently, win the inevitable legal dispute that the EU will raise over its claims.

It is highly implausible that the British government can reasonably claim “necessity” to justify unilateral action in the present circumstances and, subsequently, win the inevitable legal dispute that the EU will raise over its claims.

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