Introduction
This paper is designed to provide a brief overview of current issues in relation to the Protocol and various debates/questions arising from same.
It has been written in a manner which is designed to be accessible and understandable, and thus seeks- in so far as possible- to avoid excessive legal terms or technical arguments of law but given the subject matter it is unavoidable in parts.
In order to structure the paper in an accessible manner, it is divided up into sections, headed with various questions which are currently matters of ongoing debate in the public arena.
The Protocol is part of an international treaty with the EU?
International treaties are a matter of international law. They have no effect in domestic law unless there is an Act of Parliament to codify them as a matter of UK law.
A treaty is an agreement between sovereign states, and therefore any alleged breach of a treaty is a matter of international law between state; it has no bearing on domestic law. In addition, even if the UK were to lose an international law dispute, no international court can bind Parliament which is sovereign.
International treaties are non-justiciable as a matter of domestic law. Put simply, you can not go to court in the UK to enforce rights or obligations set forth within an international treaty in of itself, unless the treaty has been incorporated into domestic law.
To give an example, the Belfast Agreement is non-justiciable as a matter of domestic law. This has been reiterated by the High Court of Northern Ireland on several occasions.
It is the Northern Ireland Act 1998, which gives effect to the Belfast Agreement in domestic law, which confers rights and obligations.
Is the Protocol in domestic law?
The Protocol is given effect in domestic law via section 7A of the European Union (Withdrawal) Act 2018 (as amended by the 2020 Act). So, unlike the Belfast Agreement which was codified into domestic law via the Northern Ireland Act 1998, the Protocol- and the ever-expanding range of EU laws- flow into domestic law via section 7A.
If you think of section 7A as a pipe and the Protocol as a tap at the top of the pipe. The obligations and EU laws arising from the Protocol flows down the section 7A pipe and come out the bottom into domestic law without any further legislation.
The Protocol as part of the international treaty is the tap in our analogy, and the only way to turn off the tap and stop it flowing into domestic law is by agreement with the EU to amend or disapply the treaty.
However, given the EU refuse to come to such an agreement, the UK’s only option to stop the flow of the Protocol is to block or completely remove the section 7A ‘pipe’ through which it flows as a matter of domestic law.
If, for example, the UK via a sub-section in section 7A, or a stand-alone provision, give supremacy to the Act of Union (which is presently subjugated by the Protocol, and thus restoring the Act of Union would ‘flip’ the supremacy) then this would block the flow of the Protocol into domestic law in so far as it conflicted with the Act of Union.
At that point the international treaty would still be there, but it would have no path by which to flow into domestic law and as such none of the obligations (such as checks) would be binding or enforceable as a matter of domestic law.
It is true to say there may be an argument (which will be addressed infra) that there has been a breach of the international treaty, and thus a breach of international law, but that is a matter for international legal action which can have no binding effect in domestic law within the UK.
Is taking unilateral action in breach of the treaty?
The preamble to the Protocol itself states the following, inter alia:
AFFIRMING that the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom, the Government of Ireland and the other participants in the multi-party negotiations (the ‘1998 Agreement’), which is annexed to the British-Irish Agreement of the same date (the ‘British-Irish Agreement’), including its subsequent implementation agreements and arrangements, should be protected in all its parts..
………….
NOTING that nothing in this Protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market
………….
HAVING REGARD to the importance of maintaining the integral place of Northern Ireland in the United Kingdom’s internal market,
Article 16 (1) of the Protocol provides:
If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
It is plain from the Protocol itself that protecting the integrity of the Belfast Agreement in all its parts (including therefore functioning institutions) is of paramount overriding importance. As the Belfast Agreement was based on the key pillar of cross community consent for key decisions, and more fundamentally power sharing, therefore unionist consent is necessary to ensure the Belfast Agreement is protected in all its parts.
The Protocol has no consent from the unionist/loyalist community, and accordingly this has had the effect of fracturing the Belfast Agreement. Put simply, rather than protecting the Belfast Agreement, the application of the Protocol is dismantling it.
This brings in the provisions of Article 16 (1) of the Protocol. There are plainly societal difficulties (most notable, power sharing Government has collapsed because of the Protocol) and there has also been significant civic disruption, including serious incidents of violence. The continued application of the Protocol poses a real and present danger to peace in Northern Ireland.
In addition, there has been significant diversion of trade caused by the Protocol, effectively creating an economic United Ireland and re-orienting Northern Ireland away from the rest of the UK, and towards the Irish Republic in terms of trade.
There can be no reasonable suggestion that the criteria for Article 16 has not been met. Indeed, the Government conceded this was so in July 2021, almost one full year ago.
As such, in order to protect the Belfast Agreement and peace in Northern Ireland, the Government are perfectly entitled to take safeguarding measures under Article 16 of the Protocol, but more fundamentally are under a duty to do so in so to protect peace, prosperity and stability in their own sovereign territory.
It would seem this is a view shared by the Attorney General, who has now given legal advice which has held that overriding the Protocol in domestic law would be lawful.
However, this isn’t actually a complex question. If the Attorney General was asked ‘could the UK lawfully as a matter of domestic law disapply the Protocol?’, then the answer is very simple. Yes, of course, Parliament is sovereign.
Whether this would amount to a breach of international law is a different question all together, and one which has no relevance to domestic law in any event as international treaties are non-justiciable domestically as a matter of UK law.
It seems from the media reports that the Attorney General has obviously outlined the UK could as a matter of domestic law override the Protocol, but has also concluded that as a matter of international law the UK have grounds for doing so.
How long would legislation to override the Protocol take?
In the normal run of events, the legislation could take almost a year. The Lords also have the ability to hold up legislation, and given the time limits for doing so, if the Government did not move a bill and get it to its second reading within weeks, then there would be the very real risk that the Lords could delay the bill until the end of the second session and thus into election time which would cause the bill to fall away without becoming law.
Given the Government accept the seriousness of the issue, and the real and present risk to peace and stability in Northern Ireland, it would seem somewhat illogical to then move legislation slowly whilst the cause of the risk to peace and stability (the Protocol) continues to persist in parallel.
It would appear therefore the only viable options, certainly in terms of enabling unionist support for forming an Executive in Northern Ireland, is to move the bill as emergency legislation, or to move it at its normal pace, but trigger Article 16 in parallel to disapply the Protocol under that provision in the interim period.
Nationalists say ‘consent’ for the Protocol isn’t required, and point to there being no consent for Brexit
This argument was crystalised by nationalist activist Patricia MacBride on Nolan TV on 11 May 2022. The contribution was riddled with legal inaccuracies.
Ms MacBride firstly stated that the principle of consent did not apply to the Protocol, and as support for this referred viewers to the case of McCord in the UK Supreme Court (which was before the Protocol even came into existence).
This is entirely wrong. The case of McCord dealt with whether consent was required in Northern Ireland vis a vis the UK’s (as a whole) international relationship with the EU. This was an entirely unarguable point advanced in McCord, and unsurprisingly given a swift dismissal by the Supreme Court.
Section 1 (1) of the Northern Ireland Act 1998 (which is the principle of consent in domestic law) directs itself to Northern Ireland’s relationship internally within the UK, not the external international relationships of the UK itself.
That this question has no relevance to McCord is put beyond any doubt by the case of Allister et al [2022] NICA 15, which has subsequently granted leave to appeal to the Supreme Court and certified the referred the principle of consent question as a question of law of general public importance.
Keegan LCJ said, inter-alia at paragraph [221] of Allister:
We understand that the Supreme Court in Miller No 1 was only asked this question in relation to withdrawal from the EU. The appellants now accept that could have no application to section 1(1).
It is clear that it was entirely misleading for Ms MacBride to suggest to viewers that the question relating to the application of the principle of consent to the Protocol was settled in McCord and that the Supreme Court had made clear it was not relevant. That is wholly untrue.
The next erroneous position articulated by Ms MacBride was that cross-community consent (which she termed parallel consent) wasn’t relevant to the imposition of the Protocol, because cross community consent was only relevant to matters to be voted on by the Assembly.
The obvious problem with this assertion is that the Protocol is a matter to be voted on by the Assembly, and therefore the way which Ms MacBride put the issue is simply wrong.
Indeed, the application of section 42 of the Northern Ireland Act 1998, which translated consent for key decisions as set out in Strand One (5) (d) of the Belfast Agreement into domestic law, is another question of law of general public importance which has been granted leave to appeal to the Supreme Court.
If we, to take the bad look of it, argue Ms MacBride’s point for her, adding some substance to it for arguments sake, perhaps she may have wanted to argue that cross community consent whilst applying to votes in the Assembly (and so her basic assertion was simply wrong), only applies to those votes which are in relation to devolved matters.
That would be superficially attractive, but then if you turn to Schedule 2 paragraph 3 (c) of the Northern Ireland Act 1998 you would find that “observing and implementing international obligations” is not an excepted matter, nor is it a reserved matter within Schedule 3.
All matters which are not excepted or reserved are devolved. Therefore, implementation of the Protocol and thus the consent vote on it- which is to observe the obligations in Article 18 of the Protocol- is a devolved matter, and thus cross community consent should apply.
This is another matter presently being appealed to the UK Supreme Court.
A majority of MLAs (nationalists and Alliance) support the Protocol
The whole basis of the peace settlement, and political arrangements in Northern Ireland, rests on the key plank of ‘power sharing’ and cross community consent.
Nationalism, and Alliance, treated the key principle of consensus politics as a holy writ, yet now on the first occasion when nationalism along with Alliance believe they can gang up on unionism, they are all of a sudden advancing the merits of majority rule.
It seems majority rule is wrong when unionism has a majority, but entirely fine if it is nationalists and Alliance who can gang up as a majority.
This illuminates the wholly imbalanced nature of the Belfast Agreement ‘process’ whereby all the purportedly key principles only apply when they are necessary for nationalism’s objectives, but the moment unionism seeks to rely on cross community protections, all of a sudden the key principles must be set aside in favour of nationalist majority rule.
That raises fundamental questions about nationalism and ‘others’ commitment to the principles of power sharing. Unionism can right query whether the mantra of ‘equality’ was really a trojan horse towards the ultimate objective of nationalist supremacy.
What next?
The DUP, TUV, PUP and Alex Easton stood on the constitutionally strongest manifesto commitments in decades. All supported the express position that there could be no Executive in Northern Ireland until the Protocol removed.
A staggering 265,023 voters endorsed this unionist commitment. This was so when they were offered a clear choice given the UUP had promised they would implement the Protocol via the Executive, no matter what and would never collapse it for any reason, and never refuse to implement North-South bodies. Indeed the UUP proposed implementing the Protocol via new North South bodies.
Unionism voted for strength, not weakness on the Union.
This means that (i) the Act of Union must be restored; (ii) NI must not be subject to EU laws and (iii) the UK Courts must be supreme, thus the jurisdiction of the ECJ over NI must be ended.
Until those tests have been satisfied, then entering an Executive would be to fundamentally breach the mandate provided by the unionist community.
In equal terms, no one can have been in any doubt that the raising of the political temperature was a legitimate and necessary next phase. As such, until there is decisive movement on the Protocol, there should be no speaker elected. It is time to bring the matter to a head.
Jamie Bryson
12 May 2022