The inside story of the battle over the Protocol Bill
By Jamie Bryson
The Protocol Bill was initially to be laid before Parliament for first reading (which in practice is no more than publishing the Bill) on the 6th June.
However, two events then had the effect of dislodging this date. The first and most obvious was the development of the Prime Minister facing a confidence vote, although notwithstanding that, the Bill was not then going to be moved on Monday anyway.
Brexiteer MPs, and Unionists, have been engaged with technical drafting teams over the last two weeks. In the week prior to the 6th some issues had arisen in regards the shape of the Bill, and this required further drafting work.
These talks had largely been with the Foreign Office, with the NIO only having limited involvement.
On Tuesday 7th the Bill was finalised, however Brexiteer MPs identified some technical issues with the wording of provisions relating to VAT and a minor issue around the exact wording to exclude the supremacy of the European Court of Justice (‘ECJ’).
The VAT issue related to whether the Treasury would simply be empowered to set VAT in NI the same as the rest of the UK, or take specific steps (eg. they ‘may’) or whether they would be required in particular circumstances to do so.
These last-minute led to further discussions and technical talks. At around 2:30pm a finalised position which could command the support of Brexiteer and DUP MPs, but only as a starting point on the understanding no solution would be complete under other Regulations put the broad principles into practice.
This required further drafting, however this was not completed by 3:30pm, the deadline for time-tabling for the following day’s business. A meeting of the Cabinet sub-committee on the Bill also had to take place to sign off on the final tweaks. That meeting took place this afternoon (8th June) and the Bill has now cleared Cabinet.
In consequence, the Bill could not be timetabled for publication on Thursday 9th June.
The next sitting day after Thursday is Monday 13th June, and it is now strongly expected that is when the Bill will receive its first reading.
In terms of substance, the Bill will create a constitutional framework within which Regulations will then be made to give effect to arrangements replacing the Protocol.
A number of key elements of the Protocol will be expressly disapplied by the Bill, with Ministers then empowered to replace them by Regulations. However crucially, such Regulations must be within the constitutional framework being set in stone by the Bill.
This includes the restoration of the primacy of the Act of Union, which is currently “subjugated” by section 7A of the EUWA 2018. The Bill will undo the supremacy of section 7A as a matter of domestic law.
In order to have any effect in domestic law, the terms of any international treaty must be given effect by statute. Section 7A is effectively a pipe through which the Protocol flows into domestic law; blocking the pipe- in relation to those elements which are constitutionally incompatible- will render the Protocol of no effect in domestic law.
International treaties do not create enforceable rights or obligations in domestic courts, therefore there would be no domestic remedy for anyone wishing to disapply the Protocol as Parliament- acting in their sovereign capacity- will have faced up to what they are doing and made clear their wish for the constitutional integrity of the United Kingdom to have primacy.
Put simply, the Bill will require the new arrangements- the detail of which will come by Regulations- to respect the UK Internal Market and constitutional integrity of the United Kingdom, particularly in relation to the Act of Union.
This has been a key demand of unionists, which the DUP, TUV and grassroots unionism/loyalism placed front and center of the campaign against the Protocol. In technical talks with the UK Government, and in their seven key tests, the DUP made the Act of Union the fundamental red line.
In recent months the powerful European Research Group also lobbied hard on the Act of Union.
Not only will the key sovereignty issues be on the face of the Bill, but the explanatory notes will expressly address the Act of Union.
As such the restoration of the Act of Union is a significant constitutional victory in terms of not only restoring, but indeed strengthening, via a modern constitutional statute, the framework of the Union.
The Bill will also strip out the supremacy of the ECJ, replacing it with Governance arrangements which places the UK Supreme Court at the apex.
In addition, VAT and State Aid will be stripped out and the Bill will include a sunset clause for the application of EU Law in Northern Ireland.
The key regulatory and customs issues will be resolved by a dual regulatory system, the framework of which will be laid out by the Bill, with the detail to be specified further by Regulations.
In this framework there will be provision for those who wish to continue to follow EU standards and regulations to be permitted to do so, with such standards recognised by the UK. This will allow those who wish to trade into the EU single market and also the UK internal market to voluntarily comply with EU standards, and have those standards recognised.
However, for those who wish to trade within the UK internal market, including moving goods into Northern Ireland, they will not have to follow EU regulations and will not be subject to regulatory or customs controls moving internally within the UK.
This will strip out Northern Ireland’s requirement to be bound by EU law and end our status of being effectively left in the EU single market. A crucial outcome in so far as it restores the equal footing provision in Article VI of the Act of Union.
It was reported that the UK Government had not consulted First Treasury Counsel Sir James Eadie on the Bill. This is incorrect.
Sir James Eadie QC was consulted on particular elements of the Bill, with constitutional law experts dealing with other aspects. These advices from various constitutional law experts then formed part of an opinion presented to Cabinet by the Attorney General.
This opinion by the Attorney General makes clear that domestic law and international law and two different issues.
There is no question of the legislation being unlawful as a matter of domestic law due to the doctrine of Parliamentary sovereignty, however on the question of international law the Attorney General set out a number of reasons as to why the UK Government were entitled to legislate domestically to override the Protocol in so far as is necessary.
The opinion outlined that the UK Government retains responsibility for preserving peace and stability in its own territory, and there had been significant political and societal instability caused by the Protocol.
It was after consideration of this opinion that a discussion took place a Cabinet which made clear that the UK expects to face some future international law challenge (which has no consequence in domestic law) and thus Ministers should project the narrative that they were not ‘scrapping’ but rather ‘fixing’ the Protocol, in order to assist with a reasonableness defence in domestic law.
There has been rumours of some MPs trying to use the Protocol Bill to rebel, however it has been made clear by many of the 148 rebels that they would not block the Government protecting the constitutional integrity of the UK and therefore will support the Bill as it progresses through Parliament.
Once the first reading takes place, the other stages will begin the week commencing 20th June, with space being made available to clear the House of Commons by the end of June.
However, there is still a proposal under active consideration for the Bill to be put through on an emergency basis due to the ongoing threat to peace and stability in NI. This consideration has been strengthened by the concerns set out by UUP leader Doug Beattie and DUP leader Sir Jeffrey Donaldson in evidence to the House of Lords sub-committee this afternoon.