Jess Sargeant sets out the critical tests MPs and peers need to apply to the government’s contentious new legislation
The Northern Ireland Protocol Bill, introduced this week by the government, will disapply huge swathes of the Northern Ireland Protocol and parts of the Withdrawal Agreement in UK domestic law, breaching the terms of the treaty it agreed with the EU just two-and-a-half years ago. It will also give ministers broad powers to replace parts of the protocol with the government’s own arrangements with limited parliamentary oversight and, at this point, little detail as to how they will be used.
The UK government argues that this action is necessary to protect the Good Friday Agreement, to address the concerns of the Unionist community in Northern Ireland and to convince the DUP to re-establish devolved government in Northern Ireland. It says that agreement with the EU is still its preferred option, but that it has been left with no other option due to EU intransigence.
But doing so is not without consequence – for the UK’s international reputation, its relationship with the EU, and for domestic politics in Northern Ireland. MPs and Peers will need to think carefully about whether such consequences are acceptable, and whether the UK government’s proposals are developed enough to justify these risks.
1. Will the proposals address the problems with the protocol?
The first question MPs should ask is whether the government has come up with a workable solution to the protocol’s problems. If the UK is to risk angering the EU and the majority of political parties in Northern Ireland, then it must be sure that its proposed alternative to the current arrangements will actually work in practice. A 10-page document setting out the UK government’s ‘solution’, which accompanied the publication of the bill, was notably thin in detail.
It proposes a system of red lanes and green lanes, allowing goods which travel from Great Britain to Northern Ireland and stay there to avoid checks, while goods going on to the Republic of Ireland and the rest of the EU are subject to full controls. This is a good idea in principle, but it is not new. Successive governments have struggled with designing a scheme that is light-touch enough to prevent creating new burdens for businesses, and robust enough to prevent it from being abused. The government is yet to show any evidence of why the idea will succeed this time where it has previously failed. A lot more detailed work is needed.
The dual regulatory regime – allowing goods sold in NI to comply with UK or EU law – will make it easier for GB businesses to supply NI. But the Northern Ireland dairy and meat industries have raised concerns that this approach could create a whole new range of problems for them, with the risk that their products would not be acceptable in the EU creating barriers to cross-border trade on the island of Ireland.
These proposals have potential, but they are far from ready to be implemented – and without some degree of EU buy-in, will never be able to provide a long-term alternative to the protocol.
2. Will the bill bring agreement with the EU closer?
Despite preparing for unilateral action, the UK government insist that agreement with the EU remains its preference but that negotiations have stalled.
Progress is only possible, the UK government argues, if the EU agrees to change its negotiating mandate to allow the text of the protocol to be rewritten. So will the bill persuade them to do so? The short answer is probably not. Georgina Wright of the Institut Montaigne in Paris writes that the bill has convinced the EU that the UK doesn’t actually want a deal, and has further frustrated member states who consider the UK's move to be a serious breach of good faith.
The European Commission has already resumed legal action against the UK, for earlier breaches of the protocol, but has so far held off on taking stronger action, such as retaliation through the Trade and Cooperation Agreement. The closer the bill becomes to becoming law, however, the more pressure the Commission will come under to show strength in its response.
3. Is the government’s legal case strong enough to justify overriding an international treaty?
The most controversial aspect of the bill is whether it breaks international law. The UK government argues that its proposed legislation would not do so. It is relying on the ‘doctrine of necessity’ and arguing that the strain the protocol is putting on the Good Friday Agreement is so great that it has no choice but to disregard it, but many respected lawyers are unconvinced.
Writing for the IfG, Jonathan Jones, the former head of the Government Legal Department, points out that “necessity” is an “extremely high test” where states must demonstrate that they must act against “grave and imminent peril”. Jones argues that the government provides no evidence that this threshold has been met.
Breaking international law is not just a problem of principle, with the potential to damage the UK’s reputation. It also lowers the bar for other states to do so at a time when the rules-based international order is under threat. MPs must decide whether they can endorse what would be a deeply controversial move
4. Will the bill bring stability in Northern Ireland?
The protocol remains highly divisive amongst Northern Ireland political parties. The legislation is intended to address unionist concerns, and in particular to convince the DUP back into government after their refusal to do so until the Irish Sea Border is removed. But a majority of members in the Northern Ireland Assembly, and therefore a majority of voters in the election, support the protocol and 56 of 90 of Stormont’s MLAs have signed a letter rejecting in the “strongest possible terms” the government’s “reckless” legislation.
For all the government’s talk of the need for ‘cross-community support’, this latest act clearly does not meet that test. All parties acknowledge that changes to the operation of the protocol are necessary. The government is right to make a strong case to the EU, but unilateral action will not provide the certainty and stability needed to allow Northern Ireland politics to move forward.
No date is yet set for second reading, but the government has indicated that it wants to pass the bill through the Commons by summer recess. MPs will need to use this time to consider its merits, its consequences, and whether it is the right approach for the UK to be taking.
- Supporting document
- implementing-brexit-northern-ireland-protocol.pdf (PDF, 1.03 MB)
- Country (international)
- European Union
- United Kingdom
- Northern Ireland
- Devolved administration
- Northern Ireland executive
- Public figures
- Chris Heaton-Harris
- Institute for Government