For our weekly “Ideas on Europe” editorial by UACES, the University Association for European Studies, we welcome Dr Billy Melo Araujo, from the Queen’s University, in Belfast.
Billy, a few days ago the British government decided to introduce legislation unilaterally overriding key aspects of the Northern Ireland Protocol. You’re an expert in international trade law, what is your take on this new bill?
This Bill is the latest instalment in a long-running saga throughout which the UK has sought, on multiple occasions, to rewrite the terms of the Protocol.
As a reminder, the Northern Ireland Protocol is a legal instrument annexed to the EU-UK Withdrawal Agreement, which, amongst other things, creates a legal framework that ensures there is no hard border within the island of Ireland. It does so by requiring Northern Ireland to comply with EU customs and internal market rules in relation to goods. However, as the rest of the UK is subject to a separate customs and regulatory regimes this has meant that GB goods entering NI are subject to border checks.
But what’s wrong with that? Why exactly is the so-called Irish Sea Border at the centre of so much debate and controversy?
The application of border checks on British goods is seen by some as undermining the integrity of the internal UK market. More importantly, some people within the unionist community of Northern Ireland see these border checks as a threat to their identity as part of the UK. This is a very important point to bear in mind. The border issue is not really about goods, trade or economics. It is about complex issues of identity and belonging.
On the other side of the argument, it is argued that the Protocol’s focus is to avoid border checks within the island of Ireland. The checks being carried on GB goods entering NI are not a consequence of the Protocol itself but rather of the UK’s sovereign decision to leave the EU customs and regulatory sphere.
And what is now the effect of the famous new bill on the Northern Ireland Protocol?
The bill effectively empties the Protocol. As it currently stands, under the Protocol, goods entering Northern Ireland from Great Britain are subject to EU tariffs unless it can be shown that those goods are not at risk of being moved on to the EU. In other words, the default setting under the Protocol is that non-EU goods imported into NI are subject to EU tariffs and compliance checks to protect the integrity of the European Single Market.
The bill turns the system on its head by establishing a “dual regulatory system” that lets businesses choose whether to abide by UK or EU regulations when selling goods in Northern Ireland. It also creates a so-called “green channel” that would remove customs and regulatory checks on goods entering Northern Ireland from Great Britain, while keeping checks on goods that are moving through Northern Ireland to the rest of the EU.
And it does not stop there. The bill also does away with the direct effect of EU law in Northern Ireland and removes the jurisdiction of the European Court of Justice on matters relating to the Protocol. It also gives significant powers to ministers to disapply other aspects of the Protocol as well as the surrounding regulatory framework.
Wow! But is that actually legally possible?
There is absolutely no doubt that the bill breaches the Protocol. It is an attempt to unilaterally re- write the Protocol in its entirety. Even the UK government accepts this. It simply contends that the bill can be justified by reference to a defence plea of necessity. However, this plea can only be invoked under very exceptional circumstances. It must be shown that a wrongful act is necessary toaddress a situation of extreme gravity. Not only that, the UK would have to show that it has not contributed to the situation and that there was no other lawful alternative available to it than to completely empty the Protocol.
Even the most creative of lawyers would struggle to reasonably argue that scrapping the entirety of the Protocol – a legal instrument that was negotiated by the UK and is backed by Northern Ireland businesses and the majority of parties sitting in the Northern Ireland Assembly – could be justified on such a weak legal basis.
One last question: this bill, will it pass?
To start with, it will have to go through the UK legislative process which could take up to a year. In the meantime, the EU has already stated that it will respond by initiating a number of legal challenges against the UK. The upshot is the further souring of EU-UK relationship. More damagingly, for Northern Ireland, it means further instability, division and uncertainty in an already polarised and fragile society.