Bordering on the insurmountable: NI protocol hangs in the balance

This article was first published in the Sunday Business Post, Sunday 12 June 2022.

Tensions rise as many believe legislation being prepared by Britain to unilaterally scrap parts of the Northern Ireland protocol will cause more problems than it solves.
 
“Please don’t go there,” was the message Simon Coveney told reporters that he wanted to send to the British government last week.

The Minister for Foreign Affairs was referring to a bill which will reportedly pave the way for the British government to unilaterally scrap parts of the Northern Ireland protocol, an agreement which governs trade between Britain and Northern Ireland post-Brexit.

The bill was meant to have been published at the end of last week, but this was delayed as a result of an apparent disagreement over what form it should take.

Coveney said his message to the British government was “very clear”; if it was genuinely interested in negotiated solutions to the problems with the protocol, then it should produce evidence of a willingness to compromise and be flexible.

“Publishing this legislation will cause a lot more problems than it solves, not just between Britain and Ireland but between the UK and the EU,” Coveney added.

His remarks acknowledged rising tensions over the future of the protocol, which was agreed in 2019 and implemented in 2021. It provides that goods are checked at Northern Ireland’s ports as opposed to at a land border between the North and South. It also agreed that Northern Ireland would keep following the EU rules on product standards.

Unionists in the North have been vehemently opposed to the protocol because they claim that it undermines its place within the UK.

The drive to resolve issues with the protocol has also been motivated by the Democratic Unionist Party (DUP)’s refusal to return to power-sharing until its concerns are dealt with.

Lawyers and academics have warned that if the proposed British bill was passed, it could result in retaliatory measures imposed by the EU. There have also been warnings that the British government would be in breach of international law by unilaterally introducing legislation of this nature.

But given that Brandon Lewis, the Secretary of State for Northern Ireland, previously acknowledged that a 2020 bill breached international law in a “very specific and limited way”, it’s unclear whether this would be a deterrent.

So what are the legal implications of Britain unilaterally scrapping parts of the protocol?

Protecting the Agreement
The purpose of the protocol is to prevent the return of a hard land border North and South.

Underpinning this was a shared desire between Britain and the EU to ensure the Good Friday Agreement was protected. The 1998 peace deal is now cited by senior British and DUP politicians as the reason why the protocol needs to be amended or scrapped.

The reason for this, as claimed last month by Conor Burns, a Minister of State for Northern Ireland, was because the Good Friday Agreement relied on a delicate power-sharing balance and required cross-community consent. He said this had not occurred because the protocol was opposed by the DUP.
According to Una Boyd, a Belfast-based solicitor with the Committee on the Administration of Justice (CAJ), a human rights non-governmental organisation (NGO), the British government was essentially “making up breaches” of the Good Friday Agreement and “moving the goalposts” in a partisan way. She said this was “profoundly destabilising”.

“It was drafted by the British and agreed to by the British but now they claim that the document they signed to protect the Good Friday Agreement breaches the Good Friday Agreement, which is profoundly absurd, but it is gathering currency and is largely the basis for the intervention,” she said.

“The arguments being used for an alleged breach of the Good Friday Agreement are incredibly weak and, from our perspective, aren’t credible,” she added.

Addressing one of those arguments, which was the issue of regulatory divergence, Daniel Holder, CAJ deputy director, also said that the whole point of the Good Friday Agreement and devolution was that things were not the same across the different UK jurisdictions.

He noted that Northern Ireland was run by a unionist government for the first half century of its existence and during which there was regulatory divergence. He said people in Britain previously needed to have work permits to work in Northern Ireland.

“So the idea that having to check sausages in a port undermines the place of Northern Ireland in the UK is an odd one,” Holder added.

Previous legal challenges
This is not the first time that the protocol or aspects of it have been called into question. Legal challenges against the lawfulness of it were unsuccessful in the Belfast High Court last year and Court of Appeal earlier this year.

Senior judges ruled in April that the Supreme Court will now consider legal aspects of the case which was mounted by unionist politicians and led by Jim Allister, leader of the Traditional Unionist Voice (TUV).

Oran Doyle, a law professor at Trinity College Dublin, said a minor but interesting aspect of the current situation was that the British government was making a very different argument to the one it made in the Allister case, in which it was the defendant. He said it defended the protocol in that case and argued there was no inconsistency with the Good Friday Agreement.

“Now they’re saying the opposite, and while there is another level in which you could say there is a political inconsistency with the Good Friday Agreement, Brexit was equally if not more inconsistent,” he said, noting that the Brexit vote did not have nationalist or majority consent in Northern Ireland.

“There was no cross-community support for Brexit and yet it’s now argued that there needs to be cross-community consent for this particular type of Brexit,” he added.

Another important point to contextualise the legal debate about the protocol was that Britain operates a dualist system. This means that international treaties have no legal effect within the domestic legal sphere until an Act of Parliament or secondary legislation gives them some kind of effect.

Britain passed a bill in 2020 to ratify the Withdrawal Agreement and incorporate it into the country’s domestic law. The proposed new legislation may, according to media reports, give a relevant minister the power to amend the earlier bill.

Doyle said that while this would be permitted under British law, it would be in breach of the country’s obligations under international law. He referenced the prior comments from the Northern Ireland Secretary in which he acknowledged that a separate plan to amend Brexit legislation would breach international law “in a very specific and limited way”.

“Do states fully adhere to their international law obligations? Not always, but they want to be seen like they do,” Doyle said.

“The British government say they have an argument this time. The problem with that argument is that it’s incorrect. The protocol doesn’t breach anything specific in the Good Friday Agreement.”

According to a senior legal source, another angle to consider was how the survival of the protocol threatened those who are opposed to the concept of the EU in general. The individual said if the economy in Northern Ireland continued to grow in the coming years, this could be attributed to its access to the single market.

“If you’re a solid Brexiteer, you don’t want to see the protocol succeeding, because it’s a real-life experiment of being in the EU,” the individual added.

Intricate political system
It is impossible to analyse amending the protocol without running into the intricacies of the political system in the North. This is especially the case since the row over the protocol’s impact has hampered the formation of a government at Stormont.

Bobby McDonagh, a former diplomat and Irish ambassador to Britain, said the primary concern behind the push for the bill was about internal Tory politics as opposed to the DUP.

“A lot of what’s happened in recent times on Northern Ireland and the whole Brexit process goes back to an internal Tory party divide,” he said.

“It’s a bit rich that the disagreement in the party now is about the manner in which they want to break the law,” he added.

According to a report in the Financial Times last week, Boris Johnson, the British prime minister, was angry with Liz Truss, the Foreign Secretary, over her alleged attempt to toughen up the draft legislation on the protocol. It was claimed that a number of Cabinet ministers wanted assurances that the legislation did not break international law and would not lead to a potential trade war with the EU.

The British government also denied that it failed to consult James Eadie, the government's independent barrister on major legal issues.

This followed on from another controversy over the protocol and legal advice in 2020 when Jonathan Jones, then the government’s most senior legal adviser, resigned over proposed changes to it. He told The Times last year that it was a move that “plainly involved breaking international law and our treaty obligations”.

McDonagh said the views held by Jones were held by many other legal experts in Britain at the moment, which indicated that “even their most senior lawyers know what’s going on”.

He said the main point to understanding the protocol was that Brexit “created a problem” and it tries to minimise the damage.

“It’s not something that was introduced to antagonise the unionists or make life difficult for the British,” he said.

“While we have to be sensitive to unionists’ concerns, we can’t pretend it’s a negotiation between unionists and nationalists, it’s not; it’s between the EU and the UK,” he added, noting that the anger from the Irish government was based on a fear that it was “going to get into worse waters” in its relationship with London.

If the British government did press ahead with plans for the legislation, many lawyers have said it could open a path toward trade confrontation between it and the EU. This means that the EU could take enforcement action against Britain.

Vincent Power, a partner at A&L Goodbody who specialises in EU law, said that the EU tended to move slowly when adopting treaties and was legally robust at not conceding changes. He said if the EU permitted the British government to change the protocol it would risk undermining its position in current and future agreements with other countries.

“It wouldn’t want to be seen to be giving into somebody changing their mind on a deal,” he said.

“If the EU was seen to suddenly react to the UK and change that agreement again that would be challenging for it because then other people might want their agreements changed suddenly.”

Power said the discussions about what the EU may or may not do in retaliation to the British bill may be premature since he believed what was happening in London was a “very slow bicycle race”.

“We have seen legislation brought forward quickly there in recent years; this is a deliberate slow cycle, you march the troops up the hill and down the hill. It’s a bit like Agatha Christie’s Mousetrap; it’s a mystery, nothing is quite like what it seems, and it will run and run in London,” he added.

Legally, Power said, the solution was about enforcement. This involved conducting checks on a risk-based profile to avoid being strict on all goods.

He also noted that there were a number of other elements in the protocol which were controversial in some quarters but may be necessary for the survival of the agreement as a whole. He compared the protocol to Jenga, the block stacking game.

“You have bricks all the way up, maybe you can remove one brick but when you remove another brick, it all goes,” he said. “It’s a very delicate, carefully crafted, document,” he said.

Date published: 13 June 2022