The authoritative source for independent research on UK-EU relations

11 Oct 2022

Constitution

Relationship with the EU

Katy Hayward – co-author of UK in a Changing Europe’s new report ‘The Northern Ireland Protocol Bill: context and consequences’ – sets out the state of play on the Protocol Bill, highlighting the novelty of the current situation in which the international-law breaking Protocol Bill is making its way through Parliament whilst technical talks between the UK and the EU resume. 

The Northern Ireland Protocol Bill is being put before the House of Lords today (11 October) for its Second Reading. It passed through the House of Commons before the summer recess with no amendments, although not without disquiet being expressed from both sides of the House. The government’s justification for the Bill – quite unusually – concentrates on the goings-on (or lack of them) in another parliamentary chamber, namely the Northern Ireland (NI) Assembly.

Since the election of 5 May this year, the Democratic Unionist Party (DUP) has exercised its veto rights over the operation of the Assembly and the formation of an Executive. Its actions have been in protest at the Protocol on Ireland/Northern Ireland, believing that it could thus leverage action from the UK government to see the Protocol substantively curtailed.

The NI Protocol Bill is that action. It would equip the government to disapply parts of the Protocol with immediate effect and, in their place, to put in fixes of their own. But at this stage, the detail of those fixes are, by and large, unknown. In the meantime, the Bill gives Ministers the power to act without having to come back to Parliament for further approval. This has been a cause for concern about the Bill from both its critics and its supporters.

The House of Commons debates on the Bill revealed the deep unease of a number of MPs with the considerable powers being handed to Ministers, and with so few restrictions on their exercise. The holding up of an aspired-to end goal – to see as little differentiation as possible between NI and the rest of the UK – has also proven little comfort to those who welcomed the Bill. The DUP, notably, have repeatedly said that what they will be looking to see is not merely the passing of the Bill but whether Ministers will have the ‘bravery and conviction’ to exercise sufficient powers overriding the Protocol to, as they see it, ensure that ‘Northern Ireland’s place in the UK is restored’.

This is a Bill, then, that in essence is simultaneously not enough and far too much.  There is no one who says that it, in and of itself, is the solution to the problems around the Protocol. Nevertheless, this is a Bill that is of major constitutional and international significance. By the government’s own admission, the Bill would entail ‘non-performance’ of its international obligations under the Withdrawal Agreement and the Protocol. The Scottish and Welsh governments have expressed alarm at its consequences and recommend that the Scottish Parliament and Senedd respectively withhold their consent for the Bill.

The House of Lords faces a difficult task in scrutinising this sophisticated and complex piece of legislation, not least because it is intended to address a problem that is international in nature. The Protocol, after all, is fundamentally important to the EU’s internal market as well as to that of the UK. The second reading of the Bill coincides with the commencement of a new round of talks between the EU Commission and the UK government that are intended to find joint solutions to the problems that both sides recognise exist over the Protocol. However, the Bill also addresses aspects of the Protocol that only the UK considers problematic, such as subsidy-control and the role of the Court of Justice of the EU.

As such, we have an extraordinary twist on the ‘twin track’ model of negotiations that Northern Ireland has been used to in the past. On the one hand, the peaceful path to agreement is being explored by officials looking at highly technical matters of customs, sanitary-and-phytosanitary (SPS) rules and tariff rate quotas. On the other hand, a very different path is being plotted out by Westminster as they consider a domestic law designed to break international law.

Whatever happens to the Bill in the Lords will be watched carefully by administrations from around the world. It will also be closely followed by the DUP who, at some point soon, will have to decide whether the UK has done enough – either alone or in agreement with the EU – to convince them back into Stormont.

The new report from UK in a Changing Europe is intended as a primer for those near and far who want to understand the Bill, the conditions in which it has emerged and its potential ramifications for Northern Ireland, the UK, the EU and UK-EU relations.

By Katy Hayward, Senior Fellow at UK in a Changing Europe.

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