The Northern Ireland Protocol Bill (NIPB), turning off large sections of the Northern Ireland Protocol, obviously raises issues for lawyers of all stripes. It throws up a particular set of concerns for constitutional lawyers. It illustrates that Parliament can legislate to constrain the courts, but also to hand increasing powers from itself to the Executive. It demonstrates the increasing dominance of Whitehall (the Executive) over all other branches of the state – notably the courts and Parliament.
Parliamentary sovereignty and direct effect
When the UK was a member of the EU, courts could disapply (ie. set aside) UK legislation that contradicted provisions of EU law. This was the revolutionary doctrine of the supremacy of EU law. Unlike any other international organisation, the EU could pass laws that took precedence over national law. So, if a provision of a UK Act contravened a provision of an EU law, the latter prevailed.
But this required a legal basis. This was provided by section 2(1) of the European Communities Act (ECA) 1972 which required UK courts to give direct effect (i.e. enforceability) and supremacy (precedence) to EU over UK law.
Many Brexiters wanted the supremacy of EU law stopped and this was one of the reasons for the Brexit vote. The European Communities Act 1972 (ECA) 1972 was duly turned off by the European Union (Withdrawal) Act (EUWA) 2018.
However, the story doesn’t end there. International agreements have to be implemented into UK law. This is particularly the case for the Withdrawal Agreement (WA), which includes the Northern Ireland Protocol, as it requires that the UK recognises the direct effect and supremacy of its provisions.
The UK did this by using exactly the same techniques it had used in the European Communities Act. It instructed judges (in section 7A EUWA 2018) to give precedence to directly effective provisions of the NIP where they conflicted with UK law. And so, if the UK legislated ‘accidentally’ in a way that was contrary to the NIP, the NIP would prevail.
So what would change under the NIPB? Well, lots. The NIPB switches off section 7A EUWA 2018 which gives the Protocol legal effect in UK law, albeit for a specific set of ‘excluded provisions’. And for good measure, it switches off the ability of UK courts to refer cases concerning the NI Protocol to the Court of Justice of the European Union.
And so, while the NIPB may well breach international obligations, government lawyers have done an impressive job in insulating it against challenges under UK law. The wording in the NIPB is so precise that it is hard to see how, as a matter of UK law, UK courts could give effect to the NIP.
This analysis shows something which constitutional lawyers have long known but not seen operating in such stark terms: Parliament can legislate freely to constrain the courts and there is very little the courts can do about it. A successful challenge of the NIP Bill or Act in the UK courts is unlikely.
Having switched off aspects of the NIP, the Bill goes on to provide eye wateringly broad powers to the Executive. Ministers will be able to come up with new regulations on, for instance, the movement of goods between Great Britain and Northern Ireland. The Treasury can also regulate customs issues.
And Ministers, in many cases, gain these powers when they consider it ‘appropriate’. And they can use them – with certain exceptions – to alter primary legislation. In other words, these are so-called Henry VIII powers. In so doing, they are subject to the negative resolution procedure. Parliament can vote against the regulations, but it doesn’t have to vote in favour for them to be adopted.
Equally striking is Clause 19 of the Bill. This, remarkably, empowers a Minister to take measures as s/he considers appropriate to implement any new agreement reached with the EU to replace the NI Protocol. So much for parliamentary scrutiny over international treaties.
And so, Whitehall prevails over Westminster. This is perhaps the most worrying aspect of the NIPB. It is part of a broader and consistent pattern of Government Ministers asking Parliament to give them ever more powers to use as they see fit.
So the NIPB, striking in itself for its ambition to turn off large tracts of the NIP and stopping the UK judges for being able to strike it down as contrary to the WA, also carries on the tradition of ensuring government by Executive and not by Parliament.
By Professor Catherine Barnard, Deputy Director, UK in a Changing Europe.