Making social science accessible

25 Sep 2021

Devolution and the Union

Northern Ireland occupies a unique position in the relationship between the United Kingdom  and the European Union. The much-discussed Protocol on Ireland/Northern Ireland provides that aspects of EU law continue to apply in post-Brexit Northern Ireland despite it having left the bloc along with the rest of the UK on 31 January 2020.

The terms of the Protocol are without precedent. Designed to address the ‘unique circumstances’ on the island of Ireland – specifically to avoid a hard land border, maintain necessary conditions for north-south cooperation, and protect the 1998 Belfast ‘Good Friday’ Agreement in all its parts – the provisions of the Protocol break legal conventions in both the UK and the EU context.

Under its terms, Northern Ireland remains part of the UK customs territory but is subject to the EU customs code, EU VAT rules, EU Single Market regulations for goods, EU state aid rules and EU regulations relating to electricity supply and energy markets. The Protocol also guarantees Irish citizens living in Northern Ireland ‘no diminution’ in their EU citizenship rights and enables Northern Ireland to remain a recipient of dedicated EU ‘PEACE and INTERREG’ funding.

Although the UK is now a third country in EU law terms, the UK government is, under the Protocol, responsible for ensuring that those EU rules and regulations that continue to apply to Northern Ireland are properly implemented.

These provisions are novel for both parties. From an EU perspective, the Protocol outsources the management of the EU Single Market for goods to the UK –  now a third country. From a UK perspective, the Protocol introduces new barriers to trade within the UK internal market. This latter effect – the creation of a so-called ‘Irish Sea border’ – has been the cause of considerable controversy so far.

Since it came into (almost) full force on 1 January 2021 the UK has accused the EU of adopting an overly legalistic approach to the implementation of the Protocol, particularly when it comes to moving goods between Great Britain and Northern Ireland.

On the other hand, the EU has accused the UK of reneging on commitments made in a binding international legal text due to its unwillingness to implement the Protocol fully or in good faith.

The EU merely ‘took note’ of this move, while reserving the right to launch consequential legal proceedings against the UK in future.

The debate continues.

In July 2021, the UK government published a document titled Northern Ireland Protocol: the way forward in which it proposed a series of ‘significant changes’ to be considered in new UK and EU negotiations on the Protocol. In response the EU said that it would engage with the UK on practical solutions but would not reopen negotiations.

In the context of continued UK-EU disagreements over the Protocol, it is worth noting that its provisions have not yet been fully implemented. Various ‘grace periods’ that have delayed full implementation were due to expire this autumn; however, on 6 September 2021, the UK government unilaterally extended these.

Rather than retaliating, the EU merely ‘took note’ of this move, while reserving the right to launch consequential legal proceedings against the UK in future.

The implementation of the Protocol has so far generated a worrying degree of political destabilization in Northern Ireland. Unionists view the Protocol as an affront to their sense of Britishness and a threat to Northern Ireland’s place in the UK; many in the community fear that the effect of implementing the Protocol will be an ‘economic united Ireland’ by stealth and at the cost of Northern Ireland’s participation in the UK’s internal market.

the protocol

Unionist anger over the Protocol was one of the causes of violent rioting in Northern Ireland in April this year. While subsequent protests have been peaceful and relatively small, they are indicative of the lingering ire of the Unionist community over the differentiated arrangements for post-Brexit Northern Ireland under the Protocol.

Newly appointed leader of the Democratic Unionist Party (DUP), Sir Jeffrey Donaldson MP, warned of ‘significant consequences’ if the ‘political, economic and constitutional difficulties created by the protocol’ go unaddressed. Those consequences include the possible collapse of devolved institutions in Northern Ireland if Donaldson’s DUP decides to withdraw from power-sharing government in protest.

An election campaign would follow, one that is likely to further undermine political stability in an already deeply polarised post-Brexit Northern Ireland.

Clearly, there has been a huge amount of political drama surrounding the Protocol in its first six months of implementation – and that drama is unlikely to abate any time soon. But one consequence of this is that there has been little discussion of the day-to-day impact of the legal effects of the Protocol on businesses and individuals across Northern Ireland.

This essay will try to fill that gap in the conversation about the Protocol and its consequences by reviewing the impact of just one of its legally innovative dimensions – so-called ‘dynamic alignment’. It will argue, in particular, that the real-world impact of the Protocol is so extensive that some means must be found to involve people in Northern Ireland in the way new legislation arising from it is generated.

The new dynamism of Northern Ireland

Under Article 13(3) of the Protocol, instruments of EU law listed in Annexes to the Protocol apply ‘as amended or replaced’ to the UK in respect of Northern Ireland. When the Protocol and its Annexes were agreed by UK and EU negotiators as part of the UK-EU Withdrawal Agreement in October 2019, 338 acts were listed. Under the Protocol, additions can be made and acts can also be deleted.

This means that, under the Protocol, Northern Ireland is in a position of ‘dynamic alignment’ with a specified but potentially evolving selection of the EU ‘acquis’, the body of legal and other agreed obligations and commitments that apply to, and in, EU member states.

An election campaign would follow, one that is likely to further undermine political stability in an already deeply polarised post-Brexit Northern Ireland.

In implementing the Protocol, therefore, the UK must keep Northern Ireland aligned with any changes made to the EU legal instruments included in the scope of the Protocol.

Six months into the full implementation of the Protocol, how has the body of EU law that applies to, and in, Northern Ireland changed?

Like many issues in the world of Brexit, the answer is not simple. Several different types of change have taken place. These relate to different kinds of EU legislation and the processes involved in making and amending them.

The changes fall into three broad categories

  • additions to and deletions from the Annexes to the Protocol;
  • repeal, replacement, and expiry of applicable EU law; and
  • changes to EU legislation implementing applicable EU law.
  1. Additions to and deletions from the Annexes to the Protocol

The first category of change concerns the specific EU acts that apply in Northern Ireland under the Protocol. Through the Joint Committee set up to oversee the implementation of the UK-EU Withdrawal Agreement, the UK and the EU can, by agreement, add new EU acts to the Annexes to the Protocol. The Joint Committee can also remove acts listed.

Before the end of the transition period, in December 2020, the UK and EU agreed to add eight EU acts to Annex 2 of the Protocol. It also agreed to remove two EU acts listed in the same Annex.

Of the eight acts added, five related to legislation that the Joint Committee decided, following review, should have been included in the original text of Annex 2. The five acts that were added are:

The three other additions were new EU acts adopted since the content of the Protocol had initially been agreed in November 2018. The Joint Committee decided that the following three acts fell within the scope of the Protocol, so added these to Annex 2:

  • bilateral safeguard clauses and other mechanisms for the temporary withdrawal of preferences in certain EU trade agreements with third countries (Regulation (EU) 2019/287);
  • measures to reduce the impact of certain plastic products on the environment (Directive (EU) 2019/904); and
  • and measures to control the introduction and import of cultural goods (Regulation (EU) 2019/880).

The two acts that were removed by the Joint Committee concerned CO2 emissions standards for passenger cars (Regulation (EC) 443/2009) and light-duty commercial vehicles (Regulation (EU) 510/2011). Their original inclusion was deemed unnecessary.

Taking these changes into account, when the Protocol entered into force on 1 January 2021 following the end of the transition period, 344 EU law acts were listed in its Annexes. There have been no further additions or deletions since then.

  1. Repeal, replacement and expiry of applicable EU Law

The second category of change covers the repeal, replacement, and expiry of EU acts – regulations, directives, and decisions – listed in the Annexes to the Protocol. Changes in this category are the result of normal EU legislative processes and follow from the provision in Article 13(3) of the Protocol stating that relevant EU acts apply as ‘amended or replaced’ to and in Northern Ireland.

Of the 338 EU legal acts originally listed in the Annexes, 46 had been repealed as of 1 July 2021. Not all were directly replaced by a new piece of EU legislation, however. This is because several relevant changes consolidated provisions previously spread over numerous pieces of (now repealed) legislation, into one or two new, more comprehensive acts.

Overall, the 46 repealed acts have been replaced by 17 new acts. In most instances, this dynamic alignment concerns changes to pieces of EU legislation that had been adopted prior to the UK’s withdrawal from the EU on 31 January 2020. Of the 17 new acts, only three were adopted after the UK left the EU.

In terms of coverage, 23 of the 46 repealed acts concerned controls on animal health and were replaced by two new pieces of legislation: Regulation (EU) 2016/429 and Commission Delegated Regulation (EU) 2020/687. The former is known as the ‘Animal Health Law’ and the latter is a related, supplementary act. Together these two new acts incorporate and update pre-existing provisions set out in the 23 repealed acts.

The changes laid down in the Animal Health Law were agreed in March 2016, before the UK’s EU referendum and therefore with the UK taking full part in its adoption. The original text included transitional measures and allowed for the repeal of the earlier acts to take effect in April 2021.

As a supplement to the 2016 Regulation, the Commission Delegated Regulation from 2020 sets out measures to prevent and control the spread of certain diseases. The relevant diseases were listed in the 2016 act but required more specific provisions.

In a similar way, seven of the other repealed acts concerned EU rules on official controls and checks on food and feed, animal health and welfare standards, plant health and plant protection. These were replaced by a single overarching EU act (Regulation (EU) 2017/625) known as the ‘Official Controls Regulation’.

It incorporates and updates pre-existing provisions in the repealed acts. It was agreed in April 2017, shortly after the UK triggered Article 50 announcing its intended withdrawal from the EU, and so with the UK participating in the regulation’s adoption. The two regulations included transitional measures and allowed for the repeal of the earlier acts to take effect in December 2019.

Also repealed were two directives – Council Directives 93/42/EEC and 90/385/EEC – concerning the production of and trade in medical devices. This had been provided for elsewhere in Regulation (EU) 2017/745 that was already listed in Annex 2 to the Protocol so the repealed directives were not replaced directly.

A further 14 repealed regulations and directives originally listed in the Protocol have been directly replaced by new acts. Of these, four concerned the regulation of electricity markets and energy supplies (Directive 2009/72/EC, Regulation (EC) 714/2009, Regulation (EC) 713/2009 and Directive 2005/89/EC) and were originally listed in Annex 4, supplementing Article 9 of the Protocol which makes provision for the continued operation of the Single Electricity Market on the island of Ireland after Brexit.

Overall, then, of the 17 new acts that have replaced the 46 repealed acts, only three have been adopted by the EU since the UK’s withdrawal on 31 January 2020.

The four acts originally listed in Annex 4 have been replaced by four updated acts (Directive (EU) 2019/944, Regulation (EU) 2019/943, Regulation (EU) 2019/942 and Regulation (EU) 2019/941 respectively) between July 2019 and December 2020. The replacement acts cover the same policy areas and implement changes agreed in June 2019 – again, while the UK was still a member of the EU.

The remaining ten acts that have been repealed and replaced directly concerned:

Overall, then, of the 17 new acts that have replaced the 46 repealed acts, only three have been adopted by the EU since the UK’s withdrawal on 31 January 2020.

In addition to the repealed acts, two acts originally listed in the Annexes expired after the UK withdrew from the EU. These concerned the regulation of imports from third countries affected by the Chernobyl disaster (Council Regulation (EC) 733/2008) and temporary trade measures for goods originating in Ukraine (Regulation (EU) 2017/1566).

Taking all of these changes into account alongside those agreed by the Joint Committee in December 2020, the number of EU acts that apply in post-Brexit Northern Ireland has actually decreased since the Protocol entered into force. As of 1 July 2021, there are now 313 EU regulations, directives and decisions that apply; 25 less than when the Protocol was first agreed.

Annex Area Regulations, Directives, Decisions*
    October 2019 July 2021
1 Individual Rights 6 6
2 Trade in Goods 287 262
3 VAT and Excise 19 19
4 Single Electricity Market 7 7
5 State Aid 19 19
  Total 338 313
EU Acts listed in the Annexes to the Protocol on Ireland/Northern Ireland

(1 July 2021 compared to 17 October 2019 when Protocol was agreed)

* Not included are the small number of EU treaty articles referenced in the Protocol, ‘soft law’ texts (e.g., commission communications) mostly included in Annex 5, and a small number of unspecific provisions noted in the Annexes.

 

  1. Changes to EU legislation implementing applicable EU law

The third category of change relates to legislation that implements the regulations, directives and decisions listed in the Annexes to the Protocol. As in the second category – repeal, replacement, and expiry – this type of change is the result of normal EU legislative processes. It also follows from Article 13(3) of the Protocol.

To understand the significance (or otherwise) of this third category it is helpful to first explain what EU implementing legislation is and why it exists.

Often EU directives, regulations, and decisions, such as those listed in the Annexes to the Protocol, are written in quite general terms. They are, after all, designed to apply in 27 different jurisdictions. This means, however, that the original ‘parent’ act does not always set out in sufficient detail all the procedures, processes or requirements that may be necessary to implement its provisions.

So, to avoid unhelpful ambiguity or unconstructive variation in the way a new law is implemented, EU acts often provide for ‘implementing legislation’ to be adopted. Such legislation is within the scope of a given ‘parent’ legal act and sets out the rules and procedures for its operationalization and is adopted after the original parent act has passed.

EU implementing legislation – including that which is relevant under the Protocol – is adopted regularly. Each year as many as 950 pieces of implementing legislation are adopted by either the Commission or the Council.

The extent to which the EU uses implementing legislation helps explain the size of the ‘list of over 800 [adopted and draft] measures’ relevant to Northern Ireland under the Protocol apparently ‘drop[ped]’ on the UK in July 2021. The figure is high, but it is important to note that most of these are implementing acts that concern very technical and specific issues, and always remain within the scope of the original ‘parent’ act.

For example, on 7 April 2021, Commission Implementing Regulation (EU) 2021/605 was passed under the new Animal Health Law noted earlier. This implementing regulation sets out detailed provisions for dealing with an outbreak of African swine fever (ASF) – an infectious disease that affects pigs and wild boars – in EU member states and, under the Protocol, Northern Ireland.

To date, there has never been an outbreak of ASF in the UK. Moreover, controls for ASF existed prior to UK withdrawal from the EU. The new implementing regulation simply updates these in respect to Northern Ireland.

To take another example, on 14 April 2021, under the new Official Controls Regulation noted earlier, Commission Implementing Regulation (EU) 2021/606 was adopted.

Its purpose is to add the UK, Channel Islands, Isle of Man and Belarus to the list of third countries or regions from which certain animals and goods are authorised to enter the EU market under the ‘parent’ regulation. i.e. the Official Controls Regulation. It was adopted ‘without prejudice’ to the application of the ‘parent’ act to the UK in respect of Northern Ireland under the Protocol. The immediate policy significance of the change is, therefore, limited.

This is not to suggest that changes in relevant EU implementing legislation are unimportant for post-Brexit Northern Ireland, it is rather to put their significance in context. By definition, implementing legislation implements law that already applies.

Changes are not as impactful, in terms of policy and politics, as those made either by UK and EU agreement at the Joint Committee or those that result from the repeal, replacement or expiry of EU law acts that apply under the Protocol.

To discern their significance, changes to implementing legislation for post-Brexit Northern Ireland need to be tracked. This task is difficult. New EU legislation is published in the Official Journal of the European Union but determining which pieces of EU law apply to Northern Ireland, and which do not, requires detailed study and timely cross-referencing. Currently, no comprehensive and publicly-accessible register exists.

Calls to improve the transparency and scrutiny of Northern Ireland’s post-Brexit dynamic regulatory alignment with the EU therefore ought to be taken seriously by both its signatories.

One way of tracing the amount of relevant change is by looking at ‘consolidated text’ versions of applicable acts. When a substantial amount of implementing legislation has been made under an EU directive, regulation or decision, the original legal text is often ‘recast’ as a ‘consolidated text’ to incorporate changes since the parent act was made.

While not a direct measure, this process of ‘recasting’ can be taken as an indicator of the extent of changes made to the application of a given EU act via implementing legislation.

Since the UK left the EU on 31 January 2020, 77 of the EU acts that apply in Northern Ireland under the Protocol have been recast as consolidated texts. Of these 43 have been recast between the end of the transition period on 31 December 2020 and 1 July 2021.

Conclusion: A dynamic democratic challenge

What we see in this analysis is that, leaving aside the contentious politics surrounding the Protocol, the legislative complexities flowing from its implementation are extensive.

Since the terms of the UK’s withdrawal from the EU were agreed in October 2019, the EU acquis that applies under the Protocol has changed. To date, however, the majority of the most substantive ‘amendments and replacements’ enact changes agreed while the UK was still part of the EU.

This reflects the often-slow pace of EU legislative processes and the fact that the EU acquis that applies in post-Brexit Northern Ireland – primarily concerning trade in goods – is relatively stable. This notwithstanding, ‘amendments or replacements’ made in the second six months of the Protocol’s implementation, and thereafter, are much less likely to have originated while the UK was an EU member state.

This brings us back to the dual challenges of democratic accountability and legislative scrutiny that dynamic alignment poses. EU legislation currently being developed – such as for the proposed Carbon-Border Adjustment Mechanism – will likely have implications for post-Brexit Northern Ireland. Yet, at present, there is limited provision for those directly impacted by Northern Ireland’s position of dynamic regulatory alignment to be involved in its shaping or potential application under the Protocol through a decision of the Joint Committee.

This follows from both the novelty of the Protocol’s provisions and the degree of transparency (or lack thereof) surrounding the activities of the three bodies set up to oversee it – the Joint Committee, Specialised Committee and Joint Consultative Working Group.

While post-Brexit dynamic alignment with elements of the EU acquis applicable under the Protocol remains a contested issue in Northern Ireland, lack of provision for direct Northern Ireland input to the implementation of the Protocol adds more political tension to the already difficult legislative task of operationalising its bespoke provisions.

Calls to improve the transparency and scrutiny of Northern Ireland’s post-Brexit dynamic regulatory alignment with the EU therefore ought to be taken seriously by both its signatories.

The UK government has issued a recent proposal to allow a ‘stronger role for those in Northern Ireland’ to whom EU laws continue to apply under the Protocol. This ought to be welcomed. What we urgently need to see now is what form this ‘stronger role’ takes, whether or not it is agreeable to the EU, and whether it can be utilised in the divided politics of Northern Ireland.

By Lisa Claire Whitten, Research Fellow at Queen’s University Belfast. This long-read is produced as part of the ESRC-funded project ‘Governance for ‘a place between’: the multilevel dynamics of implementing the Protocol on Ireland/Northern Ireland’. Follow the project on Twitter here. For more on the Protocol on Ireland/Northern Ireland, watch our animated video here.

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