British Cavalier Attitude

On 17 May, the UK’s Foreign Secretary, Liz Truss, announced to the House of Commons that the Government would be introducing legislative proposals to supersede the Northern Ireland Protocol (NIP). This drastic measure is the culmination of strained negotiations between the UK and the EU to modify the NIP since summer 2021. Stepping outside of the framework of the Withdrawal Agreement to address the claimed problems, the UK challenges the Rule of Law in international relations.

The UK has come close to ‘state civil disobedience’ in its justification for this action. Liz Truss argued that the UK was acting to defend the Belfast (Good Friday) Agreement (GFA) 1998; however, she did not invoke the specific mechanism for addressing emergency situations – Article 16 NIP. This post will argue not only that the UK should use the Protocol’s safeguards clause, but also that the justifications advanced by the Government would qualify for consideration under Article 16, although it is debatable whether the measures would fully satisfy its conditions in their proposed form. The EU should nevertheless seek to persuade the UK to make use of Article 16. Next to strategic benefits for the EU, this would preserve a stronger form of international legality in the diplomatic bargaining between the EU and the UK.

Strained renegotiations further complicated by the Northern Ireland Assembly Elections

Following the coming into force of the EU-UK Withdrawal Agreement (WA) in January 2020, and the Trade and Cooperation Agreement (TCA) in December 2020, the UK has been attempting to renegotiate the Protocol on Ireland/Northern Ireland since the publication of a Command Paper in July 2021, though negotiations were stalled until the outcome of the Northern Ireland Assembly elections on 5 May 2022. For the first time, the nationalist Sinn Fein party won the most seats since the Good Friday Agreement came into force which would entitle it to nominate the First Minister who leads the Northern Ireland Government alongside the deputy First Minister under power-sharing arrangements. The previous Democratic Unionist Party (DUP) First Minister had already resigned over the Protocol in February. Following the results, the DUP as the second largest party announced that it would not elect a deputy First Minister until the NIP was overhauled. This is a minority position as 53 of the new Members of the Legislative Assembly (MLAs) want to keep the Protocol whereas 37 want it to be scrapped. Nevertheless, the DUP has halted the formation of a governing Executive because power-sharing arrangements effectively give a veto to the largest parties representing the unionist and nationalist communities. After public statements by the UK Prime Minister on the Government’s Northern Ireland policy and meetings in Belfast, the Foreign Minister Liz Truss announced the legislation “to make changes to the Protocol” on 17 May.

The obvious route – could Article 16 NIP be invoked?

The announcement has prompted a similar reaction to that provoked by the UK Internal Market Bill clauses in 2020, which included an EU infringement procedure. The European Commission Vice-President Maroš Šefčovič immediately responded that “unilateral actions contradicting an international agreement are not acceptable”, very much to the contrary of Liz Truss’ statement who claimed that “the Bill is consistent with our [the UK’s] obligations in international law”. The UK Attorney-General’s private legal opinion appears to be based on the perception that the NIP threatens the Good Friday Agreement. This position is neither shared by the nationalist and non-aligned parties in Northern Ireland nor the co-guarantors of the GFA of the Irish Government, the EU, and the US Government. Reports suggest that the UK legal advice relies on claims about the “primordial significance” in international law of the GFA, and “disproportionate and unreasonable” implementation of the Protocol by the EU.

Rather than advancing such nebulous arguments, it is striking that the UK Government has not attempted the obvious route of legal justification built into the Northern Ireland Protocol itself – Article 16 NIP, which deals with safeguard measures “[i]f the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

Formal requirements

Annex 7 to the Protocol outlines the formal requirements for triggering safeguard measures. The UK has not (yet) followed these procedures. It would be required to notify the Union “without delay” through the Joint Committee that it is considering safeguard measures and provide all relevant information. The Parties would then be required to enter immediately into Joint Committee consultations to find a “commonly acceptable solution”; the UK could only take safeguard measures either one month after notification, or upon the conclusion of consultations if the latter occurs first. The UK would then need to notify the measures taken without delay; the safeguard measures would be subject to consultations every three months with a view to their abolition before the envisaged date of expiry, and either party could request the Joint Committee to review the measures at any point. Paragraph 3 of Annex 7 contains a crucial exception to the procedures: “[w]hen exceptional circumstances requiring immediate action exclude prior examination, the Union or the United Kingdom, as the case may be, may apply forthwith the protective measures strictly necessary to remedy the situation”.

Permission to adopt measures

Article 16(1) NIP provides a permission that “the Union or the United Kingdom may unilaterally take appropriate safeguard measures”. Annex 7 suggests that the only means for regulating the adoption of such measures ex ante is through the Joint Committee consultations. The only abortive precedent for Article 16 measures was the European Commission’s unilateral announcement and reversal of restrictions on the export of COVID-19 vaccines in January 2021. The swift U-turn means that it is unclear whether the Commission was planning to fulfil the Annex 7 requirements, or whether it would have sought immediate adoption using the “exceptional circumstances” clause. Regardless, the presence of the aborted measures in an EU Regulation suggests that domestic legislation is an acceptable format for safeguard measures. Moreover, because the Foreign Secretary only made an announcement without publishing the text of a Bill, there is still time for the Government to make a notification under Annex 7 setting in train the maximum period of one month before the legislation could be adopted.

Conditions for adoption             

The substantive enabling condition for such measures to be legally valid is “if the application of this Protocol leads to serious economic, societal, or environmental difficulties that are liable to persist, or to diversion of trade (emphasis added)”. Despite the lack of formal notification, the justifications provided by UK Ministers seem tailor-made for these conditions. This may be because a similar set of justifications were first advanced in the Command Paper in July 2021 as part of the argument that “the circumstances exist to justify using Article 16”. Regarding diversions of trade, Liz Truss argues that “EU customs procedures for moving goods within the UK have already meant companies are facing significant costs and paperwork.”. On economic difficulties, she outlines that “SPS [Sanitary and Phytosanitary] rules mean that producers face onerous restrictions” and “rules on taxation mean that citizens in Northern Ireland are unable to benefit fully from the same advantages as the rest of the UK, like the reduction in VAT on solar panels”. The example given of burdens for green technologies can also be regarded as contributing to “environmental difficulties”. Finally, and most saliently, on “societal” difficulties the Foreign Secretary argues that “the Northern Ireland Executive has not been fully functioning since early February…because the Northern Ireland Protocol does not have the support necessary in one part of the community”. Therefore, prima facie, the United Kingdom has advanced reasons for its unilateral measures that could qualify for consideration under the conditions established by the Protocol.

The measures

The proposals do appear to be more specific and constructive than the UK Internal Market Bill powers, which would have simply enabled Ministers to create regulations contravening the Protocol. To address diversions to trade, the Foreign Secretary proposes a “green channel” for good moving between Great Britain and Northern Ireland. To remedy the claimed economic and regulatory difficulties she proposes that “businesses will be able to choose between meeting UK or EU standards in a new dual regulatory regime”, and that the UK Government will have the ability to decide on tax and spend policies. On the societal difficulties caused by the perceived threats to the Northern Ireland peace settlement, the proposal is that “the Bill will contain an explicit power to give effect to a new, revised Protocol if we can reach an accommodation that meets our goal of protecting the Belfast Good Friday Agreement”.

The proposal to “address issues related to governance, bringing the Protocol in line with international norms” mimics the Command Paper’s reasoning for “devising alternative dispute settlement arrangements” with a “return to a normal treaty framework…in which governance and disputes are managed collectively and ultimately through international arbitration”. Therefore, it seems that the draft legislation may attempt to remove the special jurisdiction of the Court of Justice of the EU and the roles for other EU bodies under Article 12 NIP. The mere existence of these roles, which have only been notably activated through the Commission’s infringement procedure over the UK Internal Market Bill, seems less obvious as a source of “difficulties” than border checks and EU single market regulations. Nevertheless, the Command Paper is instructive again on how the UK Government perceives these jurisdictional roles to be a cause of “societal difficulties”, stating that they have “arguably increased rather than reduced tensions. They have also contributed to a false sense of separation between Great Britain and Northern Ireland, as trade arrangements operated within one part of the United Kingdom are ultimately overseen outside of it.”

Restrictions

The final requirement in Article 16 NIP is for the measures to be restricted in “scope and duration to what is strictly necessary in order to remedy the situation” with priority given to those that “least disturb the functioning of this Protocol”. This is where the UK’s proposed measures may fall short of the conditions. On the latter requirement, some of the Foreign Secretary’s proposals could address disturbances, including the promise that “goods destined for the EU undergo the full checks and controls applied under EU law” underpinned by data-sharing arrangements, and “new measures to protect the EU Single Market by implementing robust penalties for those who seek to abuse the new system”. On the other hand, provisions on governance would seem to be a major disturbance as they would dismantle the architecture established by the Protocol to enforce protection of the EU’s internal market.

The crucial stumbling block for justification of the UK’s proposals under Article 16 NIP is the former requirement of limitation in scope and particularly duration. The draft legislation would pre-empt any bilateral agreement by establishing in domestic law the changes that the UK believes should be enacted to the Protocol at least until the Northern Ireland Parliament reviews the NIP under the Article 18 consent procedure in 2024. The omission of any specific timeframe to address an immediate situation would seem to preclude reliance upon the procedural exception for “exceptional circumstances” justifying immediate application in paragraph 3 of Annex 7. The unilateral measures could be interpreted as “limited” in duration if they were regarded as a stop-gap if and until the EU and UK reach agreement. Although it seems unlikely that the UK will provide such time-limits in the domestic legislation, such a position could at least be supported by the Foreign Secretary’s claim that a negotiated solution is still the Government’s first preference.

Is there a chance to uphold international legality?

The UK has shown a cavalier attitude to its international obligations under the NIP through statements such as Brexit Opportunities Minister Jacob Rees-Mogg’s that “the Union is more important than any international agreement”. European Commission Vice-President Maroš Šefčovič responded to the Foreign Secretary’s announcement of unilateral legislation by stating that “the EU will need to respond with all measures at its disposal”. This seems to include recommencing the infringement procedure from 2020 and also rebalancing mechanisms in the TCA that have informed reports of the risk of a “trade war”. Following from the analysis above, an alternative reaction is open to the EU to uphold international legality – persuading the UK to provide notification under Article 16 NIP. This would provide a legal route for the adoption of the compromises which the EU is reportedly willing to make, for example removing certain border checks, which could be “proportionate rebalancing measures” as mandated by Article 16(2) NIP. Although understood as allowing retaliatory measures by the responding party, the provision does not exclude such measures actually functioning to facilitate the initial party’s unilateral measures. This would enable the adoption of changes to the functioning of the Protocol, such as the mooted reduction of customs checks by the EU in response to greater data-sharing by the UK, without the need for the negotiation mandate of Maroš Šefčovič to be reopened.

Crucially, if the UK’s legislation were notified as appropriate safeguard measures, Article 16 NIP does not prescribe that the EU must accept all of the measures. The reference to “priority” for those least disturbing the functioning of the Protocol implies that acceptance of some and rejection of others is possible. Therefore, the EU would be free during Joint Committee consultations to accept that certain provisions – on reduction of border checks for example – fulfil the conditions of being “appropriate safeguard measures”, while taking the view that others – most likely on jurisdiction of the CJEU – do not. This could lead to the dispute resolution mechanism under the Withdrawal Agreement involving the Joint Committee and eventually an arbitration panel. This is significant if the UK desires to avoid Joint Committee consultations; if the present course of unilateral legislation without notification under Article 16 NIP is pursued, then Joint Committee proceedings seem inevitable anyway, but under the more adversarial setting of resolving a dispute. There is still the opportunity to uphold the specific treaty framework regulating the post-Brexit EU-UK relationship, if the UK Government can be persuaded that “triggering” Article 16 NIP is in the interests not only of the Rule of Law, but also its own and the EU’s policies on Northern Ireland.