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Northern Ireland Protocol: Mike McGrath discusses ‘solution’

The Bill to unilaterally amend the Northern Ireland Protocol was tabled in Parliament earlier this month amid controversy over whether the legislation would break international law. Emily Reid, Professor of International Economic Law and Sustainable Development at the University of Southampton, said the Bill looked to be of questionable legality and would give a huge amount of power to ministers to act instead of Parliament.

The professor added: “If Brexit is about bringing back control and parliamentary sovereignty… then it’s surprising to see so much power, potentially, handed to ministers.”

She continued: “In the absence of having invoked Article 16 of the Protocol, it’s difficult to say the nuclear option of the Northern Ireland Protocol Bill is justified.”

Professor Reid said it was also surprising that in order to address the observed problems in Northern Ireland – the fact power-sharing has collapsed and the impact on trade of the border down the Irish Sea – the Government has tabled the Bill rather than looking to trigger Article 16 of the Protocol. She said: “Article 16 of the Northern Ireland Protocol does give the right to enact or bring in safeguard measures.

“It would allow the UK to take specific action under certain circumstances in order to protect immediate interests that need to be protected. You would have thought that would have been the logical starting point.”

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Boris Johnson’s Northern Ireland Protocol Bill is hard to justify, an expert says (Image: Getty)

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An anti-protocol poster outside Larne port (Image: Getty)

However, she explained a consequence of triggering Article 16 is it leads to consultation talks between the UK and EU, of which there are differing views on the success or otherwise. Professor Reid said: “It’s possible the Government sees the big gesture or the big act as being necessary in order to move things forward.

“That would be countered by the EU which would say we’ve had a number of possible adjustments to the working of the Protocol on the table since October 2021 and these are still on the table and haven’t really been discussed.”

The Democratic Unionist Party (DUP) said it will only move to restore Northern Ireland’s regional parliament if it is sure the Bill will become law. It blocked restoration of the region’s power-sharing administration after May’s local elections, saying it would not facilitate the regional assembly sitting until all checks or planned post-Brexit checks on goods moving from Britain to Northern Ireland are removed.

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A protest in London against the protocol (Image: Getty)

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Liz Truss and Maros Sefcovic (Image: Getty)

The Government has been threatening for some time to tear up the Protocol which keeps the region under some EU rules with an effective customs border between Northern Ireland and the rest of the UK. Its aim is to prevent a back door for goods to enter the EU’s vast single market.

Whitehall has proposed a “green channel” for goods moving from Britain to Northern Ireland; the changing of tax rules and an end to the European Court of Justice’s role as sole arbiter in disputes. It also wants a dual regulatory regime, which could push up costs for business.

The Foreign and Commonwealth Office did not respond to a request for comment but Foreign Secretary Liz Truss told the Commons on Wednesday the UK is pressing ahead with the Bill due to the EU not being willing to change the Protocol, although the Government would prefer a negotiated solution with the EU. She added the Protocol needs to change to uphold the Belfast Good Friday Agreement, ensure free flow of goods from east to west and protect the north-south relationship.

However, Professor Reid argued the Bill could be challenged if it were to become law. She said: “I think the whole Bill can be challenged because under Article 4 of the Withdrawal Agreement the EU and the UK commit themselves to giving effect to the provisions of the Withdrawal Agreement and the Northern Ireland Protocol.

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A timeline of Brexit (Image: Express)

“The extent to which the Northern Ireland Protocol Bill proposes to derogate from the provisions of the Protocol could itself constitute a breach of Article 4. However, the Government would say it’s not really a breach because it’s justified by the doctrine of necessity.”

Under Article 25 of the International Law Commission’s Responsibility of States for Internationally Wrongful Acts, the doctrine of necessity allows a state to safeguard an essential interest in the event of a grave and imminent peril. Professor Reid cast doubt on its use by Government.

She said: “I think it’s difficult to establish this. The International Law Commission has a commentary on the draft article. In the commentary on the draft articles it indicates that ‘necessity’ is used in Article 25 to signal that the article is only used in exceptional cases.

“The plea can only be made when there is an irreconcilable conflict between an essential interest on the one hand and an obligation of the state invoking necessity on the other. So necessity is only rarely available to excuse non-performance of an obligation.”

A lorry arrives at Larne port in Antrim

A lorry arrives at Larne port in Antrim (Image: Getty)

She argued there would be a number of difficulties for the Government besides the absence of it having invoked Article 16 of the Protocol.

Professor Reid said: “Necessity cannot be used to address a situation that the state contributed to or helped to bring about. The challenge there for the UK is that it negotiated the Northern Ireland Protocol within the last three years.

“While one of the arguments might be the impact of the Protocol on the Good Friday Agreement, the Government, I think, is on the record as saying the Protocol safeguards and is consistent with the Good Friday Agreement. Its difficult for the Government to use ‘necessity’ given it has contributed to this particular state of affairs.”

Opposition MPs this week voiced concerns over the Bill’s potential impact. Professor Reid said with such a large Conservative majority, its passage through the Commons would depend on Tory support.

She warned: “If the consensus is that the Government’s legal advice relying on the doctrine of necessity is not particularly strong – and if the balance comes out to conclude that it’s not legal – then actually, for a country that is seeking to establish itself on the international stage and is seeking to establish new trading agreements with a whole range of partners, independently, unilaterally walking away from your obligations within two or three years of entering into them is not a great look.

“It doesn’t make you look as if you’re a reliable partner. The reputational damage might give some MPs pause for thought. It’s hard to know which direction different individuals might decide to manoeuvre in. It depends how much capital Johnson is willing or able to spend and how much he has. It’s a question for Conservative parliamentarians.”

Professor Reid said the Bill would also provoke wider collateral damage in terms of the UK’s international reputation at a time when the Government is seeking to build global Britain as an international, independent, sovereign state. She asked: “What do we want to be known for? If the UK were found to be in breach of its international obligations, then it weakens its position to hold anyone else to account for any other kind of breach.”

The EU recently launched fresh legal action against the UK in retaliation over Mr Johnson’s plans to unilaterally scrap Northern Ireland’s Brexit deal. European Commission vice-president Maros Sefcovic said the move had “no legal or political justification”.

On top of fresh legal action for alleged failures to implement the Protocol as it stands, Mr Sefcovic confirmed existing infringement proceedings, which had been paused while UK-EU talks took place, would now be resumed. He indicated more measures could follow if the Government pressed ahead with the Bill, which was signed by Mr Johnson and the EU in 2019.

Mr Sefcovic said: “Let there be no doubt: there is no legal nor political justification whatsoever for unilaterally changing an international agreement. Opening the door to unilaterally changing an international agreement is a breach of international law as well.

“So let’s call a spade a spade: this is illegal.”

The row has led some to speculate the Bill could spark a trade war, with tariffs or even the suspension of the entire Brexit deal between the UK and European Union. Professor Reid said: “I don’t think anyone wants to go back to the Cod Wars of the 1970s. The idea of trade wars is hyperbolic. It is extreme.

“But the problem is it’s really complicated. If the agreement falls apart, then it’s a mess. No one should be doing anything that undermines the peace in Northern Ireland. Then you add in the fact the UK and EU are members of the World Trade Organisation and therefore have legal obligations with regard to the way they treat all WTO member states.

“The ‘easy’ answer on one level is a free trade agreement or customs union, but the problem with that is the requirement of regulatory alignment, or you’re back at the need for customs checks.”

On whether Northern Ireland would benefit from the Bill, Professor Reid said: “In terms of trade, in terms of stability in Northern Ireland, I don’t think really anybody benefits because of the ramifications of this proposal. In terms of whether there are short term political gains anywhere, maybe. But in the medium term I don’t think anyone would benefit from the Bill passing.”