The instability of the Northern Ireland Protocol: A present threat to the Rule of Law?

Oliver Garner

On Thursday, November 11 the CEU Democracy Institute in partnership with the Embassy of Ireland to Hungary will host the event “What Is the Future of Northern Ireland After Brexit (And Why Should Europe Care?)”. RevDem editor Oliver Garner reflects here on the present threat to the Rule of Law arising from the fraught context of renegotiation of the Protocol on Ireland/Northern Ireland.

The Northern Irish question delayed Brexit for nearly a year, and saw the fall of Theresa May and the rise of Boris Johnson as UK Prime Minister. Now, it threatens the post-Brexit equilibrium between the EU and the UK.

The UK government has not yet implemented its obligations to engage in certain border checks between Great Britain and Northern Ireland, amidst political upheaval including the resignation of the Northern Irish First Minister in April, and ongoing social unrest.

The last month has seen déjà vu of the Brexit negotiations,  as the EU responded to the UK’s proposals to renegotiate the Protocol on Ireland/Northern Ireland (NIP) in the face of these difficulties. Despite the leeway offered by the EU on border checks, the UK Brexit Minister Lord Frost has maintained the UK’s red-line on ending the jurisdiction of the Court of Justice of the EU.

Speculation has been growing that the UK government may imminently trigger Article 16 NIP, which enables “appropriate safeguard measures” in the event of “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.  On 10 November, Lord Frost reiterated the UK government’s position that these conditions had been fulfilled, but also stated his belief that all other options had not yet been exhausted.

There is suspicion that this could be a pretext for the government to suspend the domestic implementation of the NIP that enables the jurisdiction of the Court of Justice of the EU, in a move similar to the controversial Internal Market Bill clauses last year.

This possibility, when first raised in October, prompted an intellectual debate on Twitter amongst UK legal thinkers on the boundaries between breach of law and undermining the Rule of Law.

The consequences of an Article 16 trigger could also have material effects for the EU-UK relationship beyond Northern Ireland, as suspension of the Trade and Cooperation Agreement has been identified as a strong form of retaliation available to the EU.

However, these hypothetical scenarios risk missing the fact that the manner in which both the UK and the EU are currently approaching implementation of the NIP poses a very real present threat to the Rule of Law structures at the international level that underpin new EU-UK relations.

First, the UK decision in March 2021 to extend unilaterally the grace periods for checks on animal products arguably constituted a breach of the Protocol. The European Commission’s infringement action in response was an attempt to uphold the Rule of Law through exercise of its ‘guardian of the Protocol’ role under Article 12 NIP.

However, the Commission’s decision to suspend this infringement action after publication of the UK’s Command Paper on 21 July suggests that international diplomacy can override the operation of the new legal framework.

This undermines legal certainty, accessibility and stability as a gap has opened up between the ‘law-in-the-books’ in the text of the Protocol, and the temporary political compromise reached between the EU and the UK. At present, individuals and businesses affected by the Protocol have no way of knowing if and when the legal situation will be settled.

Arguably, the Rule of Law is further undermined because these decisions were not taken within the pre-determined forums of the Withdrawal Agreement Joint Committee and the Committee on issues related to the implementation of the Protocol on Ireland/Northern Ireland.

The Protocol is explicit that the latter Specialised Committee should be used to discuss “any point… that gives rise to a difficulty”, and the body also has the power to make recommendations to the Joint Committee “as regards the functioning of the Protocol”. The latter then has the power to adopt decisions that “shall be binding on the Union and the United Kingdom”.

Unilateral extension of the grace periods means that suspension of the Protocol has not been enacted through these quasi-legislative “decisions”, which require mutual consent for their adoption, ensuring bilateral input legitimacy, and which can also be published by the EU and the UK, guaranteeing legal certainty for relevant stakeholders.

Bypassing the Committees has also incentivised further unilateral action beyond the scope of legal permissibility, as evidenced by the UK government’s further extension of the grace periods in September 2021.

The content of the proposed changes is particularly sensitive from a Rule of Law perspective, as the UK is advocating the removal of the jurisdiction of the Court of Justice of the EU under Article 12 NIP.

Although the EU looks unlikely to acquiesce to a wholesale removal of jurisdiction, it is particularly inimical to the Rule of Law if the judicial body which is charged with upholding the law is deprived of its authority as a result of a process that started outside the structured framework for amendment with its built-in requirements for legal certainty, accessibility, and clarity.

It seems likely that the ‘non-papers’ – EU jargon for non-legislative acts – published by the Commission, if agreed upon, will be channelled into a result that complies with the requirements of the Withdrawal Agreement. The Protocol itself provides for such a possibility. Article 13(8) states that the coming into force of a subsequent agreement between the EU and the UK can cause the Protocol to cease to apply in whole or in part.

Legal certainty and accessibility would be guaranteed through the requirement that such an agreement “shall indicate the parts of the Protocol which it supersedes”.  However, this does not alter the fact that the reform process was initiated by extension of grace periods that constitutes a continuing failure to implement legal obligations by the UK, and an abdication of responsibility to respond appropriately by the European Commission.

The proposals to reform both the substance of border checks and the institutional structure in the NIP create the danger of the EU and UK becoming entangled in a new relationship of unilateral suspension of legal obligations and interminable renegotiations, rather than stable relations through international agreements guaranteed by the Rule of Law.

At a broader level, the failure to maintain the Withdrawal Agreement that resulted from the prescribed Article 50 TEU negotiations may be regarded as undermining the objective of the withdrawal clause to ensure “an orderly withdrawal” from the EU by the United Kingdom.

Thanks to Jan van Zyl Smit for comments.

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