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The Legality of the Protocol

Rory Montgomery (Queen’s University Belfast/ Trinity College Dublin)

The Ireland/Northern Ireland Protocol remains deeply contentious in Northern Ireland, though fortunately since April opposition to it has not contributed to violence.

Unionists continue to demand either its abolition, or, at a minimum, a major alteration in its treatment of the movement of goods between Great Britain and Northern Ireland. Sir Jeffrey Donaldson, the new leader of the Democratic Unionist Party, has declared this to be his main political objective. The requirements of the Protocol are deemed to be disproportionate and the European Commission excessively rigid or “purist” in its implementation.

On the other side, it is argued that its negative effects are exaggerated; that as “the best of both worlds” it should enhance the attractiveness of Northern Ireland for inward investment; that it is unrealistic to expect the European Union to agree to substantial changes; and that the EU side has shown itself to be open to finding ways to reduce its impact in certain sectors.

Most debate has focussed on practical issues, such as the movement of chilled meats or medicines to Northern Ireland. Last week, the European Commission agreed to make certain adjustments, including in regard to some EU regulations, and to extend the grace period within which rules on chilled meats are not yet applicable. Despite appeals by the Irish Government to the British Government to reciprocate the EU side’s flexibility and make use of the coming months to continue technical discussions, British Ministers continue to demand more sweeping change in a way which calls into question their commitment to the Protocol.

However, another important strand of unionist argument is that the Protocol is not just inconvenient but that it also weakens the position of Northern Ireland within the United Kingdom and violates the Good Friday Agreement.

A number of prominent unionists brought a case to the High Court of Northern Ireland. On 30 June, the court rejected these arguments in a 68-page judgment. It addressed five points.

First, it acknowledged that the Protocol is not compatible with article VI of the Act of Union, requiring that all parts of the UK be on an “equal footing” in regard to trade. However, it then declared that, in a way entirely compatible with British jurisprudence and the doctrine of parliamentary sovereignty, this article has been overridden by the Withdrawal Act of 2018, which is the basis of the Protocol in domestic law.

Second, the Protocol does not breach section 1 of the Northern Ireland Act, 1998, on the principle of consent as enshrined in the Good Friday Agreement. That article makes clear that Northern Ireland will remain part of the UK unless and until a majority support a united Ireland, and is unaffected by the Protocol. Changes in aspects of the administration of Northern Ireland or in its relations with Britain are outside the scope of Article 1. By the same token, Brexit, which was opposed by a majority, does not breach the Agreement.

Thirdly, in requiring the Assembly periodically to consent to the continued operation of relevant articles of the Protocol, the British Government was legally entitled to depart from the normal requirement for a cross-community vote.

Fourthly, the fact that Northern Ireland has no role in the making of EU laws which will apply to it does not breach article 31 of the European Convention on Human Rights, on the right to vote.

Finally, the Protocol is consistent with EU law.

Some of those who took the case have said they will appeal, though on most points leave to appeal was denied. Most commentary sees the judgement as comprehensive and decisive in confirming the legality of the Protocol. That said, there needs to be sensitivity to the political and emotional force of some of the arguments. The confirmation that the Protocol is incompatible with one aspect of the Act of Union is stark and could easily be misrepresented. The Protocol does not affect the principle of consent as set out in the Agreement, but there is no doubt that it does introduce a further differentiation between Northern Ireland and the rest of the UK.

While cross-community consent in an Assembly vote may not legally be required in this particular case, and was excluded for understandable reasons, the Protocol certainly departs from the spirit of the Agreement. And the fact that in the negotiation of relevant EU legislation Northern Ireland representatives have no formal say, however negligible it might in practice be, is also regrettable. It is important that ways be found to allow for systematic consultation. In this the NSMC could play a role.

This is not to say that the Protocol can or should be set aside. But the Northern Ireland political context for its application should not be overlooked. The Irish Government has a role to play in ensuring this. Of course, the argument could more easily be made were the British Government not acting and speaking in ways which undermine mutual trust and confidence.

The fundamental cause of these difficulties is of course Brexit itself. It was inevitable that one way or another it would cause political and economic disruption in Ireland, North and South. The task remains to minimise that disruption and the further deepening of political divisions.

 

Rory Montgomery is Honorary Professor at George Mitchell Institute, Queen’s University Belfast; Visiting Research Fellow at Department of History, Trinity College Dublin. He previously served as Second Secretary General with responsibility for EU issues, including Brexit, at the Department of Foreign Affairs and Trade. Before that, he was EU adviser to Taoiseach Enda Kenny (2014-16), Ambassador to France (2013-14), Permanent Representative to the European Union (2009-13), and Political Director, dealing with foreign and security policy, (2005-9). He was a member of the Irish team which negotiated the Good Friday Agreement and the establishment of North/South institutions.

The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.

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