The Protocol on Ireland/Northern Ireland in the Withdrawal Agreement provides arrangements that ensure that the UK (including Northern Ireland) does not remain in a customs union with the European Union. The Protocol also makes arrangements seeking to ensure that there are no checks and controls conducted at or near the border between Northern Ireland and Ireland, as well as providing that the arrangements contained in the Protocol are to be subject to democratic consent in Northern Ireland in relation to their operation and continuation.
54 The Bill ensures that the rights and obligations arising under the Withdrawal Agreement will be recognised and available in domestic law by virtue of Article 4 of that Agreement and clause 5 of this Bill. This includes those rights and obligations contained within the Protocol. This effect will need to be supplemented to ensure that all of the relevant elements of the Protocol and its Annexes are given full effect in the UK legal system.
55 The Bill therefore includes provision to enable the Government to implement the arrangements necessary to comply with the Protocol to supplement these general overarching provisions. This will be done via a power exercisable by a Minister of the Crown. The Government can use this power in areas of devolved competence, but will not normally do so without the agreement of the relevant devolved administration.
56 The Bill will also include a corresponding power for the devolved authorities to take appropriate steps to give effect to the Protocol in areas which fall within their legislative competences.
57 The UK has committed, in Article 2(1) of the Protocol, to ensure that the UK’s withdrawal from the EU will not lead to any diminution of rights, safeguards and equality of opportunity in Northern Ireland, as set out in the ‘Rights, Safeguards and Equality of Opportunity’ chapter of the Belfast (Good Friday) Agreement 1998. This commitment has effect in domestic law by virtue of clause 5. Further provision is made in the Bill to give full effect to the UK’s commitment in Article 2(1), including a number of amendments to the Northern Ireland Act 1998:
a. inserting a fetter (i.e. restriction) on the legislative competence and the powers of the Northern Ireland Assembly and Northern Ireland Ministers and departments respectively, preventing them from acting in a way which is incompatible with Article 2(1) of the Protocol; and
b. giving new functions to two statutory institutions established under the Belfast (Good Friday) Agreement 1998 in Northern Ireland - the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI) - to ensure that each commission has the appropriate and necessary statutory functions, respecting their independence and distinct mandates, to take on the role of the dedicated mechanism as provided for by Article 2(1) of the Protocol.
58 An amendment is also made to the Northern Ireland Act 1998 in order to confirm the NIHRC's 'own motion' standing powers to bring proceedings under the Human Rights Act 1998.
The power referred to above to implement the Protocol may also be exercised by a Minister of the Crown to facilitate the access of qualifying Northern Ireland goods to the market in Great Britain, but cannot be exercised in such a way as to make new arrangements for North-South cooperation.
60 Moreover, the Bill makes it clear that a Minister of the Crown cannot agree to the making of a recommendation by the Joint Committee under Article 11(2) of the Protocol that would have the effect of:
a. altering the arrangements for North-South co-operation as set out in the Belfast (Good Friday) Agreement 1998; or
b. establishing a new implementation body or amending the functions of an existing implementation body (as defined in the relevant sections of the Northern Ireland Act 1998).