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The Protocol on Ireland/Northern Ireland Contents

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Chapter 11: Implementation, application, supervision and enforcement, and other provisions (Articles 12, 13, 16, 17 and 19)

EU law applicable to Northern Ireland

223.The Protocol at various points sets out the provisions of EU law that will apply, directly or indirectly, to the UK in respect of Northern Ireland:

• Article 2(1): the UK shall ensure no diminution of rights, safeguards or equality of opportunity, including protection against discrimination, as enshrined in the provisions of EU law set out in Annex 1;
• Article 5(3) applies EU customs legislation to Northern Ireland;
• Article 5(4) creates a single regulatory zone for goods on the island of Ireland by applying a host of EU technical rules and product standards as set out across 38 pages of the Annex 2 to the Protocol. These areas are summarised in our January 2020 report on the Withdrawal Agreement;181
• Article 5(5): Articles 30 and 110 TFEU apply, prohibiting customs duties, internal taxation and quantitative restrictions on exports and imports between the EU and Northern Ireland;
• Article 7(1): Articles 34 and 36 TFEU (restricting quantitative restrictions on imports other than in specified circumstances), together with the law of the UK, shall govern the lawfulness of placing goods on the market in Northern Ireland;
• Article 8: The provisions of EU law on VAT and excise set out in Annex 3 are applied;
• Article 9: The provisions of EU law governing wholesale electricity markets listed in Annex 4 are applied;
• Article 10(1): The provisions of EU law on State aid set out in Annex 5 are applied;
• Article 12(4): Elements of Article 267 TFEU as regards the powers of EU institutions and agencies are applied;
• Article 13(7): Articles 346 and 347 TFEU as regards measures taken for the purposes of security are applied.

224.Professor David Phinnemore and Dr Sylvia de Mars said that these provisions in total amounted to around 300 pieces of EU legislation.182

Amendments or replacements of EU law listed in the Annexes to the Protocol

225.As we have noted in respect of the rights of individuals (see Chapter 3), Article 13(3) states that, unless otherwise provided, references in the Protocol to a Union act “shall be read as referring to that Union act as amended or replaced”. Article 15(3) sets out how the UK will be notified of such changes: within the Joint Consultative Working Group, the EU shall inform the UK about planned Union acts that amend or replace Union acts listed in the Protocol.

226.Professor Phinnemore confirmed that the UK will be committed in respect of Northern Ireland to maintaining dynamic alignment with the legislation listed in the annexes, and that the UK will not be able to block the application of that legislation, or additions or amendments to it. He noted that while much of the acquis in these areas dates from the 1960s, some elements had been brought forward in the last 10 years: “The growth areas in EU legislation are not necessarily in the free movement of goods, so we should probably not overstate how much change there will be to that body. That said, there will be changes coming through.”183

New EU legislation within the scope of the Protocol but which does not amend or replace EU acts listed in the Annexes

227.In the case of a new act that falls within the scope of the Protocol, but which neither amends nor replaces a Union act listed in the Annexes, the EU is obliged first, under Article 15(3)(b), to inform the UK through the Joint Consultative Working Group of any such planned act, and second, under Article 13(4), to inform the UK in the Joint Committee of the adoption of that act. Upon the request of either side, the Joint Committee shall hold an exchange of views within six weeks of the request on the implications of the new act for the proper functioning of the Protocol. Following this, the Joint Committee shall either a) add the newly adopted act to the relevant Annex to the Protocol, or b) where agreement cannot be reached, examine “all further possibilities to maintain the good functioning of this Protocol” and take any necessary decision. If the Joint Committee fails to take a decision within a reasonable time, the EU shall, after giving notice to the UK, be entitled to take appropriate remedial measures.

228.Professor Phinnemore said that, while the UK would be able to resist entirely new pieces of legislation, “we do not know what the implications—the possible sanctions for non-implementation—will be if the EU deems it necessary for this legislation to apply in Northern Ireland. This will all have to be worked out in the Joint Committee in due course.”184

229.Dr Sylvia de Mars also noted the option for the EU, within six months, to take remedial action, which might involve raising tariffs, trying to pull back responsibilities or different types of cooperation: “In the event that the UK does not accept any new EU law coming in, the ways in which the EU can rebalance the Protocol are very general.”185

230.Article 13(3) provides for Northern Ireland to remain subject to EU law in the Annexes to the Protocol on a dynamic basis, as they are amended or replaced. Under Articles 15(3)(b) and 13(4), the EU is also obliged to inform the UK of planned or adopted EU law that falls within the scope of the Protocol, but which neither amends nor replaces an EU act listed in the Annexes to the Protocol. Article 13(4) sets out a structured process by which the Joint Committee shall consider whether such laws should be added to the relevant Annex to the Protocol and thereby be applied to Northern Ireland.

231.While the UK is obliged to apply in Northern Ireland EU law which amends or replaces EU acts listed in the Annexes to the Protocol, it has no obligation in relation to new legislation that falls within the Protocol’s scope but does not amend or replace the EU law listed in the Annexes. However, should it fail to agree to the addition of such acts to the relevant Annex to the Protocol, the EU is entitled to take “appropriate”, but otherwise unspecified, remedial action.

232.We recommend that the Government establish a clear process to share any information it receives on planned and adopted EU law within the scope of the Protocol with the Northern Ireland Executive, Parliament, and, where relevant, the other devolved administrations.

Implementing and applying EU law in Northern Ireland

233.Article 12(1) of the Protocol states that the authorities of the UK will be responsible for implementing and applying the provisions of EU law that will be applied to Northern Ireland by the Protocol.186 The means of doing so is set out in the European Union (Withdrawal Agreement) Act 2020 (‘the 2020 Act’), and through the insertions it makes to the EU (Withdrawal) Act 2018 (‘the 2018 Act’).187

234.The rights and obligations arising under the Withdrawal Agreement are available in domestic law by virtue of new section 7A of the 2018 Act, inserted by section 5 of the 2020 Act. This includes those rights and obligations contained within the Protocol and its Annexes, meaning that some provisions in the Protocol will not require any further domestic legislation. For example, the obligation on the UK, under Article 2(1) of the Protocol, to ensure that no diminution of the rights set out in the Belfast/Good Friday Agreement results from the UK’s withdrawal from the EU, is given effect in domestic law through new section 7A of the 2018 Act.

235.However, there will also need to be further domestic legislation to ensure that the Protocol is given full effect in the UK. The UK will be required to set up the framework necessary to give effect to the obligations contained in the Protocol. Furthermore, the provisions of Article 13(3) mean that domestic legislation will need to be amended as the Directives listed in the Annexes evolve. Section 21 of the 2020 Act therefore inserts new section 8C(1) into the 2018 Act, in order to provide a power to Ministers required to give effect to parts of the Protocol which require further implementation.

The responsibilities of the UK Government and the Northern Ireland Executive

236.Sections 21 and 22 of the 2020 Act state that a UK Minister or a devolved authority (including a Northern Ireland Executive Minister), either acting alone or jointly, may make regulations to give effect to the Protocol. The Act does not define precisely the circumstances in which each of these options will be utilised, save that only a UK Minister may by regulations define “qualifying Northern Ireland goods” for the purposes of the 2018 Act,188 and a devolved authority may only make a regulation alone if it falls within its devolved competence. The Government has also reiterated the terms of the Sewel Convention, that it will “not normally use the power to amend domestic legislation in areas of devolved competence without the agreement of the relevant devolved administration”.189 It has also confirmed that the Northern Ireland Executive will have primary responsibility for implementing the provisions of the Protocol covering the Single Electricity Market.190

237.The 2020 Act also specifies circumstances in which the necessary Statutory Instruments must be subject to the affirmative resolution procedure, at Westminster and/or the Northern Ireland Assembly (and other devolved legislatures), as applicable.191 Any other Statutory Instrument is subject to the negative resolution procedure.192

238.Dr Sylvia de Mars said that, from a legal standpoint, the Protocol, as an international agreement, was wholly the UK Government’s responsibility: “That said, the EU will be wholly ambivalent about who in practice regulates. It does not care as long as it gets done, so it can be the responsibility of the Executive.”193 Colin Murray agreed that, while the Northern Ireland Executive could give effect to EU law within its competence, “the [legal] obligation will continue to rest with the UK as the state responsible for Northern Ireland”.194

239.Colin Murray said that the powers set out in sections 21 and 22 were “skeletal” as regards the respective responsibilities of the UK Government and the Northern Ireland Executive, although he assumed that the devolved institutions would deal with matters of devolved competence. He also noted that they allowed “some opportunity for shared competences”.195 Dr Gravey observed that there was some overlap between reserved and devolved competence, and in some areas it was not really clear where the competence currently lay.196

240.Colin Murray expressed concern over the capacity of the Northern Ireland Executive to deal with Protocol-related issues. He also noted the “fragility” of the power-sharing institutions, which have only just been re-established. He suggested that the UK Government would therefore be obliged to step in if the Northern Ireland Executive “did not find itself in a position to fulfil its EU obligations”.197 Dr Viviane Gravey noted that, when the UK was in the EU, if Northern Ireland had devolved competence to implement a piece of legislation and was found to be in breach, legally and internationally the UK was in breach but the fine was taken from the block grant.198

241.Sections 21 and 22 of the European Union (Withdrawal Agreement) Act 2020 provide for UK Ministers or the Northern Ireland Executive (and other devolved authorities) to make regulations to implement the Protocol, either alone, or together.

242.We invite the Government to set out the likely scale of the regulations required before 1 January 2021 to give effect to the obligations contained in the Protocol that it intends a) to make alone, b) to invite the Northern Ireland Executive (or other devolved authorities) to make, and c) to make jointly with the Northern Ireland Executive (or other devolved authorities). We also invite the Government to set out its criteria for deciding which of these approaches will be adopted. In particular, the Government should explain the rationale for making regulations jointly with the Northern Ireland Executive (and other devolved authorities), and the principles underpinning the emerging concept of shared competence in the context of the Protocol.

243.We call on the Government to set out the process by which it will consult and notify the Northern Ireland Executive and other devolved authorities on its proposed approach to making domestic regulations required under the Protocol. We also invite the Government to set out what action it will take if Northern Ireland Executive Ministers (or other devolved authorities) are unwilling or unable to make regulations necessary to implement the Protocol.

Primary legislation

244.In addition to the powers to make regulations, issues relating to the implementation of the Protocol are relevant to at least three further pieces of primary legislation currently before Parliament: the Agriculture Bill, the Environment Bill and the Fisheries Bill.199 The Northern Ireland Assembly Research and Information Service has published briefing papers on each of these bills, setting out the need for clarity on whether, and if so how, they take account of and are compliant with the terms of the Protocol. They have also raised queries concerning the potential for such legislation to lead to divergence between Northern Ireland and the rest of the UK, given the requirements of the Protocol as regards the application of EU law in these fields.200

245.We note concern that the Agriculture Bill, the Environment Bill and the Fisheries Bill will lead to regulatory divergence between Northern Ireland and the rest of the UK in these areas. We therefore call on the Government to explain the interaction between these bills and the Protocol, and to set out whether, and if so how, these bills are compliant with the terms of the Protocol. We also invite the Government to confirm whether or not it anticipates issues of compliance with the Protocol arising in relation to any other current or planned primary legislation.

EU supervision of the implementation and application of the Protocol

246.Article 12(1) states that UK authorities shall be responsible for implementing and applying EU law applicable to Northern Ireland under the Protocol. Nevertheless, Article 12(2) states that EU representatives will have a right to be present at “any activities of the United Kingdom related to the implementation and application of provisions of Union law made applicable” by the Protocol, as well as activities related to the implementation and application of Article 5, on customs and movement of goods. The UK shall facilitate such presence, and, upon request, carry out control measures in individual cases for duly stated reasons.

247.The UK shall also provide, upon request, all relevant information relating to such activities, and the EU and UK authorities will “exchange information … on a monthly basis” on the customs arrangements pertaining to goods moving from Great Britain into Northern Ireland and those governing goods at risk of subsequently moving into the EU.201 Article 15(3) suggests that this exchange of information will take place in the Joint Consultative Working Group. Article 12(3) states that the Joint Committee shall determine the practical working arrangements for such exercise of the rights of EU representatives.

248.The Protocol does not specify if the exercise of such rights is confined to Northern Ireland, or if EU representatives can also exercise such rights in relation to measures in Great Britain falling within the scope of the Protocol.

249.Dr Sylvia de Mars said that it remained to be seen how intensive the EU’s systems of supervision would be, but the EU “has the right to send them to stand there with clipboards and take notes on whatever they see fit”. Colin Murray agreed that “the Commission has very broad powers in terms of point inspection … The Commission will be very alive to any move to de-align regulations between the UK and the EU.”202 Dr Viviane Gravey also said that, given how seriously it takes SPS controls, the EU was likely to treat such supervision in the same vein.203

250.Article 12(2) of the Protocol gives EU representatives the right to be present during relevant activities of the authorities of the UK, and obliges the UK to facilitate this presence, provide all relevant information, and to carry out control measures in individual cases for duly stated reasons. While the scale of the EU’s supervisory activity remains to be seen, its potential scope is broad, particularly given the emphasis placed by the EU and its Member States on the need to protect the integrity of the EU Single Market.

251.We call on the Government to confirm whether the EU is able to exercise such rights only within Northern Ireland, or also within Great Britain in relation to measures taken under the Protocol.

The request to open an EU office in Northern Ireland

252.In February and March 2020, the Secretary General of the European External Action Service, Helga Schmid, and the EU’s Chief Brexit Negotiator, Michel Barnier, twice wrote to the Permanent Secretary of the Foreign and Commonwealth Office, Sir Simon McDonald, asking for permission for the EU to open a Belfast office of the EU Delegation to the UK. On 27 April, the Paymaster General, Rt Hon. Penny Mordaunt MP, replied, stating:

“The UK cannot agree to the permanent EU presence based in Belfast which you propose. While Article 12 gives EU officials the right to be present during the activities of UK authorities related to the implementation and application of the Protocol, we do not accept that that necessarily requires an EU Delegation office in Belfast, or indeed any other permanent EU presence in Northern Ireland. Such work can be undertaken by other means, for example through ad hoc visits, which we would of course facilitate as necessary.”

253.Ms Mordaunt wrote that the Government rejected the request on three specific grounds:

• Given that proposals for joint UK-EU controls were consistently rejected by successive UK Governments, a permanent EU office with permanent staff whose primary purpose would be to engage in a form of supervision of UK implementation of the Protocol “is not consistent with the delicate balance of rights and responsibilities, on both Parties, set out in the Protocol.”
• The proposal would be politically divisive between the political parties and communities in Northern Ireland: “Both parties should therefore work to find a way to implement the Protocol’s requirements which is less contentious and more likely to deliver the necessary results.”
• While the Protocol states that the working arrangements will be determined by the Joint Committee, these discussions have yet to take place.204

254.The Government subsequently confirmed in its Command Paper that, for the purposes of Article 12, “the UK Government will not agree to a permanent EU presence in Northern Ireland”.205 Mr Gove told us:

“Does the EU want to establish a diplomatic mission in Northern Ireland? If so, why not establish one in Edinburgh or Cardiff? The key thing also is that the Belfast Agreement is at the core of why the Protocol is necessary, and the presence of an EU mission of the kind outlined has certainly excited a degree of concern among the majority community in Northern Ireland.”206

255.We note the EU’s request to open a Belfast office of the EU Delegation to the UK to allow EU officials to undertake the tasks envisaged under Article 12(2) of the Protocol, and the Government’s response. The disagreement on this issue is indicative of the lack of trust between the two sides. Yet the central issue is one of modalities, not principle: what matters is that EU technical staff can do their jobs so as to minimise delay and disruption. It is incumbent on the Joint Committee to find an early solution, satisfactory to all communities in Northern Ireland.

The jurisdiction of the CJEU and the EU’s executive agencies

256.The Protocol will also confer full jurisdiction on the CJEU to oversee the operation of EU law applying to Northern Ireland in relation to customs and the movement of goods, technical regulations, VAT and excise, the Single Electricity Market and State aid; including the jurisdiction to hear applications for preliminary rulings207 submitted by the courts of Northern Ireland.208 The UK will have the right to participate in these proceedings as if it were a Member State. The EU’s executive agencies will also enjoy their normal powers within Northern Ireland in relation to these fields.209

257.Dr Sylvia de Mars said that the CJEU “still has the jurisdiction over the UK with respect to Northern Ireland that it has over the member states, which is to say on infringement proceedings and then an ability to fine. The Commission can chase up these things if there is a lack of compliance.”210 Colin Murray observed that because the enforcement proceedings only cover specific Articles of the Protocol, “it is a very specific remedy focused on the protection of the European single market”.211

258.Northern Ireland’s compliance with EU rules in relation to customs and movement of goods, technical regulations, VAT and excise, the Single Electricity Market and State aid will be policed and enforced by the European Commission, the EU’s executive agencies and the CJEU, including the possibility of infringement proceedings and the imposition of fines for State liability. Save for the UK’s right to participate in Northern Ireland-based CJEU proceedings, this enforcement will take place without the additional privileges inherent in EU membership, such as membership of and full participation in the EU’s institutions and agencies.

Article 13: Common provisions and safeguards

259.Article 13 deals with common provisions and essentially addresses the practicalities of the Protocol’s operation. We have already noted the provisions of Article 13(3) that any reference to a Union act, unless otherwise provided, “shall be read as referring to that Union act as amended or replaced”; of Article 13(4) concerning the adoption of a new act that falls within the scope of the Protocol, but which neither amends nor replaces a Union act listed in the Annexes to the Protocol; and of Article 13(8), regarding the impact of the Protocol of any subsequent agreement between the EU and the UK. Other matters covered include territorial scope;212 application and interpretation of the CJEU’s case law;213 and the exclusion of the UK from EU databases unless UK access is “strictly necessary”.214

Article 16: Safeguards

260.Article 16 enables either party to the agreement to take unilaterally “appropriate safeguards” if the application of the Protocol leads to “serious economic, societal or environmental difficulties”. Such safeguards must be “restricted” in their scope and “strictly necessary” to remedy the precise situation.215 A procedure for the Joint Committee to resolve the imposition of safeguards216 is set out in Annex 7 to the Protocol.

Article 17: Protection of financial interests

261.Article 17 imposes an obligation on both parties to counter fraud and other illegal activities affecting either’s financial interests.

Article 19: Annexes

262.Article 19 states that Annexes 1–7 shall form an integral part of the Protocol.

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