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:
224.Professor David Phinnemore and Dr Sylvia de Mars said that these provisions in total amounted to around 300 pieces of EU legislation.
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.”
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.”
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.”
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.
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. 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’).
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.
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, 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”. 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.
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. Any other Statutory Instrument is subject to the negative resolution procedure.
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.”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”.
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”. 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.
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”. 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.
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.
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. 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.
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.
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. 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.” 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.
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.
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:
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”. 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.”
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.
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 rulings submitted by the courts of Northern Ireland. 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.
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.” 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”.
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.
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; application and interpretation of the CJEU’s case law; and the exclusion of the UK from EU databases unless UK access is “strictly necessary”.
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. A procedure for the Joint Committee to resolve the imposition of safeguards is set out in Annex 7 to the Protocol.
261.Article 17 imposes an obligation on both parties to counter fraud and other illegal activities affecting either’s financial interests.
262.Article 19 states that Annexes 1–7 shall form an integral part of the Protocol.
181 (19 October 2019), Protocol on Ireland/Northern Ireland, Article 5(4). See European Union Committee, (1st Report, Session 2019–20, HL Paper 4), Box 1
186 (19 October 2019), Protocol on Ireland/Northern Ireland Article 12(1)
187 HM Government, Memorandum concerning the Delegated Powers in the European Union (Withdrawal Agreement) Bill for the Delegated Powers and Regulatory Reform Committee (19 December 2019): accessed 19 May 2020]. Much of the material in paras 233–237 draws directly on this memorandum.
188 See para 170.
189 HM Government, Memorandum concerning the Delegated Powers in the European Union (Withdrawal Agreement) Bill for the Delegated Powers and Regulatory Reform Committee (19 December 2019): [accessed 19 May 2020]
190 See paras 205–208. See also Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, CP 226 (20 May 2020) para 47: [accessed 22 May 2020]
191 A regulation is subject to the affirmative resolution procedure if it: amends, repeals or revokes primary legislation or retained direct principal EU legislation; establishes a public authority; relates to a fee in respect of a function exercisable by a public authority in the UK; creates, or widens the scope of, a criminal offence; creates or amends a power to legislate; or defines or facilitates the access to the market within Great Britain of qualifying Northern Ireland goods.
192 HM Government, Memorandum concerning the Delegated Powers in the European Union (Withdrawal Agreement) Bill for the Delegated Powers and Regulatory Reform Committee (19 December 2019): [accessed 19 May 2020]
199 See paras 122–123.
200 See Northern Ireland Assembly Research and Information Service, Briefing Paper: UK Fisheries Bill 2019–20 (5 March 2020): [accessed 19 May 2020]; Northern Ireland Assembly Research and Information Service, Briefing Paper: Environment Bill 2019–20 (27 February 2020): [accessed 19 May 2020] and Northern Ireland Assembly Research and Information Service, Briefing Paper: UK Agriculture Bill 2019–20 (19 February 2020): [accessed 19 May 2020]
201 (19 October 2019), Protocol on Ireland/Northern Ireland Article 12(2)
204 Letter dated 27 April 2020 from Rt Hon. Penny Mordaunt MP, Paymaster General and Minister of State, to Michel Barnier, European Commission: [accessed 27 April 2020]
205 Cabinet Office, The UK’s Approach to the Northern Ireland Protocol, CP 226 (20 May 2020) para 55: [accessed 22 May 2020]
206 Oral evidence taken on 5 May 2020, (Rt Hon. Michael Gove MP)
207 Under Article 267 of the
208 (19 October 2019), Protocol on Ireland/Northern Ireland, Article 12(4)
209 (19 October 2019), Protocol on Ireland/Northern Ireland, Article 12(5)
212 (19 October 2019), Protocol on Ireland/Northern Ireland Article 13(1)
213 (19 October 2019), Protocol on Ireland/Northern Ireland Article 13(2)
214 (19 October 2019), Protocol on Ireland/Northern Ireland Article 13(5)
215 (19 October 2019), Protocol on Ireland/Northern Ireland Article 16(1)
216 (19 October 2019), Protocol on Ireland/Northern Ireland Article 16(3)