Northern Ireland
53The 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.
54The 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.
55The 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.
56The 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.
57The 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.
58An 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.
59The 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.
60Moreover, 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).
Clause 21: Main power in connection with Ireland/Northern Ireland Protocol
253This clause provides Ministers of the Crown with the power to implement the Protocol on Ireland/Northern Ireland (hereafter ‘the Protocol’). To that end, this clause inserts a new section 8C into the EU (Withdrawal) Act 2018.
254Subsection (1) of new section 8C confers a power on a Minister of the Crown to make legislative changes that they consider are appropriate for the purposes of implementing the Protocol. This includes supplementing the effect of the new section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of this Bill) in relation to the Protocol or dealing with matters arising out of, or related to, the Protocol. It also includes giving effect to amendments to the Withdrawal Agreement adopted by the Joint Committee falling within the scope of the particular matters that this power is intended to address.
255Subsection (2) confirms that the power allows for the regulations made under subsection (1) to make any provision that could be made by an Act of Parliament, including modifying the EU (Withdrawal) Act 2018, subject to the restrictions specified in subsection (6).
256Subsection (3) clarifies that the power may be used to make provision facilitating the access of qualifying Northern Ireland goods to the market within Great Britain.
257Subsection (4) clarifies that regulations made under subsection (3) may, among other things, provide for the recognition within Great Britain of technical regulations, assessments, registrations, certificates, approvals and authorisations issued by the authorities of a Member State or bodies established in a Member State in respect of ‘qualifying Northern Ireland goods’.
258Subsection (5) clarifies that the power can be used to restate elements of the Protocol that automatically become domestic law via clause 5 of this Bill. This type of restatement can occur where it would be helpful to provide clarity or to make the law more accessible.
259Subsection (6) places a duty on a Minister of the Crown, to define, in regulations, the term ‘qualifying Northern Ireland goods’ for the purposes of the EU (Withdrawal) Act 2018.
260Subsection (7) defines the Protocol for the purposes of the section as including any other provision of the Withdrawal Agreement that relates to the Protocol, and any provisions of EU law applied by, or referred to in the Protocol, but excludes the second sentence of Article 13(1) of the Protocol.
Clause 22: Powers corresponding to section 21 involving devolved authorities
261This clause provides a corresponding power to that at clause 21 allowing devolved authorities to make regulations to implement the Protocol in areas of devolved competence, inserting a new Part 1C into Schedule 2 to the EU (Withdrawal) Act 2018.
262Paragraph 11M(1) provides devolved authorities with the power to make legislative changes which they consider appropriate for the purposes of implementing the Protocol. This includes supplementing the effect of section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill) in relation to the Protocol or dealing with matters arising out of, or related to, the Protocol. It also includes giving effect to amendments to the Withdrawal Agreement adopted by the Joint Committee falling within the scope of the particular matters that this power is intended to address.
263Paragraph 11M(2) provides that this power can be used by a Minister of the Crown and a devolved administration acting jointly.
264Paragraph 11M(3) provides that regulations made under this power are capable of doing anything an Act of Parliament can do, subject to the restrictions specified in subsection (7).
265Paragraph 11M(4) clarifies that the power may be used to make provision facilitating the access of qualifying Northern Ireland goods to the market within GB.
266Paragraph 11M(5) clarifies that regulations made under subsection (3) may, among other things, provide for the recognition within Great Britain of technical regulations, assessments, registrations, certificates, approvals and authorisations issued by the authorities of a Member State or bodies established in a Member State in respect of qualifying Northern Ireland goods.
267Paragraph 11M(6) clarifies that the power can be used to restate elements of the Protocol that automatically become domestic law via clause 5 of this Bill. This type of restatement can occur where it would be helpful to provide clarity or to make the law more accessible.
268Paragraph 11M(7) makes the use of this power subject to the provisions of paragraph 11N (restricting the power to being exercisable only in areas of devolved competence) and paragraph 11O (certain requirements for consent, joint exercise or consultation) of the same schedule of the EU (Withdrawal) Act 2018.
269Paragraph 11M(8) defines the Protocol for the purposes of the section as including any other provision of the Withdrawal Agreement that relates to the Protocol, and any provisions of EU law applied by, or referred to in the Protocol, but excludes the second sentence of Article 13(1) of the Protocol.
270Paragraph 11N provides that the power to implement the Protocol cannot be used outside of devolved competence, as defined in paragraphs 11P to 11R, where exercised by devolved authorities acting alone.
271Paragraph 11O provides that, where a devolved authority is making a provision for the purposes of implementing the Protocol, the requirements for consent, joint exercise or consultation with the UK Government will apply where the type of provision would, if made under other powers, require UK Government consent, consultation or joint exercise of powers.
Clause 23: Protection for certain rights, safeguards etc. in Belfast Agreement
272This clause is a signpost to Schedule 3, which contains provisions relating to the implementation of Article 2(1) of the Protocol in the Withdrawal Agreement.
Clause 24: No alteration of North-South co-operation
273This clause inserts two new subsections into section 10 of the EU (Withdrawal) Act 2018 (entitled ‘Continuation of North-South cooperation and the prevention of new border arrangements’).
274New subsection (3) clarifies that a Minister of the Crown may not agree to the making of a recommendation by the Joint Committee under Article 11(2) of the Protocol in relation to recommendations as to North-South cooperation which would have the effect of:
a.altering the arrangements of North-South co-operation as provided for by the Belfast (Good Friday) Agreement 1998;
b.establishing new implementation bodies; or
c.altering the functions of an existing implementation body.
275New subsection (4) sets out that, for the purposes of this section, the definition of the Belfast (Good Friday) Agreement 1998 is that given by section 98 of the Northern Ireland Act 1998 and the definition of an implementation body is that given by section 55(3) of the Northern Ireland Act 1998.
Schedule 3: Protection for certain rights, safeguards etc. in Belfast agreement
467The purpose of Schedule 3 is to make provision for the ‘no diminution’ commitment and the arrangements necessary for the ‘dedicated mechanisms’ required under Article 2(1) of the Protocol on Ireland/Northern Ireland. That Article states that there is to be no diminution of rights, safeguards and equality of opportunity as set out in the ‘Rights, Safeguards and Equality of Opportunity’ chapter of the Belfast (Good Friday) Agreement 1998 in Northern Ireland resulting from the UK’s withdrawal from the EU, including in the area of protection against discrimination enshrined in the provisions of EU law listed in Annex 1 to the Protocol. This is to be implemented by way of ‘dedicated mechanisms’.
468Paragraph 1 highlights that the subsequent sections make amendments to the Northern Ireland Act 1998.
469Paragraphs 2 and 3 of Schedule 3 contain the following amendments to the Northern Ireland Act 1998:
a.paragraph 2 inserts a fetter into section 6(2) of the Northern Ireland Act 1998, which prevents the Northern Ireland Assembly from legislating incompatibly with Article 2(1) of the Protocol;
b.paragraph 3 inserts a fetter into section 24(1) of the Northern Ireland Act 1998 which prevents Northern Ireland Ministers and departments from acting in a way which is incompatible with Article 2(1) of the Protocol.
470Paragraphs 4 and 6 insert new subsections into section 69 and 74 of the Northern Ireland Act 1998 respectively, signposting to the new sections of that Act which set out the new functions and powers of the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI) as part of the ‘dedicated mechanisms’, as required under Article 2(1) of the Protocol.
471Paragraph 5 amends section 71 of the Northern Ireland Act 1998 to clarify the NIHRC’s ‘own motion’ standing powers to challenge the compatibility of legislation with the European Convention on Human Rights, via the Human Rights Act 1998. The combined effect of these amendments is that the criteria and restrictions set out in section 71(2B)(a)-(d) do not apply where the NIHRC brings these proceedings under section 69(5)(b) (proceedings involving law or practice relating to the protection of human rights) and the NIHRC will be able to bring these proceedings without being required to show that there would be an actual or potential victim.
472Paragraph 7 inserts new sections 78A to 78E into the Northern Ireland Act 1998 which set out the functions the NIHRC and ECNI will have as part of the dedicated mechanism.
Section 78A – NIHRC functions in relation to EU withdrawal agreement
473New section 78A of the Northern Ireland Act 1998 sets out the functions of the NIHRC as part of the dedicated mechanism.
474The NIHRC will be required to monitor the implementation of Article 2(1) of the Protocol (78A(1)). It will also be required to report to the Secretary of State and the Executive Office in Northern Ireland on the implementation of Article 2(1) of the Protocol (78A(2)) and may require them to reply to such a report and explain what steps they have taken, or are planning to take, in response to any recommendation/s contained in the report (78A(3)). Where the NIHRC makes such a report under subsection (3), the Secretary of State must lay a copy of that report before Parliament and the Executive Office must lay a copy of it before the Assembly (78A(4)).
475This section also includes a duty to advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures that ought to be taken to implement the commitment in Article 2(1) (78A(5)). The NIHRC is also required to advise the Assembly on the compatibility of proposed Assembly legislation with Article 2(1) of the Protocol (78A(6)) and to promote understanding and awareness of the importance of Article 2(1) through research and educational activities (78A(7)). This section also allows the NIHRC to publish its advice and the outcome of its research (78A(8)) and to bring any appropriate matters to the attention of the Specialised Committee referred to in Article 14(c) of the Protocol (78A(9)).
Section 78B – ECNI functions in relation to EU withdrawal agreement
476New section 78B of the Northern Ireland Act 1998 sets out the functions of the ECNI as part of the dedicated mechanism, which are the same as the functions of the NIHRC in relation to Article 2(1) of the Protocol.
477The ECNI will be required to monitor the implementation of Article 2(1) of the Protocol (78B(1)). It will also be required to report to the Secretary of State and the Executive Office in Northern Ireland on the implementation of Article 2(1) of the Protocol (78B(2)); and may require them to reply to such a report and explain what steps they have taken, or are planning to take, in response to any recommendation/s contained in the report (78B(3)). Where the ECNI makes such a report under subsection (3), the Secretary of State must lay a copy of it before Parliament and the Executive Office must lay a copy of it before the Assembly (78B(4)).
478This section also includes a duty to advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to implement the commitment in Article 2(1) (78B(5)). The ECNI is also required to advise the Assembly on the compatibility of proposed Assembly legislation with Article 2(1) of the Protocol (78B(6)) and to promote understanding and awareness of the importance of Article 2(1) through research and educational activities (78B(7)). This section also allows the ECNI to publish its advice and the outcome of its research (78B(8)) and to bring any appropriate matters to the attention of the Specialised Committee referred to in Article 14(c) of the Protocol (78B(9)).
Section 78C – Power of Commissions to bring, or intervene in, legal proceedings
479This section provides that both the NIHRC and the ECNI can bring judicial proceedings, in respect of an alleged breach (or potential future breach) of Article 2(1) of the Protocol. The NIHRC and ECNI can also intervene in legal proceedings in so far as they relate to an alleged breach (or potential future breach) of Article 2(1) of the Protocol. Subsection (2) clarifies that this does not create a new cause of action.
Section 78D – Power of Commissions to assist persons in legal proceedings
480This section enables the NIHRC and ECNI to assist a person in proceedings, or proposed proceedings, in so far they relate to an alleged breach (or potential future breach) of Article 2(1) of the Protocol.
481Subsection (2) lays out the situations in which the NIHRC and ECNI can grant an application for assistance, namely where the proceedings in question raise a question of principle, where it would be unreasonable to expect a person to pursue the proceedings without assistance due to their complexity, because of the person’s position in relation to another person involved or for some other reason, or where there are other special circumstances which make it appropriate for the NIHRC or ECNI to provide assistance.
482Subsection (3) states that where the NIHRC or ECNI grants an application for assistance, it can provide or arrange for the provision of legal advice; arrange for the provision of legal representation; and provide any other assistance which it thinks is appropriate.
483Subsection (4) provides that arrangements made for the provision of assistance may include provision to recover expenses from the person in certain circumstances.
Section 78E – Collaborative working
484This section states that the NIHRC and ECNI can arrange for any of their functions under the above sections to be carried out either by acting jointly or by one of them acting on behalf of the other.
485Paragraph 8 of Schedule 3 of this Bill adds the new sections 78A to 78E to the list of reserved matters contained in paragraph 42 of Schedule 3 of the Northern Ireland Act 1998, meaning that the Northern Ireland Assembly would only be able to legislate for the matters to which those sections relate with the consent of the Secretary of State.
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