Context

There is likely to be continuing uncertainty during 2020  as to the EU GB trade relationship after the effective exit date at the end of the year. This might lift only lift when a final agreement is entered. Alternatively, there may be a no-deal exit at the end of the period between EU and GB, with the NI Protocol kicking in at that point in time.

There will also be less certainty than might otherwise have been the case for NI to GB and GB to NI trade after the effective exit date. Even in a hard Brexit, there would have been intra- UK trade without customs barriers or procedures of any type. However, there will be some elements of procedures for GB to NI trade and to a much less extent and possibly not at all, for NI to GB trade.

There will be uncertainty as to the exact rules until they are worked out in the EU UK Joint Committee which is to take place during the transition period. This is to be done by the middle of the year.

On the other hand, there will be more certainty as to the future trade arrangements for EU (including RoI) to NI trade (and vice versa) after the effective date. The NI Protocol is to apply regardless of whether there is a Withdrawal Agreement or a no deal Brexit between the EU and UK at the end of the transition period.

The Northern Ireland Protocol will be subject to review every four years under its current terms. This provision may lead to permanent or semi-permanent uncertainty as to Northern Ireland’s trading status.

Nature of the NI Protocol

The Northern Ireland Protocol is due to “kick” in at the end of the transition period, regardless of whether there is a hard Brexit (no deal) or an agreed EU UK future relationship agreement. It is scheduled to last for an initial period of four years after it commences. The earliest date of commencement would be the end of 2020 which may be postponed until the end of 2021 or 2022, by July 2020. This end date, at which the NI Protocol commences, might be extended until later again by further amendment of the Withdrawal Agreement itself. The UK has committed to not extending.

The Northern Ireland Protocol of the EU UK Withdrawal Agreement is intended to be the long-term arrangement for Northern Ireland. Under the previous Northern Ireland backstop, Northern Ireland’s membership of the EU customs union and single market was to apply only until some alternative solutions were developed to avoid a hard border and ensure the protection of the institutions and cooperation established under the Good Friday agreement.

In contrast, the new Northern Ireland Protocol will continue for so long as it is the subject of consent every four years by a majority of Northern Ireland representatives in the Assembly or by way of alternative democratic consent

Political Opposition

A risk to the Northern Ireland Protocol lies in political opposition if it proves to be politically unacceptable. Many in Northern Ireland see the Northern Ireland Protocol as a further marginalisation of Northern Ireland within the United Kingdom and a move of Northern Ireland into the EU and Republic of Ireland sphere of influence.

The Protocol embodies some contradictions which may be ironed out over time and be less palatable when they emerge in practice. The democratic elements of the four-yearly vote help In between votes every four years, Northern Ireland is a rule-taker in relation to EU customs and regulatory rules in relation to goods. That said, most of Europe is largely a rule-taker and the rules have been in place for many years, are largely uncontroversial with minor modifications only from time to time.

There has been significant Northern Ireland civil opposition to changes in NI’s status in the past. The possibility of civil disobedience cannot be discounted. The Sunningdale Agreement of 1974 which created power-sharing institutions and the Council of Ireland (effectively an early version of the Good Friday agreement) was brought down by a very widespread strike and civil unrest. It is not beyond possibility that the current arrangements may be forced to change by reason of resistance and disruption.

Legal Challenge

A further possibility is that of a legal challenge to the validity of the Northern Ireland Protocol. This issue arises because it is included in the Withdrawal Agreement which has been entered by the European Council without approval by the member state parliaments or even requiring unanimous approval of the Council. In strict terms, the EU process for the Withdrawal Agreement is different from the EU process for a new trade agreement.

It is argued that the Northern Ireland Protocol is effectively a long-term trade arrangement. Therefore in the same way, as will be required in the case of any new EU UK future relationship agreement, it is argued that it should have been approved in a different way that would have required unanimous approval of the EU Council and different procedures and very likely,  approval of all EU parliaments and states. On this basis approval under the Withdrawal Agreement arrangements which can be done by a qualified majority of the Council (but which was in fact approved unanimously) might be argued to be invalid and outside powers of the European Union.

It has been suggested by a leading European Union professor of law that there could be a legal challenge to the Northern Ireland Protocol on this basis. It is not hard to see how disaffected interests might seek to take this challenge. Regardless of the merits of the challenge (and it may indeed have merits) the process of bringing such a case through the courts may take several years.

It may ultimately have to be referred from the UK courts up to the Court of Justice of the European Union. This may lead to the shadow of continuing uncertainty over the arrangement for a period which may last into the period when the agreement itself might take effect on the effective date of exit, such as the end of 2020, 2021 or 2022.

Consent every four years

The Northern Ireland Protocol arrangements with Northern Ireland in the EU customs regulatory and trading area (and to a large extent, also in the UK area) is subject to the consent of the people of Northern Ireland every four years. The United Kingdom has committed to putting in place legislation to ensure the consent mechanism works, regardless of whether the Northern Ireland Assembly is sitting or not.

The consent may take place by way of a vote in the Northern Ireland Assembly by a majority of all members. After the 2017 Assembly election, neither the nationalist nor unionist grouping is in the majority, so that the other members comprising neither nationalist nor unionist designated members such as the Alliance party would be influential. It may happen that in later assembly elections, either the unionist group regains a majority or the nationalist group gains a majority. I

If the Northern Ireland Assembly is not sitting (and was not operational from early 2017 to early 2020 and also for most of the time from 2000-2007) the United Kingdom has committed to providing an alternative democratic consent process. This could be a vote by the members of the legislative assembly even if it is not sitting.

The approval may last an eight-year period if it obtains the majority of designated unionist members and designated nationalist members’ consent. In this event, the matter would only arise again in a further eight-year time.

If that consent is withdrawn at any stage, it shall cease to apply two years after the end of the period concerned. In this case, the EU UK Joint Committee shall make recommendations to the EU and UK on the measures necessary, taking into account the obligations of the parties under the Good Friday agreement. This would imply a further standstill period and measures to ensure that there is no hard border in Ireland similar to those mentioned elsewhere in this chapter, including so-called alternative arrangements.

There is the possibility that the requirement for consent every four years will mean that there is permanent uncertainty hanging over Ireland/EU to Northern Ireland (and vice versa) trade. It would be reasonable to expect that the Northern Ireland Assembly will be reconstituted at some stage. Each election may be fought on the basis of trying to overturn or keep the Protocol. If example a majority of Unionist designated representatives were elected prior to the next “democratic consent” date, then there would be the impending likelihood of the removal of the Northern Ireland Protocol on the next date followed by a further period of uncertainty.

If as at present neither the nationalist nor the unionist designated members are in the majority, then everything will depend on the middle ground parties, in particular, the Alliance Party’s representatives. The very fact of voting on the issue every four years may polarise matters. The result may be that the Alliance party loses its share of the vote and that both communities are polarised to vote for expressly unionist or nationalist representatives.

Alternatives to NI Protocol

Undoubtedly any changed arrangements that might come about under the above scenarios would have to come as close as possible to frictionless trade North-South (and vice versa). The United Kingdom had announced that if there was a hard Brexit, there would be absolutely no customs controls or processes on South to North trade.

There would be (have been) processes on North to South trade, as Ireland would not be in a position to waive comply the strict EU code which has the force of law and can only be changed by the EU Council and Parliament. The suggestion is that there would have been some flexibilities and imagination used. However, if there is no Northern Ireland Protocol, some kind of border checks and arrangements would have to be put in place.

Elements of the UK Conservative party promoted a report by the so-called Alternative Arrangements Commission which wanted to put in place a special simplified customs procedure for North-South trade which would not involve checks at the border. Instead, it contemplated checks away from the border in particular at the premises of trusted traders most likely trusted logistics providers, who would undertake cross-border movements under guaranteed transit arrangements.

Enforcement of Protocol

The Withdrawal Agreement is an international treaty. It does not take direct effect in United Kingdom law. It must be implemented in United Kingdom law. The Withdrawal Agreement Act gives effect to the Withdrawal Agreement. However, the detailed rules need to be made by ministerial order.

The Withdrawal Agreement is binding on the United Kingdom in international law. It cannot be relied on directly by citizens or businesses until it is implemented in legislation in the United Kingdom. However, it is intended that the legislation will give individual rights of enforcement in Northern Ireland.

If the United Kingdom chose not to implement the Protocol or having implemented it, suspended the implementing legislation at a future date, the repercussions would be in the international sphere and would be diplomatic. There would be very significant reputational damage, as the UK has a very long record in abiding by treaties and agreements. If for some reason, the UK could not or would not implement the agreement after it was ratified, then this would have serious diplomatic and international relations consequences in terms of its dealings with the EU.

In the case of a blatant refusal by the United Kingdom to implement the Withdrawal Agreement after it has been ratified, the consequences would be political and diplomatic. It would undoubtedly affect the EU’s willingness to deal with the UK in relation to all other trade matters. In accordance with international law practice, the EU could withdraw equivalent benefits in retaliation for the breach.

The matter could be referred to a WTO dispute panel. This would be more likely in relation to a suspension of the legislation as opposed to a disagreement as to the way the legislation implements the underlying agreement. The determination of such a dispute could take a considerable length of time.

Safeguards

Because the Protocol cannot and does not make Northern Ireland part of the EU, its obligations as those between member states can be enforced only as an international treaty. That is to say, it is not as automatically binding as intra EU rights, and to some extent depends on the willingness of both sides to continue to comply.

Apart from the four-yearly vote by way of democratic consent, the Protocol itself allows either the EU or the UK to take unilateral action by way of safeguards in certain circumstances. This is something that arises in many international trade agreements to deal with unforeseen circumstances.  There may be pressure to exercise this power in a way which may undermine the Protocol.

If the application of the Protocol leads to serious economic, societal or environmental difficulties which are liable to persist or to the diversion of trade, either the EU or UK may take unilateral measures. This may involve changes in its terms, although such measures are supposed to be the least disturbing possible to the functioning of the Protocol.

If one side takes such a measure, the other side is entitled to make appropriate proportionate rebalancing measures under the Withdrawal Agreement to remedy the imbalance or change. This could be seen as a kind of retaliation or countermeasure.

Private enforcement

Apart from the above circumstances which would involve a decision by the  UK government not to enforce the Protocol or to claim not to enforce it on the basis of certain grounds alleged to be justified under the Withdrawal Agreement,  other disputes under the terms of the Withdrawal Agreement can be enforced between private parties.

This might relate for example to the manner of implementation of the Withdrawal Agreement itself or something much less than a repudiation of the agreement entirely. The NI courts would be obliged to implement the rights under the agreement, and if there was uncertainty, the matter could be referred to the European Court of Justice.

The Withdrawal Agreement binds the UK to ensure that the rights and obligations created for the benefit of individual citizens and businesses which arise under EU law and given effect by the NI Protocol can be enforced directly in the same way as at present. This would mean that many of the rules that exist, facilitating trade and prohibiting obstacles to trade can be enforced by individual traders.

Summary

This chapter describes certain issues in relation to the Northern Ireland Protocol. They are political and legal. Although the Protocol is almost certain to come into force, there may be political resistance to it when it is in force. There may also be legal challenges to the legality of the Protocol by reason of the power used to enter it.

The Protocol is subject to democratic consent every four years after it commences. Other alternatives for North-South trade, which are likely to involve some significant mitigation even in a very worst-case scenario, are discussed.

We have also set out issues regarding enforcement of rights under Northern Ireland Protocol. Unless the UK deliberately repudiates the Protocol, the new Withdrawal Agreement legislation should provide for rights to enforce it directly in the same way as EU law is enforceable directly between citizens and businesses as at present.

There is also the possibility of the UK disapplying the Protocol by reason of dislocation and security reasons. This would only apply in quite extreme circumstances and would be likely to lead to countermeasures by the EU. It might be challenged before the WTO courts.