The Northern Ireland Protocol: A Long-Term Solution to the Economic, Legal, and Political Impacts of Brexit on Northern Ireland?
| Pages | 1-27 |
| Date | 01 October 2022 |
| Published date | 01 October 2022 |
| Author | Scott Morrison |
The Northern Ireland Protocol
1
Cambridge Law Review (2022) Vol VII, Issue 2, 1–27
The Northern Ireland Protocol: A Long-
Term Solution to the Economic, Legal, and
Political Impacts of Brexit on Northern
Ireland?
SCOTT MORRISON
ABSTRACT
The Northern Ireland Protocol is the solution agreed by the European Union and
the United Kingdom to the unique problems arising as a result of Brexit on the
island of Ireland. The Protocol preserves the “soft” border between Ireland and
Northern Ireland and ensures the all -Ireland economy will remain undistorted.
In contrast, trade between Northern Ireland and Great B ritain is now subject to
onerous customs duties and tariffs, as a result of Northern Ireland’s de facto
continuing membership of the European single market. This article examines the
key aspects of the Protocol—economic, legal, and political—and seeks to
demonstrate that the Protocol is far from a perfect solution to the situation in
Northern Ireland.
Keywords: Northern Ireland, European Union, United Kingdom, constitutional law, Brexit
I. INTRODUCTION
A. OVERVIEW
“‘History,’ Stephen said, ‘is a nightmare from which I am trying to awake.’”
1
LLM Candidate (Durham University), LLB (Durham University). I am grateful to the an onymous reviewers for
their comments on earlier drafts. Any errors that remain are my own.
1
James Joyce, Ulysses (Oxford World’s Classics 2008) 34.
2
Cambridge Law Review (2022) Vol VII, Issue 2
As of 2022, it would appear that the nightmare of history has once agai n
descended on Northern Ireland. Ironically, the Northern Ireland Protocol,
2
one
of the causes of the new troubles the region finds itself in, was designed to prevent
further violence.
3
The Protocol is a unique solution to a unique problem arising
from Brexit, keeping Northern Ireland de facto aligned with the EU’s single market
and customs union in the interests of avoiding a hard border on the island of
Ireland and preserving the Northern Irish peace process.
This introduction consists of two parts. The first will explain the Brexit
process and how the Protocol became a necessary solution. The second will explain
the context of the problems in Northern Ireland and why the Protocol was needed
to avoid reigniting tensions between its communities.
The United Kingdom of Great Britain and Northern Ireland (UK) voted
to leave the European Union (EU) in a referendum on 23 June 2016.
4
On 29
March 2017, the then UK Prime Minister Theresa May formally notified the then
President of the European Council, Donald Tu sk, that the UK wou ld invoke
Article 50 of the Treaty on European Union (TEU), so beginning a two -year
process of negotiations which would cu lminate in the UK leaving the EU on 29
March 2019.
5
Two years of negotiations aimed at concluding a withdrawal
agreement followed.
6
The leaders on the European side agreed to a withdrawal
agreement on 25 November 2018, whereas the UK Parliament did not vote for the
agreement, leading to two extensions of the Article 50 deadline: the first date being
31 October 2019. Complicating this was Theresa May resigning in May 2019, an
event brought about by May failing to get enough support in the UK Parliament
for the deal she negotiated. Her successor as prime minister, Boris Johnson,
negotiated a revised withdrawal agreement and called elections for 12 December
2019, which he won by a significant majority. The UK subsequently withdrew from
the EU on 31 January 2020, which was the new date agreed upon after May’s
resignation.
7
2
‘Revised Protocol on Ireland and Northern Ireland included in the Withdrawal Agreemen t’ (European
Commission, 17 October 2019) and-northern-
ireland-included-withdrawal-agreement_en> accessed 13 March 2021.
3
Molly Blackall, ‘Northern Ireland’s first minister joins calls for calm after Belfast riots’ The Guardian (London, 3
April 2021)
after-belfast-riots> accessed 15 April 2021.
4
Steven Erlanger, ‘Britain Votes to Leave EU; Cameron Plans to Step Down’ The New York Times (New York City,
23 June 2016)
referendum.html> accessed 14 February 2021.
5
Stephen Castle, ‘UK initiates ‘Brexit’ and Wades Into a Thorny Thicket’ The New York Times (New York City, 29
March 2017) uk-eu-article-50.html> a ccessed 19
April 2021.
6
Paul Craig and Gráinne de Búrca, EU Law: Text, Cases and Materials UK Ver sion (7th edn, Oxford University Press
2020) 24.
7
ibid 24–25.
The Northern Ireland Protocol
3
The final Withdrawal Agreement
8
was agreed between the two parties, to
which a specific protocol was added, the Northern Ireland Protocol.
9
The purpose
of the Protocol is t o avoid a hard border on the island of Ireland, protect the all -
island economy and the Good Friday Agreement
10
in all its dimensions, and
safeguard the integrity of the EU single market.
11
The protocol acknowledges the
unique circumstances arising from the UK’s withdrawal from the EU on the island
of Ireland.
This article shall argue the Northern Ireland Protocol does not amount to
a complete solution, particularly with respect to addressing challenges that arise
in the UK’s internal market and the potential incompatibility of certain aspects
with the Good Friday Agreement. Therefore, this article shall adopt a critical
stance towards the Protocol as needing reform to be a long-lasting solution to the
problems caused by Brexit on the island of Ireland.
This article is divided broadly into three parts: the first part focuses on the
Protocol’s attempted solution to the economic impact of Brexit on Northern
Ireland; the second part focuses on the Protocol’s provisions for the continued role
of EU law and the C JEU in Northern Ireland; and the third part focusses on the
Protocol’s attempted solution to the political problems brought about by Brexit
and attempts to articulate and offer alternative solutions. Some contextual
information relating to why the Protocol was agreed by the EU and the UK and
an overview of the relevant legislation will be provided before the article focusses
on the main economic, legal, and political issues.
B. CONTEXT OF THE IRISH BORDER QUESTION
A crucial issue in the Brexit negotiations was that of the border between
Ireland and Northern Ireland, as Brexit meant Northern Ireland would no longer
be part of the territory of the EU, while Ireland remained a member. This meant
the need for border checks, customs, and so on, as the border between Ireland
and Nort hern Ireland essentially became an EU external border; however, the
problem was that because of Northern Ireland’s history of confli ct, it was felt that
a hard border in t his region would antagonise one of Northern Ireland’s
traditional communities, the Irish Catholics,
12
who see themselves as Irish, and
wish for an all-Ireland independent state. The other traditional community are
8
Agreement on the withdrawal of the United Kingdom of Great Britain and Northern I reland from the European
Union and the European Atomic Energy Community [2019] OJ C-384I/01.
9
In international law, a protocol is a treaty that adds to or supplements a pre -existing treaty.
10
The Belfast Agreement’ (Northern Ireland Office, 10 April 1998)
11
The EU-UK Withdrawal Agreement’ (European Commission, date unavailable)
united-kingdom/eu-uk-withdrawal-agreement_en> accessed 13 March 2021.
12
Also referred to as ‘nationalists’ or ‘republicans’.
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Cambridge Law Review (2022) Vol VII, Issue 2
the Ulster Protestants,
13
who would prefer Northern Ireland to remain an integral
part of the United Kingdom.
Boris Johnson may have dismissed the border dilemma as “the tail wagging
the d og”,
14
however, this matter was of profound significance to the citizens of
Northern Ireland and Ireland, due to a long history of division, violence, and
ethnic hatred between the island’s two traditional communities. The most recent
iteration of this centuries-long conflict only formally ended in 1998 with the
signing of the Good Friday Agreement, though sporadic acts of violence continue
to this day. One of the solutions to the conflict was to allow all persons born in
Northern Ireland to choose Irish or British citizenship, or both, if they so wished.
A Common Travel Area between the UK and Ireland had existed since the 1920s,
meaning no customs or passport checks at the border, though the Troubles
15
meant crossing the border entailed checks from the British and Irish security
forces. The withdrawal of most British troops from Northern Ireland in 2007
meant that crossing the border was seamless, a fact no doubt helped by both the
UK and Ireland being EU member states. Brexit meant it was not possible to retain
this status quo, and so all parties to the negotiations regarding t he Withdrawal
Agreement sought to ensure the UK’s withdrawal from the EU would not result
in a “hard border”, that is to say, that it would not result in customs and passport
checks.
Membership of the EU and its single market allows citizens, goods, services,
and capital originating from the member states to move freely within EU
territory.
16
Membership of the customs union means no tariffs or barriers to trade
with other members. These two aspects of the Protocol ensure trade on the island
of Ireland remains unfettered.
That Ireland and the United Kingdom were both members of the EU
allowed what was formerly a hard and militarised border to become an invisible
one.
17
During the Brexit negotiations, the UK government decided not to retain
membership of the single market. As a consequence, it quickly became apparent
that a radical new solution was needed in order to allow the UK to leave the single
market and customs union; keep the Irish border free of physical infrastructure;
13
Also referred to as ‘unionists’ or ‘loyalists’.
14
Ferghal Blaney, ‘Boris Johnson slammed over ‘tail wagging the dog’ comments on Irish border Brexit iss ue’ Irish
Mirror (Dublin, 8 June 2018)
tail-12668455> accessed 14 February 2021.
15
The name commonly given to the most recent iteration of the conflict in Northern Ireland, wh ich lasted from
approximately 1968 until 1998.
16
Nikos Skourtaris, ‘What’s in an Irish Border? Brexit, the Backstop(s), and the Constitutional I ntegrity of the UK’
(DCU Brexit Institute, February 24 2020) < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3 543514>
accessed 14 February 2021.
17
ibid.
The Northern Ireland Protocol
5
and maintain the integrity of the EU’s single market and legal order.
18
The
Protocol was designed by the EU and the UK to achieve all of those targets.
The next section of this introduction will provide an overview of the
relevant legislation from the perspectives of the EU and the UK.
C. AN EXPLANATION OF THE IMPORTANT LEGISLATION
The main EU pieces of legislation, vis-à-vis Brexit and Northern Ireland,
are the Withdrawal Agreement;
19
the Northern Ireland Protocol;
20
and the Trade
and Cooperation Agreement (TCA).
21
The Withdrawal Agreement and t he
Northern Ireland Protocol were adopted at the end of 2019. They regulate the
terms of the UK’s withdrawal from t he EU. The Protocol is a special appendix to
the Withdrawal Agreement regarding Northern Ireland’s status after Brexit. The
TAC was agreed in December 2020. It shall govern the future relations of the UK
as a non-member state with the EU. One of the key provisions of the Protocol is
Article 5, which outlines the role for the joint committee. The joint committee
consists of representatives of the EU and the UK who, in the event of any issues
occurring with the functioning of t he Protocol, shall meet and attempt to find an
acceptable solution.
From the UK’ s point of view, there are four principal statutes relating to
Brexit: the European Union (Withdrawal) Act 2018,
22
which retains EU law in the
UK legal system so as to allow legal continuity, the European Union (Withdrawal
Agreement) Act 2020,
23
which gives effect in UK law to the revised legal
agreement, the United Kingdom Internal Market Act 2020,
24
which concerns
trade between the different nations of the UK, necessitated by the Northern
Ireland Protocol, which is the focus of this article, and the European Union
(Future Relationship) Act 2020,
25
which implements the December 2020 EU-UK
Trade and Cooperation Agreement
26
into the UK domestic legal order. These
pieces of British legislation shall be mentioned lat er in the section regarding the
role of EU law under the Protocol. The British government flirted with breaking
18
ibid.
19
Withdrawal Agreement (n 8).
20
Northern Ireland Protocol (n 2).
21
Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community,
of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the o ther part (European
Commission, 24 December 2020)
uk_trade_and_cooperation_agreement.pdf> accessed 18 April 2021.
22
23
European Union (Withdrawal Agreement) Act 2020 c.1.
24
United Kingdom Internal Market Act 2020 c.27.
25
European Union (Future Relationship) Act 2020 c.29.
26
Trade and Cooperation Agreement Between the European Union and the European Atomic Energy Co mmunity,
of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the o ther part [2020] OJ L444.
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Cambridge Law Review (2022) Vol VII, Issue 2
international law in introducing the Northern Ireland Protocol Bill in Parliament.
As a consequence of the actions of the British government, trust between the EU
and the UK is currently low.
II. THE IMPACT OF BREXIT AND THE PROTOCOL ON THE
ECONOMY OF NORTHERN IRELAND
A. NORTHERN IRELAND’S DE FACTO MEMBERSHIP OF THE
SINGLE MARKET AND CUSTOMS UNION
The document adopted by the EU and the UK regarding the future of Northern
Ireland and Ireland’s relationship with each other and the EU is titled “The
Protocol on Ireland-Northern Ireland.” It is attached to the withdrawal
agreement. In order to achieve the aims agreed upon regarding the island of
Ireland, the parties to the negotiations agreed that Northern Ireland shall de facto
remain attached to the EU’s customs union and its internal market, and committed
to its rules and institutions, while the remaining t erritory of the United Kingdom
shall leave these institutions, and EU law shall have no effect in that territory,
beyond the date of Brexit. The EU did not insist on such an outcome because of
pure altruism. It had an interest in safeguarding its fiscal interests and regulations.
Had the border between Northern Ireland and Ireland remained “soft,” in the
sense that there were no customs or border posts, without measures safeguarding
the integrity of the EU’s institutions and regulations, there was a risk that goods
and persons could have entered the EU without the necessary checks being made.
The government of Ireland sat at the table as a negotiator on the side of the EU
and had an interest in avoiding a hard border and preserving the peace process.
27
The first problem with the Protocol is that it is extremely complicated.
While Northern Ireland remains de facto within the EU single market and customs
union and committed to some, but not all, of the EU’s l aws, the island of Great
Britain does not.
28
The Protocol has created uncertainty with regards to Northern
Ireland’s status. It remains “attached to the EU’s customs union but with additions,
while it is associated with the EU’s internal market but with subtractions.”
29
Article
4 of the Protocol states in plain English: “Northern Ireland is part of the customs
territory of the United Kingdom.” Simple enough, it is clear that Northern Ireland
would be part of any future trade agreement the UK government chose t o
27
Lisa O’Carroll, ‘Leo Varadkar: Brexit has undermined Good Friday agreement’ The Guardian (London, 3 November
2018) has-un dermined-the-good-friday-
agreement> accessed 27 April 2021.
28
Northern Ireland Protocol (n 2).
29
ibid.
The Northern Ireland Protocol
7
conclude, though other aspects of the Protocol complicate things.
30
This is an issue
as Northern Ireland is subject to the EU law regime; t his could potentially be
complicated by the UK as a whole entering into a trade agreement which would
contradict the Protocol.
An example of the Protocol complicating things would be the rules
regarding customs duties. Article 5(1) of the Protocol provides that customs duties
shall only be payable on goods moving from Great Britain into Northern Ireland
if that good is at risk of being moved into the European Union, “whether by itself
or formin g part of another good followin g processing.” Goods arriving from a
third country, such as Canada, would also be subject to an EU tariff if they were
“at risk”.
31
This all seems innocuous. The problem is that the burden of proof will
be on the importer or trader, who must prove (a) that the goods in question will
not be subject to commercial processing in Northern Ireland; and (b) that they
fulfil the criteria established by the joint committee in accordance with the fourth
subparagraph. These are: (a) the final destination and use of the good; (b) the
nature and value of the good; (c) the nature of the movement; and (d) the incentive
for undeclared onward movement into the EU, in particular incentives resulting
from the duties payable pursuant to paragraph 1. The definition of “commercial
processing” is overly broad. “Commercial processing” is considered to be “an y
alteration […] or transformation of goods in any way.” Even if commercial
processing and end consumption take place entirely within Northern Ireland,
there is still the likelihood of having to pay duties. An example would be of a widget
maker in Belfast who imports components from an English supplier. This widget
maker would now be liable to pay EU customs duties, as by using those
components to make widgets he will subject them to a form of processing—it does
not matter if the product actually enters the EU or not.
32
The definition in (b) has
still to be defined and should no definition arise, it will be assumed that all goods
in Northern Ireland are at risk of entering the EU. This seems like overreach. This
rule preserves the integrity of the EU’s internal market at the expense of the
UK’s.
33
Moreover, Great Britain accounted for 60 per cent of all goods imported
into Northern Ireland in 2018, more than four times the amount imported from
Ireland.
34
While preserving the Northern Ireland peace process was one of the
30
Alfred Artley and George Peretz, ‘Customs and the Northern Ireland Protocol’ (Monckton Ch ambers, 17 April
2020) < https://www.monckton.com/wp-content/uploads/2020/04/TJ_2020_Issue14 83_Apr_Peretz-002.pdf>
accessed 13 November 2020.
31
ibid.
32
Artley and Peretz (n 30).
33
Stephen Weatherill, ‘The Protocol on Ireland/Northern Ireland: protecting the EU’s internal m arket at the expense
of the UK’s’ (2020) 45(2) European Law Review 222.
34
Padraic Halpin and Kate Holton, ‘Northern Ireland looks south as Brexit takes bite out of UK trade links’ (Reuters,
23 December 2020) eu-nireland/n orthern-ireland-looks-south-as-
brexit-takes-bite-out-of-uk-trade-links-idUSKBN28X0Q3> accessed 11 January 2021.
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Cambridge Law Review (2022) Vol VII, Issue 2
EU’s stated aims with regards to the Protocol, what the Protocol could do to
Northern Ireland’s economy is concerning. By hampering its ability to trade with
its largest partner, Great Britain, there runs the risk of placing an already deprived
region into further economic pressure. While the decision to ensure the border
remained as it was prior to Brexit deserves praise, it d oes seem that the interests
of the nationalist population
35
were placed above those of the unionists, who favour
close political and economic ties wi th Great Britain. It was not the EU’s fault that
the British government was ideologically committed to withdrawing from the EU
as well as the s ingle market and customs union. Had the entire United Kingdom
remained in the customs union and single market, the problem with regards to
Northern Ireland being unable to trade with its largest market would not have
arisen. It is unfortunate that both the UK and the EU were so committed to their
targets—the UK leaving the EU entirely and the EU preserving the integrity of its
single market—that it became impossible to reconcile the red lines of the UK and
the EU in the negotiations, and the interests of Northern Ireland were
undermined.
Article 5(3) of the Protocol reveals that the entirety of EU customs law shall
apply in Northern Ireland.
36
Although the Preamble to the Protocol,
37
Article 4 of
the Protocol,
38
and Prime Minister Johnson all claim differently,
39
Northern
Ireland is de facto part of the EU’s customs territory.
B. THE ARTICLE 16 SAFEGUARD MECHANISM AND ITS
POTENTIAL TO IMPACT THE ECONOMY OF NORTHERN
IRELAND
Article 16(1) of the Northern Ireland Protocol provides: “If the application
of this Protocol leads to serious economic, societal, or environmental d ifficulties
that are liable to persist, or to diversion of trade, the Union or the United Kingdom
may unilaterally take appropriate safeguard measures, Such safeguard measures
shall be restricted with regard to their scope and duration to what is strictly
35
Namely to prevent a hard border and maintain the all-Ireland economy.
36
Artley and Peretz (n 30).
37
The Preamble states: ‘Noting that nothing in this Protocol prevents the United Kingdom from ensuring unfettered
market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market;’ and
‘Recalling that Northern Ireland is part of the customs territory of the United Kingdo m and will benefit from
participation in the United Kingdom’s independent trade policy.’
38
Article 4 of the Protocol provides: ‘Northern Ireland is part of the customs territory of the United Kingdo m.’
39
See Patrick Daly and Megan Baynes, ‘Johnson tells Northern Ireland businesses to ‘bin’ customs fo rms’ Belfast
Telegraph (Belfast, 8 November 2019)
northern-ireland-businesses-to-bin-customs-forms-38674258.html> accessed 18 April 2021. Per the article: “Mr
Johnson clarified further when he told reporters: ‘Northern Ireland and the rest of GB are p art of the UK customs
territory and there can be no checks between goods operating in one customs territory. W e’re the UK. We will not
be instituting such checks.”
The Northern Ireland Protocol
9
necessary in order to remedy the situation. Priority shall be given to such measures
as will least disturb the functioning of this Protocol.”
Article 16 is a “last resort” provision.
40
It exists to allow either the EU or the
UK to take unilateral action in response to negative effects arising from the
Protocol. The safeguard allows the UK and the EU to take unilateral action if the
Protocol is leading to “economic, societal, or environmental difficulties.”
41
Another
circumstance in which Article 16 may be invoked is when a “diversion of trade”
occurs.
42
A problem with this provision for both parties to the Agreement is that
this wording is vague and does not provide a clear example of when i nvoking
Article 16 would be invoked under those criteria.
Article 16 is not a route to the unilateral disapplication of the Protocol.
43
Nor is it a “route” to unilateral suspension.
44
In the event it was triggered, the
Protocol would continue to apply, and so would the obligations that derive from
it. The process to be followed upon triggering Article 16 is as follows; if either party
is considering adopting safeguard measures unilaterally, it must notify the other
party “without delay” and through the joint committee. The party must provide
all “relevant information,” details of why unilateral action is needed, what the
proposed action is, and justification for it.
45
There is then supposed to be a
consultation period where the two parties work out a mutually acceptable solution.
If such a unilateral safeguard is adopted, the joint committee must be made aware
of it and discuss them within three months with a view to abolishing it as soon as
possible. None of this occurred during the brief p eriod Article 16 was invoked by
the EU.
46
In early 2021, the EU made an “aborted” attempt
47
to trigger this safeguard
which was reversed within hours after condemnation from the UK.
48
The decision
to trigger Article 16 was made in response to fears that Northern Ireland could be
used as a “back door” to get arou nd restrictions and send more supplies of the
vaccine to Great Britain.
49
40
Katy Hayward and David Phinnemore, ‘Article 16 of the Ireland/Northern Ireland Protocol off ers no ‘quick fix’
(London School of Economics, 14 January 2021)
ireland-northern-ireland-protocol-offers-no-quick-fix/> accessed 15 February 2021.
41
ibid.
42
ibid.
43
Hayward and Phinnemore (n 40).
44
ibid.
45
ibid.
46
Lisa O’Carroll, ‘EU's article 16 blunder has focused minds on Northern Ireland’ The Guardian (London, 4 February
2021) 16-blunder -should-focus-minds-on-
northern-ireland> accessed 15 February 2021.
47
ibid.
48
‘What is Article 16 and why did the EU make a U-turn after triggering it?’ (Sky News , 31 January 2021)
accessed 15 February 2021.
49
ibid.
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Cambridge Law Review (2022) Vol VII, Issue 2
The EU’s aborted attempt to trigger Article 16 has led to more ambiguity
surrounding this provision, as the UK government has seized upon the subsequent
controversy as a means of demanding an extension to the post Brexit “grace
period”.
50
A shortage of AstraZeneca COVID-19 vaccine doses would surely
constitute an “economic, social or environmental difficult(y)” or perhaps a
“diversion of trade” given the European Commission’s suspicions that vaccines
were moving from the single market into Great Britain through Northern Ireland,
though the problem was that the Commission chose to act on suspicions without
any apparent solid evidence.
51
Relations between the EU and the UK were strained in late 2020 by the
apparent willingness of the UK government to breach international law and
renege on its commitments under the Withdrawal Agreement (during the period
in which the Internal Market Bill was passing through Parliament).
52
The strains
were fu rther exacerbated by the EU’s decision to trigger A rticle 16 in January
2021. Overall, the potential for either side to trigger Article 16 is a very real
possibility and a problem which must be overcome in order to make the Protocol
work.
C. POSSIBLE SOLUTIONS TO CUSTOMS AND GOODS DISPUTES
The next section will focus on the potential solutions to the issue of customs
and goods disputes under the Protocol. T wo solutions are offered: one UK wide;
the other Northern Ireland only. The latter would be more feasible, as the current
British government has expressed its distaste for the entirety of the UK remaining
regulatorily aligned with the EU.
(i) Solutions to Customs and Goods Disputes: A Potential UK Wide Solution
There is still uncertainty in some areas with regards to how the Protocol
will function.
53
However, it is clear from recent events that the EU-UK joint
committee and the Court of Justice of the European Union (CJEU) will play a role
in resolving disputes and giving clarity to ambiguous provisions of the Protocol.
The Protocol has led to checks and controls being imposed on goods moving from
50
O’Carroll (n 46).
51
Daniel Boffey and Kim Willsher, ‘EU in U-turn over move to control vaccine exports to Northern Ireland’ The
Guardian (London, 29 January 2021) on -vaccine-
exports-to-northern-ireland-trigger-diplomatic-row> accessed 15 February 2021.
52
Hayward and Phinnemore (n 40).
53
Brendan McGurk, ‘Analysis of the Northern Ireland Protocol and its impact on the UK’ (LexisNexis, 3 July 2020)
00?utm_source=psl_da_mkt&utm_medium=referral&utm_campaign=analysis-of-the-n orthern-ireland-protocol-
and-its-impact-on-the-uk> accessed 15 April 2021.
The Northern Ireland Protocol
11
Great Britain to Northern Ireland.
54
The problems the Protocol has had for
businesses led to the UK government unilaterally extending grace periods
55
for
food products moving from Great Britain to Northern Ireland—an example of the
UK violating the Withdrawal Agreement, and therefore international law.
56
There
is the prospect of non-legal action the EU could take against the UK for failing to
honour its commitments. Some EU diplomats have suggested retaliation against
the UK through the financial services industry. Presumably this means restricting
the access of British financial firms to the EU financial market.
57
It has already been suggested by commentators t hat the Protocol does not
amount to a permanent “fix” with regards to the issue of goods moving into and
out of Northern Ireland.
58
One example is that of food products. The requirement
for Sanitary and Phytosanitary (SPS) checks has disrupted the movement of food
products from Great Britain to Northern Ireland. The time required for these
checks has had an impact on the food supply in Northern Ireland, with bare
shelves in supermarkets now being a common sight. The problems this is causing
would suggest the need for a new solution, yet the two existing arrangements the
EU has with Switzerland and New Zealand do not seem to be viable as a solution
for Northern Ireland.
59
The agreement Switzerland has with the EU requires
Switzerland to adopt all relevant EU legislation to prevent the need for checks.
Because the UK has ruled out indefinitely aligning with EU regulations, this model
will not be adopted. The New Zealand model would not require alignment, but it
would acknowledge each party’s SPS standards and reduce the percentage of
checks required. The EU and the UK should already have reached such an
agreement.
60
Yet, such an arrangement would not solve Nort hern Ireland’s
problems, for the issue is the kinds of checks required, not the amount. A new
solution is required.
There are two possible solutions: one UK wide, the other specific to
Northern Ireland. The UK wide model would require the UK and the EU to
conclude a new SPS agreement that would manage the divergence of regulations
and limit the need for checks. A precedent in managing diverging standards
between the two parties was struck in 2020 by the Trade and Cooperation
54
Raoul Ruparel, ‘How to fix Brexit’s Northern Ireland protocol problem’ (Politico, 26 March 2021)
April 2021.
55
In the context of law, a grace period is a time period during which a particular ru le exceptionally does not apply, or
only partially applies.
56
Jacopo Barigazzi and Hans von der Burchard, ‘EU countries back legal action against UK over post -Brexit grace
period extension’ (Politico, 9 March 2021)
uk-over-post-brexit-grace-period-extension/> accessed 17 April 2021.
57
Ruparel (n 54).
58
ibid.
59
ibid.
60
ibid.
12
Cambridge Law Review (2022) Vol VII, Issue 2
Agreement (TCA).
61
In the TCA, the UK agreed not to regress
62
its labour and
social employment laws.
63
If the UK were to fail to meet its commitments, the EU
would be able to take remedial measures, which is enforced and overseen by a
panel of experts.
64
A rebalancing clause is also included,
65
which in the event of the
standards of the UK and the EU diverging, would allow either side to t ake
measures
66
to manage the divergence of standards. These processes provide a
mechanism for managing divergence which can be used elsewhere.
67
While the
mechanisms in the TCA are focussed on avoiding tariffs on goods, they could
potentially be applied in the cont ext of checks on goods as well. By transposing
these mechanisms to the context of goods, a solution which could potentially fix
the problems Northern Ireland is currently going through is available.
This model would be similar to the Swiss model in the particular area of
food regulations, but it would potentially be more robust and offer more assurance
to the EU, as it has a resolution mechanism in place already, which the Swiss model
does not. It also would not require any changes to EU law. The UK would be
meeting the EU’s legal requirements while gaining the benefits of the agreement,
which would be withdrawn if it broke the hypothetical agreement.
68
(ii) A Northern Ireland Only Solution
A UK-wide solution would not be politically workable, as the current UK
government wishes to remain unaligned with EU standards.
69
There is an option
which would apply to Northern Ireland only. In section B, the concept of goods
being “at risk” of being s old in the EU was mentioned. A solution for the issue of
agri-foods would be to extend the category of “at risk” goods to include agri -food
regulations. If there is no risk of food products being sold in the EU, then they
61
The EU-UK Trade and Cooperation Agreement’ (European Commission, 31 December 2020)
April 2021.
62
To ensure that its labour and social employment laws did not fall behind EU standards.
63
Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community,
of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the o ther part [2020] OJ L-444,
chapter six: labour and social standards, article 6.2(1)-(2).
64
ibid, article 6.4(1)–(2).
65
ibid, article 9.4.
66
‘Rebalancing measures’ is a rather broad term, but it essentially means that if the actions of o ne-party lead to
‘material impacts’, in this case on labour and social protection, the other side may take proportionate action to
restore the balance. An arbitration tribunal has been set up to mediate in potential disputes. See Da vid Glass,
‘Brexit update: ESG reporting, rebalancing measures and trade with India’ (Exc ello Law, 22 February 2021)
accessed 17 April 2021.
67
Ruparel (n 54).
68
ibid.
69
Kenneth Armstrong, ‘Regulatory autonomy after EU membership: alignment, divergence and th e discipline of law’
(2020) 45(2) European Law Review 207.
The Northern Ireland Protocol
13
would be exempt from agri -food requirements. This argument is also predicated
on the UK and the EU agreeing to extend the Brexit grace period, something
which does not seem likely. It would also depend on the use of data to allow firms
to prove their goods are only sold in Northern Ireland. This would require some
derogation from EU law, but the Northern Ireland Protocol already does this by
keeping Northern Ireland in the single market for goods and the customs union
but not requiring the other fundamental freedoms. The EU would be wise to
address this issue, as would the UK. Both sides agreed that Brexit would “impact
as little as possible on the everyday life of communities in both Ireland and
Northern Ireland.”
70
The problem with this argument is t hat the category of “ at risk” goods is
very wide.
71
A good is seen as being “at risk” of moving into the EU unless it can
be proven that it will not be subject to commercial processing in Northern Ireland
and that it meets the criteria drawn up by the joint committee established by Article
164 of the Withdrawal Agreement.
72
Article 5(2) of the Protocol defines
“commercial processing” as any alteration or transformation of goods. An example
would be flour imported into Northern Ireland from Great Britain. This flour
would be subject to EU customs even if the bread made from it was not intended
to be sold outside of Belfast.
73
Further, the wording of Article 5(2) reflects that the
default position is that duties will have to be paid on goods moving from Great
Britain to Northern Ireland, unless it can be proven that the good is not “at risk”.
The broad definition of “commercial processing” means
74
that a Northern Ireland
only solution would not be a feasible solution. Overall, the UK wide model would
be the better solution for the issue of goods moving between Great Britain and
Northern Ireland.
D. ARE THE CURRENT ARRANGEMENTS PROPORTIONATE?
A key concept in the law of the EU is the idea of proportionality: whether
a measure taken by a member state which derogated from the rights conferred by
the Treaties was “not… beyond that which is necessary in order to achieve the
objective. In other words, it must not be possible to obtain the same result by less
restrictive rules.”
75
The same question might be asked of certain aspects of the
Protocol, particularly with regard to its rules on the movement of goods between
Britain and Northern Ireland. The EU must consider whether the curr ent
70
Preamble to the Northern Ireland Protocol.
71
Artley and Peretz (n 30).
72
Article 5(2) Northern Ireland Protocol.
73
Weatherill (n 33).
74
Artley and Peretz (n 30).
75
Case C-288/89 Gouda [1991] ECR I-4007, para 15.
14
Cambridge Law Review (2022) Vol VII, Issue 2
arrangements are proportionate to the risk p osed to the single market.
76
In
January 2021, 36,000 point-of-entry certificates were required across the entire
EU. Of this total, 5,800 were required for trade between Britain and Northern
Ireland, which represents 15 per cent, even though trade between Northern
Ireland and Britain constitutes less than 1 per cent of total EU trade with non-EU
countries.
77
Some more statistics showing the scale of the problem: Northern
Ireland is processing more paperwork t han any EU member state for animal
imports; is processing 20 per cent of all CHED-Ps
78
in the EU; and up to 90 per
cent of generic drugs could be withdrawn from Northern Ireland because
medicines made in Great Britain have to be licensed separately for use in the
region as well as undergo separate checks.
79
This situation has arisen because of the lack of trust between the EU and
the UK because of the UK’s actions (the UK’s strategy to secure concessions from
the EU has been to be antagonistic towards the EU).
80
The Protocol is “the only
show in town”, at least while the UK is led by hard-line Brexiters, to protect the
EU’s vital interests, but in the future, the EU and the UK will have to consider
whether the Protocol is too res trictive on trade between Great Britain and
Northern Ireland. Since the agri-food checks are proving most problematic,
perhaps that will be the first area for reform.
III. THE LEGAL ISSUES ARISING FROM THE PROTOCOL
A. THE CONTINUING R OLE OF EU LAW AND THE CJEU IN
NORTHERN IRELAND
Article 12 of the Protocol mandates that the United Kingdom is responsible for
ensuring the application of relevant EU law.
81
This, of course, is a risk for the EU,
76
Jess Sargeant, ‘The UK government must take responsibility for making the Northern Ireland protocol work’
(Institute for Government, 15 April 2021)
protocol-tensions> accessed 19 April 2021.
77
Sam McBride, ‘Unionist leaders unite to go to court over Irish Sea border, arguing it breaches the 1800 A ct of
Union and 1998 Belfast Agreement’ News Letter (Belfast, 21 February 2021)
it-breaches-the-1800-act-of-union-and-1998-belfast-agreement-3141841> accessed 19 April 2021.
78
A form for importing animal products.
79
Noelle McElhatton, ‘EU Brexit chief says trade friction in Northern Ireland can be sorted but adds the task is
‘massive’ (Export, 19 April 2021)
in-Northern-Ireland-can-be-sorted-but-adds-the-task-is-massive.htm> accessed 19 April 2021.
80
Maddy Thimont Jack, ‘Making Lord Frost cabinet minister for EU relations makes sense – and suggests a hostile
strategy’ (Institute for Government, 18 February 2021)
brexit-cabinet-minister> accessed 19 April 2021.
81
Oliver Garner, ‘The new Irish Protocol could lead to the indefinite jurisdiction of the EU Court of Justice within
the UK’ (London School of Economics, 23 October 2019)
protocol-could-lead-to-the-indefinite-jurisdiction-of-the-court-of-justice-of-the-european-union-within-the- united-
kingdom/> accessed 15 April 2021.
The Northern Ireland Protocol
15
as it means that the EU has outsourced the patrolling of its external border on the
island of Ireland to the UK, a third country.
82
The remainder of Article 12,
however, ensures the EU institutions are able to supervise the UK’s application of
EU law. Articles 12(4) and 12(5) accord the CJEU jurisdiction over the application
of key provisions of the Protocol.
83
EU actors, including the CJEU, shall retain the
powers and jurisdiction accorded to them by the Treat ies
84
in this regard. The
Article 267 TFEU preliminary reference procedure shall continue to apply to and
in the United Kingdom. This means that individuals who are prevented from
benefiting from the UK’s enforcement of EU law will have the ability to bring a
claim before a domestic court in the United Kingdom, and that court will be
required to refer the issue to the CJEU if the relevant criteria are fulfilled.
85
A preliminary ruling is a ruling by the CJEU on “(a) the interpretation of
the Treaties; (b) the validity and interpretation of acts of the institutions, bodies,
offices or agencies of the Union.”
86
If, as in the case of Factortame,
87
the CJEU finds
that a member state’s
88
legislation conflicts with EU law, the member state will be
required to ‘disapply’ such law, though the CJEU does not itself have the power
to amend such law. The Francovich
89
principle of state liability may continue to
apply in the event that individuals were prevented from benefitting from EU law
by the UK’s failure to enforce it. Such individuals would have the ability to petition
a UK domestic court, and the domestic court would then have to submit the
question to the CJEU, pending the criteria being fulfilled.
90
Article 4 of the withdrawal agreement provided for the continuing
jurisdiction of the CJEU in Great Britain until the end of the transition period
91
on 31 December 2020. The CJEU now only has jurisdiction on the issue of the
rights of EU citizens in Great Britain.
92
In Northern Ireland, however, the Protocol
gives the C JEU the ability to potentially rule upon the actions of UK authorities
indefinitely. This power could only be terminated by the Northern Ireland
Assembly refusing to consent to its continuing operation beyond 2024 (which is
within t he real m of p ossibility given the current political situation in Northern
82
ibid.
83
Craig and de Búrca (n 6) 779.
84
Meaning the Treaty on European Union (TEU) and the Treaty on the Functioning of the Europe an Union
(TFEU).
85
Garner (n 81).
86
Article 267 TFEU.
87
Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and others [1990] ECR I-2433, para 23.
88
The UK is no longer a member state but given that the Northern Ireland Protocol requires UK courts to ask for a
preliminary ruling in cases involving the application of EU law in Northern Ireland, in the context o f the Northern
Ireland Protocol, the requirement for the arbiter to be a court of a member state is null.
89
Cases C-6/90 and C-9/90 Francovich and Bonifaci and others v Italy [1991] ECR I-5357.
90
Garner (n 81).
91
The transition period was a period when the entirety of the UK (not just Northern Ireland) remained in the EU
customs union and single market and followed EU rules.
92
Garner (n 81).
16
Cambridge Law Review (2022) Vol VII, Issue 2
Ireland) or by a future agreement which would supersede the Protocol and the
CJEU.
93
Differing from the prior withdrawal agreement which Theresa May’s
government concluded with the EU, the final withdrawal agreement and the
attached Northern Ireland Protocol provide for a heightened role for the CJEU
(most likely as a result of only Northern Ireland remaining de facto attached to the
EU’s Customs Union and single market rather than the entire UK). The previous
withdrawal agreement made provision for a role for the CJEU, however, this
would have been mitigated by the EU and UK “engag[ing] in best endeavours”
94
to prevent the Northern Ireland backstop
95
coming into force. The CJEU would
have had a role only in the event the backstop had to be enforced. The Protocol,
however, mandates that the CJEU will have a role for as long as t he Protocol
remains in force.
It is more likely that litigation will arise under the current agreement
96
than
it would have under the one Theresa May’s government negotiated;
97
this is
because whereas under the previous withdrawal agreement, the CJEU would have
only been determining whether t he UK was complying with customs union rules
that the UK had already adopted during membership, under the current
withdrawal agreement, the CJEU will have to ensure the UK checks goods
movements using the criteria established by the joint committee. The fact that
these criteria are completely new to both individuals and state actors means that it
is likely the CJEU will need to at some point give clarity to questions of law.
Furthermore, if the UK were to adopt different regulatory standards from the EU,
there would be questions regarding the ability of its authorities to enforce EU law
standards in Northern Ireland as well.
98
There have already been several occasions where the UK government has
either flirted with disregarding its commitments under the Withdrawal Agreement
and the Northern Ireland Protocol,
99
or shown a lack of trustworthiness in its
93
Article 13(8) Northern Ireland Protocol.
94
Garner (n 81).
95
The ‘backstop’ was the solution to the Irish border issue that was negotiated by Theresa May’s government with
the EU. It was replaced by the Northern Ireland Protocol. The backstop would have kept Northern I reland in
some parts of the EU single market, until the EU and the UK agreed on a long -term solution. The EU and UK
customs territories would have operated as one until a long-term arrangement was a greed upon. See Jon Henley,
‘Brexit deal: key points from the draft withdrawal agreement’ The Guar dian (London, 14 November 2018)
agreement> accessed 16 April 2021.
96
Withdrawal Agreement (n 8).
97
‘Progress on the UK’s exit from, and future relationship with, the European Union’ (Department for Exiting the
European Union, 14 November 2018) on -the-uks-exit-
from-and-future-relationship-with-the-european-union> accessed 16 April 2021.
98
Garner (n 81).
99
Oliver Garner, ‘A Barrier against the new incoming tide? The UK Internal Market Bill and D ispute Resolution
under the Withdrawal Agreement and the Protocol on Ireland/Northern Ireland’ ( UK Constitutional Law Association,
17 September 2020)
The Northern Ireland Protocol
17
conduct during the Brexit process. In late 2019, the UK government considered
not requesting the European Council to extend the Article 50 negotiations period,
despite domestic UK law requiring it to do so.
100
Exactly one year later, Northern
Ireland Secretary Brandon Lewis admitted that the UK Internal Market Bill which
was passing through the UK Parliament at the time would “break international
law” and go against the Withdrawal Agreement in a “specific and limited way”.
101
The Bill would have given government ministers the power to define what state
aid needs to be reported to the EU
102
and products that are at risk of being brought
into Ireland from Northern Ireland.
103
The plans of the British government were dropped after the EU and UK
were able to come to agreement through the joint committee,
104
but what would
happen if the British government were to breach provisions of the Northern
Ireland Protocol and ignore the protests of the EU? Article 12 of t he Protocol is
the starting place.
B. HOW WILL THE EU ENSURE EU LAW IS ENFORCED IN
NORTHERN IRELAND?
It seems the most likely legal solution to disputes regarding EU law in
Northern Ireland for the moment will be for the enforcement mechanisms
available under EU law to be utilised.
105
Per Article 12 of the Protocol, there would
be two mechanisms: the first would allow the European Commission to bring an
infringement claim against the UK before the CJEU; the second would allow an
individual in the UK to bring a case before a national court. The court would then
possibly have to initiate a preliminary reference procedure.
106
The extent to which
the second mechanism would operate in UK law is unclear. The British
government has already shown a willingness to disregard its obligations under the
Protocol. In a legal opinion, the government held that “Parliament’s ability to pass
incoming-tide-the-uk-internal-market-bill-and-dispute-resolution-under-th e-withdrawal-agreement-and-the-
protocol-on-ireland-northern-ireland/> accessed 16 April 2021.
100
‘Brexit extension: PM to ‘test law to limit’ to avoid delay’ (BBC News, 8 Septemb er 2019)
101
‘Northern Ireland Secretary admits new bill will ‘break international law’ (B BC News, 8 September 2020)
102
EU level playing field provisions continue to apply to Northern Ireland, per Article 10(1) -(3) of the Northern
Ireland Protocol.
103
Daniel Boffey, Jessica Elgot and Heather Stewart, ‘Leaked EU cables reveal growing mistrust of UK in Brexit talks’
The Guardian (London, 7 September 2020) eu -
cables-reveal-mistrust-of-uk-motives-in-brexit-talks> accessed 16 April 2021.
104
Emer O’Toole, ‘Brexit: Tories remove law-breaking clauses from Internal Market Bill in U -turn’ The National
(Glasgow, 8 December 2020)
clauses-internal-market-bill-u-turn/> accessed 16 April 2021.
105
Garner (n 99).
106
ibid.
18
Cambridge Law Review (2022) Vol VII, Issue 2
provisions that would take precedence over the Withdrawal Agreement was
expressly confirmed in section 38 of the European Union (Withdrawal Agreement)
Act 2020, with specific reference to the EU law concept of ‘direct effect’.”
107
The
British government wished to eliminate the possibility of relying on the direct
effect of the withdrawal agreement provisions.
The UK’s having a dualist
108
legal system raises the possibility of the
preliminary reference procedure being suspended.
109
The second paragraph of
the legal opinion states clearly: “Clause 45 of the Bill partially disapplies the
implementation in UK domestic law of Article 4 WA and the EU law concept of
direct effect.”
110
How far this “partial” disapplication of direct effect was intended
to go is unclear. The objective of this provision is arguably to prevent domestic
courts from hearing challenges to the legislation and issuing preliminary
references under Article 267 TFEU.
111
Indeed, the very concept behind direct
effect is that the EU Treaties create legal rights which can be enforced by both
natural and legal persons before the courts of the EU’s member states.
112
There is
also the interesting theoretical question regarding whether these ri ghts would be
directly effective in a former member state. Per Article 12(7)(a) of the Protocol: “The
United Kingdom may participate in proceedings before the Court of Justice of the
European Union in the same way as a member state” with regards to issues arising
from the Protocol. So the answer would be de jure “yes”; though how this would
play out in practice is up for debate.
C. WHAT IF THE BRITISH GOVERNMENT DISREGARDS THE
APPLICATION OF EU LAW?
Given that the withdrawal agreement requires the direct effect of EU law
in Northern Ireland and a role for the CJEU, the UK no longer being a member
state is irrelevant, though a potential case in the CJEU to provide more clarity
would be helpful. The mere fact a country is a member state of the EU does not in
itself guarantee compliance with the judgments of the CJEU. In the Ajos
113
case,
107
‘HMG Legal Position: UKIM Bill and Northern Ireland Protocol’ (Cabinet Office, 10 September 2020)
accessed 17 April 2021.
108
In international law, each state can choose the relationship between domestic law and internationa l law within its
legal system. Two theories exist. A ‘monist’ legal system incorporates international law into th e domestic legal
order. International law would apply as though it were domestic law. In a ‘dualist’ legal system, internation al law is
seen as the law between states, national law is the law within a state. While international law is binding at the
international level, it cannot be binding within the domestic legal system. See Robert Schütze, European Union Law
(2nd edn, Cambridge University Press 2018) 77.
109
Garner (n 99).
110
HMG Legal Position (n 107).
111
Garner (n 99).
112
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 13.
113
Case C-441/14 Dansk Industri v Rasmussen [2016] EU:C:2016:278.
The Northern Ireland Protocol
19
the Danish Supreme Court initiated an Article 267 preliminary reference
procedure regarding the compatibility of paragraph 2(a)(3) of the Danish Salaried
Employees Act with Directive 2000/78/EC.
114
Despite the clear guidance given by
the CJEU, the Danish Supreme Court refused to set aside the provision of national
law which was incompatible with the Directive, applying the national law instead.
115
The Danish court chose to follow this reasoning because it felt that disapplying the
domestic legislation in favour of the EU Directive was ul tra vires,
116
as under the
Danish constitutional ord er, the judiciary should not issue a ru ling which goes
against the intention of the Danish parliament.
117
This was a clear violation of the doctrine of primacy of EU law and loyal
cooperation of national courts established by the Costa ruling.
118
National courts
setting their own standards for the enforcement of EU law has been an ongoing
development throughout the years. For instance, the German Constitutional
Court set its own standards for enforcement of EU law in the case of Internationale
Handelsgesellschaft,
119
where it held that it would enforce EU law “so long” as it
complied with the fundamental rights guaranteed by the German legal order.
120
The point is with regards to the Protocol that courts of the member states have
shown an unwillingness to enforce EU law over domestic law, so who is to say the
courts of a former member state will not do the same?
Whether direct effect has been removed is now a moot issue, first because
the UK government removed the relevant clauses from the Internal Market Bill.
121
The second reason being even if the UK government were to remove the direct
effect of EU law and the ability of a UK court to bring an Article 267 TFEU
preliminary reference proceeding, the European Commission still has the power
to bring an infringement procedure against the UK before the CJEU as a matter
of bilateral international treaty law.
122
The act of introducing a bill into the UK Parliament with the offending
clauses present was a breach of the international law maxim of pacta sunt servanda
123
and also a violation of Article 26 of the Vienna Convention on the Law of
114
Directive 2000/78/EC Framework Employment Equality [2000] OJ L303/16.
115
Case no. 15/2014 Dansk Industri (DI) acting for Ajos A/S vs The estate left by A .
116
Latin for “beyond the powers;” used in the sense that under Montesquieu’s theory of the separation of powers, the
judiciary should not play a legislative role by invalidating legislation and so on.
117
Mikael Rask Madsen, Henrik Palmer Olsen and Urška Šadl, ‘Legal Disintegration? The Ru ling of the Danish
Supreme Court in AJOS’ (Verfassungsblog, 30 January 2017)
ruling-of-the-danish-supreme-court-in-ajos/> accessed 18 April 2021.
118
Case 6/64 Costa v. ENEL [1964] ECR 585.
119
BVerfGE 37, 271 (Solange I (Re Internationale Handelsgesellschaft)) [1974] 2 CMLR 54 0.
120
Schütze (n 108) 130.
121
Which has since been passed as the United Kingdom Internal Market Act 2020 c.27.
122
Garner (n 99).
123
Latin for “agreements must be kept.”
20
Cambridge Law Review (2022) Vol VII, Issue 2
Treaties.
124125
The outcome if in the future the UK government attempts to breach
the Protocol in a similar way would be the commencement of a dispute resolution
procedure in the joint committee, which would be established three months after
written notification between the parties. In the event the joint committee was
unable to find a solution, Article 12 of the Protocol would empower the European
Commission to bring an infringement procedure against the UK before the
CJEU.
126
IV. THE POLITICAL PROBLEMS CAUSED BY BREXIT, THE
PROTOCOL’S ATTEMPTED SOLUTIONS TO THEM, AND SOME
ALTERNATIVE SOLUTIONS
A. WAS THERE A NEED FOR THE BORDER TO BE WHERE IT IS?
The main problem during Brexit with regards to N orthern Ireland was the clash
of interests between the EU and the UK – there was never an optimal solution,
and possibly never will be, to the extraordinarily complex problems brought about
by the UK’s withdrawal. There was never any s olution that would have had no
border on the island of Ireland, no border between Great Britain and Northern
Ireland, and the ability for the entire UK to leave the EU single market and
customs union.
127
The phrase “to protect the Good Friday Agreement” may go down as one
of those phrases used during Brexit which did not really mean anything, along
with “Brexit means Brexit”
128
and “strong and stable”.
129
While the Good Friday
Agreement did see the withdrawal of British troops from the streets and fields of
Northern Ireland, and did mean the border between Ireland and Northern
Ireland became “invisible” in the sense there was no longer a military presence
there, the border has been open since 1923 because of the Common Travel Area.
130
124
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 Jan uary 1980) 1155 UNTS
331.
125
Jonathan Deans, ‘The Internal Market Bill: a specific and limited controversy?’ (2021) 1 Juridical Review 48.
126
Garner (n 99).
127
Anton Spisak, ‘After Brexit: Northern Ireland and the Future of the Protocol’ ( Tony Blair Institute for Global Change,
12 March 2021) and-future -protocol> accessed 19
April 2021.
128
Mark Mardell, ‘What does ‘Brexit means Brexit’ mean?’ (BBC News, 14 July 2016)
129
Esther Addley and Caroline Davies, ‘Dreadful night’ when Theresa May’s strong and sta ble fantasy evaporated’ The
Guardian (London, 9 June 2017)
night-strong-stable-fantasy-evaporated> accessed 19 April 2021.
130
‘Memorandum of Understanding between the UK and Ireland on the CTA’ ( Cabinet Office, 8 May 2019)
the-cta> accessed 19 April 2021.
The Northern Ireland Protocol
21
As Rory Montgomery, former Irish diplomat, said:
The Good Friday Agreement says either little or nothing about the
European Union, about the border between North and South, or
about trade within the UK. Therefore, the argument that Brexit or
its outworkings formally violate the Agreement is hard to sustain.
But Brexit seriously breaches the context and spirit of the
Agreement, with very real political and p sychological effects. One
way or another, its implementation was always going to be
disruptive and damaging.
131
The solution to the trilemma did not necessarily have to be the one that was
adopted in the end. The Good Friday Agreement was not violated by the act of
Britain leaving the EU. The interpretation of the Good Friday Agreement which
was presented by the government of Ireland became the widely accepted position
and there was no attempt by the British government to articulate an alternative
position.
132
A “hard border” is not a legal term of art with a widely accepted definition
that other terms such as habeas corpus or ultra vires have. It could have been
interpreted differently. For instance, rather than have the border in the Irish Sea
and thus keep Northern Ireland aligned to the single market and customs union,
alternative arrangements could have been made to have checks on goods moving
between the UK and Ireland some distance away from the actual border. If a land
border between Ireland and Northern Ireland was having the economic and social
impact the Protocol is having, it would be clear that it would need to be replaced.
133
While this may be true, looking at the empirical d ata makes it clear that more of
Northern Ireland’s trade is with Britain than with Ireland
134
and that the Protocol
is impacting the supply of essentials like medicines.
135
From a utilitarian point of
view, it would seem a border on the island of Ireland would have made more sense,
although in the highly partisan politics of Northern Ireland, it would have been
interpreted as favouring unionists over nationalists.
A border on the island of Ireland would have been more pleasing for the
EU logistically, as it would have meant that it did not have to entrust its external
131
Rory Montgomery, ‘Protocol problems for both parts of Ireland: North and South’ ( Fortnight Magazine, April 2021)
19 April 2021.
132
ibid.
133
Éilis O'Hanlon, ‘Of course unionists are angry, we partitioned their country’ Ir ish Independent (Dublin, 11 April
2021)
country-40299253.html> accessed 19 April 2021.
134
Halpin and Holton (n 34).
135
McElhatton (n 79).
22
Cambridge Law Review (2022) Vol VII, Issue 2
border to a third country, the UK. While the prospect of checks on goods could
potentially have led to tensions within the nationalist community, the Good Friday
Agreement, so often cited, does not provide that trade between Northern Ireland
and Ireland should be unfettered. That could potentially have been solved in the
future with some sort of alignment on SPS standards like the EU has with
Switzerland and New Zealand, as Northern Ireland’s trade with Ireland is
primarily based on agricultural goods.
136
The pres ent situation with regards to the Irish border was not the only
solution, but the result of a hard -line stance adopted by the then T aoiseach Leo
Varadkar, which was accepted by the EU and the UK. Had the narrative reflected
the reali ty that the Good Friday Agreement would not have been breached by
checks on goods moving between Northern Ireland and Ireland, a solution more
acceptable to all concerned parties may have been found.
137
B. ARTICLE 18 AND IT S POTENTIAL LACK OF COMPATIBILITY
WITH THE GOOD FRIDAY AGREEMENT
Article 18 provides a mechanism for the UK to “provide the opportunity
for democratic consent in Northern Ireland to the continued application of
Articles 5 to 10.”
138
This means that the UK government will have to seek the
consent of the Northern Ireland Assembly, the local devolved legislature, in order
for the Protocol’s provisions to be extended beyond 2024.
139
Articles 5 to 10 cover,
respectively, customs and movement of goods; protection of the UK internal
market; technical regulations; VAT and excise; the single electricity market; and
state aid.
Article 18 of the Protocol provides for “the opportunity for democratic
consent in Northern Ireland […] consistent with the 1998 Agreement.”
140
The
1998 Agreement is an international agreement between the UK and Ireland.
141
The “core tenet” of the Agreement, and the context of the reference to democratic
consent in the Protocol, is that there should be no change to Northern Ireland’s
136
Matthew Ward, ‘Statistics on UK trade with Ireland’ (House of Commons Lib rary, 15 January 2021)
137
Henry Hill, ‘The Northern Ireland Protocol is untenable’ (The Spectator, 16 April 2021)
19 April 2021.
138
Northern Ireland Protocol, article 18.
139
Colin Harvey, ‘Designing a Special Arrangement for Northern Ireland: the Irish Protocol in Context’ (Brexit Institute
Working Paper Series, 1 May 2020) accessed 16
February 2021.
140
The 1998 Agreement is the Good Friday or Belfast Agreement.
141
Austen Morgan, ‘The Belfast Agreement: a practical legal analysis’ (CAIN Web Ser vice, 2000)
The Northern Ireland Protocol
23
constitutional status without the consent of the unionist and nationalist
communities.
142
There is great dissatisfaction in Northern Ireland with the Protocol and its
de facto creation of a border between Great Britain and Northern Ireland,
particularly within the unionist community.
143
If there is a vote to bring the
operation of Articles 5 to 10 t o an end, then the joint committee will have two
years to make recommendations to ensure the avoidance of a hard border.
144
It
could even be the case that the joint committee will have to meet to discuss the
abolition of the Irish Sea border. It would appear there is much for Brussels to be
worried about: it would seem that the Northern Ireland Assembly would have the
power to derail the Protocol, if it were so inclined. The role of the joint committee,
however, acts as a constraint on the power of the Assembly. The CJEU will
continue to have a role to play in matters of interpretation of EU law still in effect
in Northern Ireland, and t he joint committee will still be bound by the CJEU’s
rulings. Overall, this is a prickly provision of the Protocol, which has the potential
to make politics in Northern Ireland even more heated, but it would seem the EU
can rest easy knowing that its vital interest in securing its border with the UK will
be protected by the might of the CJEU.
C. THE POTENTIAL INCOMPATIBILITY OF THE PROTOCOL
WITH THE CONSTITUTIONAL ARRANGEMENTS OF NORTHERN
IRELAND
The irony of the Protocol is that it was formulated by t he EU and the UK
with the intention of p reventing further violence in Northern Ireland. In April
2021, the cities of Belfast and Derry-Londonderry had some of their worst riots in
years. Loyalist paramilitaries have withdrawn their support for the Good Friday
Agreement (which brought the most recent iteration of the conflict in Northern
Ireland to an end) until the trading arrangements of the Northern Ireland
Protocol are removed.
The EU showed a mature approach to the unrest by postponing the legal
action it had intended to bring against the UK for unilaterally extending the grace
period covering checks on agri-foods moving from Great Britain to Northern
142
Martin Fletcher, ‘The Northern Ireland riots have exposed Boris Johnson’s reckless complacency’ ( The New
Statesman, 12 April 2021)
riots-have-exposed-boris-johnson-s-reckless> accessed 16 April 2021.
143
Clare Rice, ‘Free us’: the DUP’s Northern Ireland Protocol strategy’ (Londo n School of Economics, 4 February 2021)
February 2021.
144
ibid.
24
Cambridge Law Review (2022) Vol VII, Issue 2
Ireland.
145
The violence began as a result of an oversight by both the UK and the
EU, however. The two parties committed to preserve peace but did so in a manner
which, in the opinion of loyalists, went against the principles of parity of esteem
146
and consent
147
enshrined in the Good Friday Agreement. Indeed, some members
of the Democratic Unionist Party (DUP), Northern Ireland’s largest unionist party,
have prepared legal challenges against the Protocol for this very reason.
148
All of this rel ates to Article 18, the provision of the Protocol which is
supposed to protect the spirit of the Good Friday Agreement through “democratic
consent”. However, the vote which the Northern Ireland Assembly is supposed to
have on the continuing operation of the Protocol is not scheduled until 2024.
Considering the volatile atmosphere in Northern Ireland as a result of the
Protocol,
149
it s eems that the best solution would have been to organise a
referendum to allow the electorate to have their say on the issue, although the
more likely solution now is for the EU-UK joint committee to work on finding a
solution together.
150
It seems counter to the spirit of democracy to change the way
the economy and politics of a region work before giving its citizens an opportunity
to vote on it. That is the fault of the UK government
151
and not the EU, but they
did jointly agree on the Protocol. Indeed, the piece of secondary legislation
152
regarding the vote on the Protocol was the subject of a legal challenge brought in
the High Court in Belfast, but which is expected to end up in the UK Supreme
Court.
153
The applicants in the legal challenge argue that the secondary legislation
145
Alberto Nardelli, ‘EU to Delay Brexit Legal Action Amid Northern Ireland Violence’ ( Bloomberg, 9 April 2021)
violence> accessed 18 April 2021.
146
This means that the unionist-loyalist community and the nationalist-republican community must be treated equally
and that a majority of voters in both communities must approve of a measure which would ha ve constitutional
consequences.
147
This means that fundamental constitutional change in Northern Ireland can only occur through a referendum. The
Good Friday Agreement refers to the consent principle in the context of Northern Ireland leaving the UK and
uniting with the Republic of Ireland, though Unionists argue this should also extend to the Protocol.
148
‘DUP leadership starts challenge against Northern Ireland protocol’ The Guardian (London, 21 February 2021)
ireland-protocol> accessed 18 April 2021.
149
Jonathan Powell, ‘Peace in Northern Ireland is in danger- Johnson’s lies and inaction offer no help’ The Guardian
(London, 11 April 2021)
has-put-northern-ireland-fragile-peace-at-grave-risk> accessed 18 April 2021.
150
Nardelli (n 145).
151
It is the responsibility of the UK government to decide how Northern Ireland gives conse nt. The process is
legislated for by the Protocol on Ireland-Northern Ireland (Democratic Consent Process ) (EU Exit)
Regulations 2020.
152
ibid.
153
McBride (n 77).
The Northern Ireland Protocol
25
alters “constitutional statutes”
154
such as the Acts of Union 1800
155
and the
Northern Ireland Act 1998
156
by removing the cross-community voting mechanism
central to the Good Friday Agreement. The plaintiffs argue on five grounds that
the Protocol is unlawful: first, that the terms of the Protocol violate the Acts of
Union 1800; second, that the Protocol conflicts with the Northern Ireland Act
1998; third, that Article 18 of the Protocol is incompatible with the usual provisions
for cross-community voting in the Northern Ireland Assembly (Article 18
mandates a simple majority vote); fourth, that the Protocol is incompatible with
Article 3 of the European Convention on Human Ri ghts (ECHR), as Northern
Ireland has no way of having any voice in the creation of EU law, yet has to follow
it; and fifth, that the Protocol breached Article 50 TEU by providing for the
continued application of EU law outside the EU.
The challenge brought by Traditional Unionist Voice (TUV) leader Jim
Allister in the High Court of Northern Ireland was rejected, as was the appeal to
the Northern Ireland Court of Appeals.
The case will proceed to the Un ited Kingdom Supreme Court. Keegan
LCJ of the Northern Ireland Court of Appeals identified the following as the legal
questions for the UK Supreme Court to consider: whether the Court of Appeal
erred in law by concluding that (a) Article 6 of the Acts of Union did not prevent
the UK Government from effecting the Withdrawal Agreement and (b) that the
European Union Wit hdrawal Act 2018 lawfully modifies Article 6; whether the
Court of Appeal erred in law by failing to conclude that the modification of Article
6 constitutes a change in the constitutional status of Northern Ireland, in conflict
with the Northern Ireland Act 1998; and whether the Court of Appeal erred in
law by concluding that the Protocol lawfully disapplied section 42 of the Northern
Ireland Act 1998.
157
Allister
158
has the potential to be a landmark case in UK constitutional law;
it may mark the first time any court in the UK has had to resolve a conflict between
two constitutional statutes. A ruling on the case is not expected until 2023.
There is the argument that the use of the joint committee to resolve these
issues is undemocratic in itself: representatives of Northern Ireland did not have
a voice in the Protocol which has had profound economic, social, and political
154
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [62] (Laws LJ). In th is case, Laws LJ stated that
‘constitutional statutes’ such as the Acts of Union are immune from implied repeal, whi ch is a concept in UK
constitutional law which holds that where two pieces of legislation contradict each other, the latter Act takes
precedence. This principle was approved by the UK Supreme Court in BH v The Lord Advocate (Scotland) [2012]
UKSC 24 [30] (Lord Hope).
155
40 Geo. 3 c.38.
156
c. 47.
157
Alan Erwin, ‘Unionist challenge to NI protocol to proceed to UK’s Supreme Court’ The Irish Times (Dublin, 25
April 2022) and-law/courts/criminal-court/union ist-challenge-to-ni-
protocol-to-proceed-to-uk-s-supreme-court-1.4861355> accessed 24 August 2022.
158
Re Jim Allister’s application for Judicial Review [2021] NIQB 64.
26
Cambridge Law Review (2022) Vol VII, Issue 2
effects. Before adopting the Lisbon Treaty, most member states offered their
citizens a chance to vote on it. The voters of Ireland rej ected it, then gained
concessions which then led to the Irish electorate approving the Treaty.
159
The
Treaty establishing a Constitution for Europe was not adopted because French and
Dutch voters rejected it in referenda.
160
The point of all of this is that it is usually the European way to offer citizens
a chance to vote on issues such as these. Article 2 TEU provides that the EU is
founded on, amongst others, the value of respect for democracy. It seems counter
to this principle the EU was founded on to change the way the economy of
Northern Ireland works without giving the people of Northern Ireland a say.
The violence in Northern Ireland has not been caused by the Protocol
alone,
161
but the decision to hold a referendum on it before it entered into force
would have at least allowed it to enjoy democratic legitimacy. It is good that even
under strained relations the joint committee is able to produce solutions to the
problems the Protocol has been going through;
162
however, the need for the
people of Northern Ireland to have their say sooner rather than later has become
very clear.
V. CONCLUSION
This article has attempted to put forward the case that the Northern Ireland
Protocol is in some regards untenable. It has created frictions in trade between
Northern Ireland and Great Britain, to the detriment of all members of the
community in Northern Ireland. It has pushed Northern Ireland to establish
closer trade links with Ireland and the EU. The Protocol has been the cause of
much social unrest. Furthermore, its policy on goods moving between Britain and
Northern Ireland may protect the single market, but it is disproportionate given
that less than 1 per cent of trade between the EU and third countries passes
between Britain and Northern Ireland. Whether the CJEU will have much of a
role in Northern Ireland is also hard to tell—the current British government has
159
‘Ireland backs EU’s Lisbon Treaty’ (BBC News, 3 October 2009)
accessed 18 April 2021.
160
Patrick Wintour, ‘EU scraps timetable for ratifying constitution’ The Guar dian (London, 17 June 2005)
161
According to police sources, the violence was stirred up by criminal gangs in response to a crackdown on their
activities. The decision not to prosecute those who organised and attended the funeral of a leading memb er of the
IRA in breach of Covid regulations also played a role. But the belief that th e UK government has abandoned
Northern Ireland is what is causing a lot of the discontent in the loyalist community. See ‘The Guardian view o n
the riots in Northern Ireland: situation dangerous’ The Guardian (London , 6 April 2021)
ireland-situation-dangerous> accessed 18 April 2021.
162
Editorial comments, ‘Sour lessons from the Union’s first encounters with the UK as a ‘f ree and sovereign country’
(2021) 58(1) Common Market Law Review 1, 9.
The Northern Ireland Protocol
27
shown a propensity for disregarding its obligations under international law,
whether as a negotiating tactic or not. At the end of April 2021, the European
Commission paused the legal action it was intending to bring against the UK with
an interest in finding a solution to Northern Ireland’s current problems. The latest
breakthrough on trading arrangements.
163
While this may not solve the current
unrest in Northern Ireland completely, given that it was caused by more than just
the Protocol, it makes for a refreshing change in how EU-UK policy on Northern
Ireland has been decided. History has shown that the Northern Irish, regardless
of political affiliation, do not appreciate the future of their region being decided
without them having a role to play. The recent violence and tensions should be a
wakeup call to the EU and the UK about the reality of the situation.
163
Naomi O’Leary, ‘EU seeks business input over problems with Northern Ireland protocol’ The Irish Times (Dublin,
17 April 2021)
northern-ireland-protocol-1.4539750> accessed 19 April 2021.
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