Why has the Northern Ireland Protocol created a legal crisis?

Did Boris Sign The Withdrawal Agreement in Earnest or in Jest? Here are some questions that arose from the fuss around the IMB (see the The UK Internal Market Bill for more on this topic).

Question 1.Why did Boris Johnson sign such a bad WA?

In order to win the Tory leadership contest, Boris Johnson had to promise to avoid a ‘hard’ Brexit, which meant finally voting (at the third reading) for the Withdrawal Agreement (WA) as it then was. He next had to get a general election agreed from a minority position in the House of Commons against the Fixed Term Parliament Act. To get Parliament to revoke the Fixed Term Act he had to ensure there was a deal on the table, his revised WA. He could not continue much longer with the paralysed Parliament that existed and therefore couldn’t afford another three or four years negotiating with the EU from scratch. There was really no choice but to tweak Theresa’s terrible agreement.

Having achieved the premiership he had to deal with the WA, which he did not like despite being forced to support it. In short order he had to get several modifications agreed by the UK Parliament and the EU, which included replacing the ‘backstop’ with a revised Protocol on Northern Ireland. In other words, it was politics all the way.

Either he and his advisers did not spot the subtle dangers in the Protocol or he believed that he could not negotiate suitable changes with the EU in time; probably we will never know which it was.

It is hard to believe that an elected government of the UK wanted to persuade us that this was a good deal. It seems to have been signed by the UK on the assumption that there would be an agreement on the future relationship with the EU, finalised before the end of the transition period, which now looks less certain. The fact that the Government are now proposing to modify some terms, through the Internal Market Bill (IMB), suggests that they may have woken up to its true nature.

Question 2. Is the EU’s outrage about the UK Government unilaterally overriding an international treaty hypocritical?

In our recent post, Breaking International Laws, we cited examples of the EU itself unilaterally overriding international agreements:

The EU has systematically refused to comply with the judgments of the World Trade Organisation, flouting rulings on GMO crops, hormone beef, and Airbus subsidies, as if the matter were optional. It has repudiated the doctrine of legal supremacy and “direct effect” [see Q4], the very doctrine that the EU now asserts in the Withdrawal Agreement.”

Many others have produced examples of the arrogance with which the EU behaves in this context, harrumphing hypocritically about the UK having the temerity to adopt practices that the EU itself justifies through the use of judgements from the CJEU. In another example, the CJEU ruled that the EU could and should disregard an edict by the UN Security Council when it judged that the UN Charter (supreme in international law) conflicted with the EU’s constitutional order, otherwise knows as the Treaties.

Question 3. Can the Right Honourable Gentleman find another way to protect their own union from sabotage?

This question refers to the union of the four entities that form the United Kingdom. The question has been raised in the context of the IMB because that Bill has been presented by the Government as clarifying the Protocol on Northern Ireland, which, as it stands, is open to abuse should the EU wish to declare that goods transferred between Great Britain and Northern Ireland are “at risk” of being transferred to the Republic of Ireland and thus to the EU:

The position of the UK as a member of the EU was that “No customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport” The Protocol adds the rider: “unless that good is at risk of subsequently being moved into the Union” and we know that it will be the EU itself that determines the risk:

Article 6: 1… Provisions of Union law made applicable by this Protocol which prohibit or restrict the exportation of goods shall only be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by any international obligations of the Union.

Again, what is “strictly required” will be decided by the EU.

Article 12: 6. Authorities of the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisation procedures provided for in Union law made applicable by this Protocol.

The UK Government has sought to remedy this risk to the union of Great Britain and Northern Ireland through the IMB. Opposition to the Bill raised this question.

Question 4. What is ‘direct effect’ in EU law?

For example, “an obligation which has direct effect in the legal systems of the Member States”

Definition from IATE (European Union Terminology): “measure created for certain Community acts which are directly applicable and do not have to be transposed beforehand into national law

Much of the acquis communautaire (the complete collection of EU laws, regulations, directives, decisions, etc.) has, by the Treaties, to be approved by the Parliaments of the Member States for transmission into national law.

An example of something that has direct effect is Article 4 of the UK Withdrawal Agreement (Methods and principles relating to the effect, the implementation and the application of this Agreement):

1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.

Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.” (our emphasis)

The EU Treaties do not appear to use the term ‘direct effect’ but Article 297 of the TFEU has this, which illustrates the definition:

Other directives, and decisions which specify to whom they are addressed, shall be notified to those to whom they are addressed and shall take effect upon such notification.


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