On Monday 13 June, the UK Government tabled a Northern Ireland Protocol Bill (The NIP Bill) giving it the power to dis-apply parts of the N Ireland Protocol (NIP), an integral part of the EU-UK Trade and Cooperation Agreement (TCA). The EU’s response was immediate: unfreezing the 2021 legal action commenced in response to the UK’s unilateral decision not to apply checks to incoming goods from GB to N Ireland. In the months to come, the UK may face a second legal action by the EU in respect of The NIP Bill. Without resolution, this issue could ultimately undo the TCA, igniting a trade war between the EU and the UK.

On 14 June, the first UK Government flight taking asylum seekers and refugees from the UK to Rwanda was prevented from taking off by a last minute intervention by an ECHR Judge. This intervention triggered a backlash among right-wing politicians and commentators, who began to call for the UK to withdraw from the Convention itself – a suggestion which was not discounted by the PM when he was asked about it later. It will take several months for the courts to decide whether the policy is legal: during that time, the Government appears to have accepted that no more flights to Rwanda can depart, leaving its flagship immigration policy equally grounded.

But the question of membership of the ECHR matters not only for the important principle of international protection of human rights, but because the ECHR is one of the pillars on which the Good Friday Agreement (GFA) rests. The GFA brought an end to 30 years of The Troubles, and imposed an obligation on the UK to incorporate the Convention into the law of N Ireland to make it directly enforceable in N Ireland’s courts. The UK’s 1998 Human Rights Act did this. Leaving the ECHR, therefore, to force through the Rwanda asylum policy, would breach the GFA, which the UK Government argues The NIP Bill is intended to defend.

How did we get here?

The GFA required the UK Government to remove security installations on the Border and to “normalise security arrangements” in N Ireland. The Border is totemic for both the Nationalists (seeking, broadly, union with the Republic of Ireland) and the Unionists (seeking, broadly, to remain in the UK), for different reasons (symbol of division of the island of Ireland; symbol of being part of the UK).

When the UK left the EU, the only land border between mainland UK and the EU was the Border between N Ireland and the Republic. With the UK out of the EU, there had to be a Border somewhere to control the flow of goods between the UK and the EU. The GFA meant that border could not be on the Border between N Ireland and the Republic. So the NIP agreed to place the border in the Irish Sea.

Another key provision of the GFA was the introduction of a power-sharing agreement under which the Executive would be led by representatives of both the Nationalist and Unionist communities. Originally the offices of First Minister and Deputy First Minister were nominated by members of the N Ireland Assembly on a joint ticket. Since 2006 they have been appointed by a new process under which the largest Party in the elections to N Ireland’s parliament at Stormont would fill the position of First Minister and the second-largest Party would fill the position of Deputy First Minister (in practice, both positions carry the same weight and power). From 2007 until the 5 May 2022 elections, the DUP (Unionist Party) had filled the post of First Minister and Sinn Fein the post of DFM. Those roles were reversed in the 5 May elections, with an overall majority of votes going to parties that supported the NIP. The DUP, refused to offer a candidate as DFM, bringing the N Ireland Government to a standstill, claiming that the NIP was making N Ireland a distinct and separate part of the UK and withdrew its participation in power-sharing until the NIP is abrogated.

The NIP left N Ireland in the EU’s Single Market, but took it out of the Customs Union – a fudge which was always likely to create implementation problems. Both the EU and the UK have recognized these implementation issues and have submitted separate papers to try and solve them – the UK’s July 2021 Command Paper and the EU’s October 2021 response (perhaps ironically, given that the NIP arrangement appears to be working for N Ireland, with its economy growing faster than that of the rest of the UK except London). The UK Government rejected the EU’s proposals arguing they did not go far enough in responding to the political and economic problems caused by the NIP’s implementation. Accordingly, the UK Government had been threatening to invoke Article 16 (is a safeguard clause allowing either party to take unilateral measures if applying the protocol “leads to serious economic, societal or environmental difficulties…or to diversion of trade”).

However, the results of the May elections and the subsequent DUP stance have given the UK Government cover to justify hardening its position and move to abrogate significant portions of the NIP. The NIP Bill:

– ends the oversight role of the ECJ;

– ends EU control over state aid and VAT in N Ireland

– exempts goods from GB from the obligation to go through border checks if they stay in N Ireland;

– creates a dual regulatory regime with goods going through a red lane (bound for the Republic) subject to EU standards and a green lane (staying in N Ireland) subject to UK standards; and

– gives UK ministers apparently unlimited powers with regards to most aspects of the NIP.

The UK, arguing that the NIP was disrupting GB – N Ireland trade, had already unilaterally suspended customs checks on goods entering N Ireland which were required under the NIP – which meant in effect that the NIP had never actually been applied in full. In response to this unilateral suspension, the EU had commenced legal proceeding against the UK in March 2021, but had later suspended the action to allow space for political negotiations. The EU is likely to commence a separate legal action in respect of The NIP Bill. If the EU wins either legal action and fines are imposed on the UK Government, which the UK then refuses to pay, the EU may choose to escalate by suspending the application of all or part of the TCA – triggering a trade war between the EU and the UK. Such an outcome would effectively give the hard-right in the UK what it has long sought: a hard Brexit.

For its part, the Biden Administration has already indicated that it views breaching the NIP as an impediment to any bilateral trade deal with the UK.

Comment:

Nothing will happened quickly from here:

  • It seems likely that the UK Government will not rush to force the NIP Bill through Parliament, viewing it partly as a mechanism to persuade the DUP back into power sharing in N Ireland;
  • Any EU legal action is likely to take at least a year;
  • Any decision to leave the ECHR in order to push through the Rwanda refugee policy will take time and be subject to legal challenges. It would also have undesirable secondary consequences which may give the UK Government reason to pause – for example, withdrawal from the ECHR would (according to the TCA) terminate law enforcement and criminal justice co-operation between the EU and UK and require amendment of Scottish and Welsh devolution legislation to remove references in them to Convention rights.

All of which means these two issues have plenty of time to continue to create legal uncertainty for individuals and companies trading between the UK and Ireland (or threatened with deportation to Rwanda) and to poison UK-EU, UK-Irish and UK-US relations. By the same token, however, it also offers space for a compromise to be reached.