Readers following the news about Brexit this weekend could be forgiven for feeling a certain sense of déjà vu. “No 10 prepares for confrontation in courts and House of Lords over Northern Ireland” and "trade war looms" were the headlines, as David Frost entered into a Twitter spat with the Irish foreign minister, Simon Coveney, over the Protocol on Ireland/Northern Ireland.
Yet, while the headlines felt strangely familiar, the arguments have subtly evolved over the past few months. On 21st July, the UK government published a command paper entitled “Northern Ireland Protocol: the way forward.” That paper argued that the Protocol was not working well and proposed significant changes on rules relating to customs, animal and plant health, VAT and excise, subsidy control, and governance.
It is this last issue which has provoked the latest remarks from David Frost, the minister responsible for Brexit policy. The command paper contended that “the most unusual feature of the current Protocol is Articles 12(4) to 12(7), which give the institutions of the EU, up to and including the Court of Justice, the right to enforce major elements of the Protocol’s provisions.” This now appears to have morphed into a new “red line” for ministers.
The UK has spent the past few months unilaterally extending grace periods to disapply certain rules relating to, for example, chilled meat products (including sausages), and threatening to trigger Article 16 of the Protocol, which could effectively suspend those parts of the agreement which cause economic, societal or environmental difficulties.
The European Union is expected to publish new proposals on the Northern Ireland Protocol on Wednesday, and European Commission Vice President Maros Šefovi has promised that these will be “very far reaching.” The UK government’s initial response gives the impression that, far from searching for compromises, Frost enjoys confrontation—whether or not it actually yields positive results. Nonetheless, whatever concessions it offers on the issue of the movement of goods and customs declarations, it is highly implausible that the EU will make significant concessions on the issue of governance and the role of the CJEU.
In 2018, the House of Lords European Union Committee published a report called “Dispute resolution and enforcement after Brexit.”It noted specific legal risks in seeking to exclude entirely the CJEU from any future Withdrawal Agreement, on the basis that “the ‘legal autonomy of the Union,’ as defined by the CJEU in past cases, demands that only the CJEU have the final say on the interpretation of EU law.”
The Committee considered past examples, including a case where a proposed judicial mechanism with states in the European Economic Area was fundamentally called into question by the Court in 1991; and a more recent case about the EU’s institutional accession to the European Convention on Human Rights (the draft agreement was rejected by the CJEU in 2014). The Committee concluded that “from past precedent, innovative solutions can prove problematic and could well be deemed incompatible with EU law.”
The question of the jurisdiction of the CJEU was a significant issue through the Brexit process. In the main text of the Withdrawal Agreement, a solution was reached which allowed for arbitration between the UK and the EU. However, the Agreement also required the arbitration panel to request the CJEU to give a ruling on any issue which raised a question of interpretation of a concept of EU law.
Such a mechanism might be extended to the governance of the Protocol (which currently provides for direct CJEU jurisdiction), but it is hard to see how this would address the government’s concerns about sovereignty, since the Protocol currently contains a substantial annex of provisions of EU law which continue to apply to Northern Ireland.
“One might have hoped that the government had learned from the Internal Market Bill debacle”
This issue around the CJEU is particularly difficult because, unlike some other aspects of the Protocol, it cannot simply be disapplied or suspended. Article 16 is broadly drafted and allows the parties to take unilateral safeguarding measures. But it is hard to imagine how the UK could argue that the continued jurisdiction of the CJEU was either leading to “serious economic, societal or environmental difficulties that are liable to persist,” or to a “ diversion of trade,” which are the relevant conditions to trigger that Article.
As professor Mark Elliott and George Peretz QC have both argued, Article 16 provides no legal basis for the government to remove the role of the CJEU. In order to address this issue, the government would have to legislate—both to authorise ministers to breach the terms of the Protocol, and to override the relevant provisions in the Withdrawal Act which give the Protocol primacy in domestic law.
If all of this brings a slight feeling of Groundhog Day, it is because it reflects precisely the situation that the government faced when it sought to introduce provisions to allow ministers to disapply certain parts of the Protocol in the Internal Market Bill. One might have hoped that the government would have learned from that particular debacle, which brought together an unlikely coalition of Michael Howard QC and Charlie Falconer QC to condemn the government’s plans to break international law in a “very specific and limited way.”
But perhaps it is still worth repeating that even were the government able to place new legislation before parliament, seeking to amend the operation of the Protocol and exclude the jurisdiction of the CJEU, such legislation would still breach international law if these proposals were not agreed by the European Union.
It is unclear whether the government recognises this fact. In October 2020, the Lords European Union Committee was forced to state that the legal advice published by the government on the proposed United Kingdom Internal Market Bill was “clearly wrong in law,” since it suggested that a domestic statute could cure a breach of international law. House of Lords Constitution Committee conclusions on the Bill were similarly robust: “setting out explicitly to break international law in this way is without precedent. It jeopardises international obligations the UK recently ratified, undermines domestic law and is contrary to the rule of law.”
The government, and some of its cheerleaders, may cling to a sense of legal parochialism, but as Mark Elliott has correctly argued, even were the government able to pilot such legislation through the House of Lords, parliamentary sovereignty does not provide the government with a “get out of jail free” card. Any government taking such action would face repercussions—most likely through the dispute resolution mechanisms contained within the Withdrawal Agreement itself.
Ultimately, these seemingly endless disputes may further destabilise the UK’s entire relationship with the European Union. The trade and co-operation deal struck by Boris Johnson can be terminated by either side with 12 months’ notice, and more swiftly on human rights and rule of law grounds. More likely, in the short term, there is also a danger that by raising purely ideological objections to an agreement that the UK only recently signed and ratified, the government endangers efforts to make the Protocol work on a practical level, thus further polarising communities in Northern Ireland and damaging the UK’s reputation.
