Thursday, 12 May 2022

UK / EU / Northern Ireland - yet again !

It could never be sensibly claimed that the European Union is a perfect international structure. Often, it is highly bureaucratic with a marked tendency to enact an excess of legislation which, via the European Treaties, can take the form of Regulations or Directives and, as such, bind member States. 

When my country (the UK) was a member, I often wished that the EU would enact fewer "rules" and concentrate on the essentials. I also wished that military matters were kept for the member states and NATO and were not at all within the remit of the EU.

Nonetheless, the EU is a hugely powerful economic entity - Economy (europa.eu) - and in so many other ways it is a force for the better. For me,

the scales tipped in favour of the UK remaining a member but I am not rehearsing the arguments here. The matter was settled (finally) by the 2019 general election which, via the UK's first-past-the-post electoral system, gave the Conservative Party (led by Boris Johnson) a large majority in the House of Commons.

The UK left the EU with the Withdrawal Agreement in place - Law and Lawyers: Brexit - key links and analysis (obiterj.blogspot.com)

Today, relations between the UK and the EU are largely conducted within the terms of the Withdrawal Agreement and also the Trade and Cooperation Agreement (TCA) of December 2020 - Law and Lawyers: UK-EU Trade and Cooperation Agreement (TCA) ratified by EU (obiterj.blogspot.com)

A crucial part of the Withdrawal Agreement is the so-called Northern Ireland Protocol. The Protocol is an integral part of the Withdrawal Agreement and not some "bolt on" that can be easily tossed aside.

A key aim of the protocol was to avoid any form of "hard" border (perhaps with physical infrastructure?) between Northern Ireland and the State of Ireland - the latter continuing to be a member of the EU. The avoidance of such a border was, and I believe still is, considered necessary if the stability of the Northern Ireland peace process is to be maintained.

A consequence of avoiding a hard border across the island of Ireland is that various restrictions apply to trade between Northern Ireland and Great Britain. In effect, a form of border down the Irish Sea.

The protocol contains Article 16 - Law and Lawyers: Article 16 of the Northern Ireland Protocol (obiterj.blogspot.com).  

Given that the present British government was elected on the basis of "Get Brexit Done", the protocol has scarcely been out of the news. Under pressure from Northern Ireland's Democratic Unionist Party (DUP) the government has frequently threatened to trigger Article 16 arguing that it is somehow causing "serious economic, societal or environmental difficulties that are liable to persist." Whatever those words entail, it appears objectively difficult to argue that the grounds to trigger the protocol actually do exist.

The Northern Ireland Assembly elections held on 5 May 2022 resulted in the DUP having 25 seats. Sinn Fein have 27 seats and others parties hold the other 38 seats. Northern Ireland Assembly Election Results 2022 - BBC News 

This outcome appears, if anything, to suggest that the people in Northern Ireland are not, on the whole, too concerned about the protocol. Of course, it must be accepted that the election was not specifically targeted at the protocol itself. Maybe an opportunity has been missed to actually find out the specific view of those who live and work there.

It is now reported that the Attorney-General (Suella Braverman) has given the government advice that "scrapping the protocol is legal" - see Brexit: Scrapping Northern Ireland protocol is legal, says attorney general - BBC News

This advice appears to me to be akin to a lawyer telling a client what the client wishes to hear and NOT what the client needs to hear. Unpopular as it can be, only the latter should be the role of any legal adviser.

We will see how this goes and the reaction of the EU remains to be seen even though, so far, the EU has acted in a calm and measured way whenever Article 16 has been raised.

A major concern is that the EU sees any UK action as unwillingness to abide by the entire Withdrawal Agreement of which the protocol is an integral part and it is entirely fair to point out that the UK government freely signed up to the withdrawal agreement - protocol and all. Or did Prime Minister Johnson just sign it to "Get Brexit Done"? 

The possible implications for future UK / EU relations could be immense and maybe we are about to find out ....

House of Commons Briefing:

Northern Ireland Protocol - House of Commons Library (parliament.uk)

UK Human Rights blog - see this post and podcast - Law Pod UK Latest Episode: Belfast special report. Elections, the Northern Ireland Protocol and non-diminution of EU rights - UK Human Rights Blog

Links:

Experts scorn UK government claim it can ditch parts of NI protocol | Brexit | The Guardian

Brexit trade deal change must result in NI government - PM - BBC News

NI protocol: Unilateral action by UK government 'could erode peace' - BBC News

Northern Ireland: Truss to set out plans on post-Brexit trade deal - BBC News

8 June 2022 - Concerns Raised At Top Of Government Over Legality Of Northern Ireland Protocol Bill (politicshome.com)

9 June 2022 - NI Protocol: 'Historic low point' if UK unilateral action taken - BBC News

11 June 2022 - There's one clear winner after Boris Johnson's grim week and it's not Keir Starmer - or the Tory rebels | Politics News | Sky News


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