Does the Northern Ireland protocol require certain aspects of EU law to apply in Northern Ireland and can this only happen if they are incorporated into Northern Ireland law?

CLAIM: The Northern Ireland Protocol requires certain aspects of EU law to apply in Northern Ireland but this can only happen if they are incorporated into Northern Ireland law.

CONCLUSION: INACCURATE WITH CONSIDERATION. Certain aspects of EU law do still apply in Northern Ireland as a result of the Protocol, but these do not have to be incorporated into Northern Ireland law to have effect. Section 7A of the European Union (Withdrawal) Act 2018 makes those EU laws applicable in Northern Ireland. Any future legislative changes that may be necessary to implement the Protocol, or related EU laws, could be made at Westminster if Stormont refused to act. Incorporation into Northern Ireland law is therefore not a requirement. 

Context

In a speech delivered in La Mon Hotel on 9 September 2021, the DUP leader, Sir Jeffrey Donaldson, outlined the “significant and substantial changes” to the Northern Ireland Protocol that could meet the seven tests set out by the party in July 2021. The fourth change states:

“In order to maintain the adherence of Northern Ireland to EU law as it evolves, there is a requirement for Northern Ireland Departments and the Northern Ireland Assembly to pass regulations to reflect decisions at an EU level… The Northern Ireland protocol requires certain aspects of EU law to apply in Northern Ireland but this can only happen if they are incorporated into Northern Ireland law.”

What is the Northern Ireland Protocol?

The Protocol on Ireland / Northern Ireland is a legal text that forms part of the UK-EU Withdrawal Agreement. The Protocol was agreed by the UK and EU to address the “unique circumstances” on the island of Ireland in the context of UK withdrawal from the EU. According to Article 1(iii) of the Protocol it sets out arrangements necessary to meet the following shared objectives of the UK and EU: 

  • to avoid a hard [land] border on the island of Ireland;
  • to maintain necessary conditions for North-South cooperation; and
  • to protect the 1998 Belfast ‘Good Friday’ Agreement in all its parts. 

To achieve these aims, the Protocol contains bespoke provisions for post-Brexit Northern Ireland. Under its terms, Northern Ireland remains part of the UK customs territory (Article 4) but is subject to the following:

  • the EU customs code (Article 5);
  • EU VAT rules (Article 8);
  • EU Single Market regulations for goods (Article 5);
  • EU state aid rules (Article 10): and 
  • EU regulations relating to electricity supply and energy markets (Article 9).

In addition, the Protocol guarantees Irish citizens living in Northern Ireland “no diminution” in their EU citizenship rights (Article 2) and enables Northern Ireland to remain a recipient of dedicated EU PEACE and INTERREG funding (the Preamble). Taken together, these provisions ensure that goods can continue to flow freely between Northern Ireland, Ireland and the rest of the EU, thereby avoiding the need for a “hard” land border.

As the substantive provisions of the Protocol only apply to Northern Ireland, and not the rest of the UK, the Protocol’s implementation in the post-Brexit context creates new barriers to trade in goods between Great Britain and Northern Ireland. This is because when goods now enter Northern Ireland they are, in effect, entering the EU’s Single Market and, therefore, additional checks and controls are applied.

Does the Protocol require certain aspects of EU law to apply in Northern Ireland?

Yes. The Protocol requires that those aspects of EU law necessary to avoid a physical hardening of the border on the island of Ireland continue to apply in post-Brexit Northern Ireland. In effect, Northern Ireland remains within the EU’s Single Market for goods despite it having formally left the bloc along with the rest of the UK on 31 January 2020. 

Most of those EU laws that continue to apply in Northern Ireland are listed in the Annexes of the Protocol. The table below summarises some of the EU law instruments (regulations, directives and decisions) listed in the Protocol Annexes when the text was concluded by UK and EU negotiators in October 2019. 

Annex Area Regulations, Directives, Decisions*
1 Individual Rights 6
2 Trade in Goods 287
3 VAT and Excise 19
4 Single Electricity Market 7
5 State Aid 19
Total 338

*Not included are the small number of EU treaty articles references in the Protocol, ‘soft law’ texts (e.g., commission communications) mostly included in Annex 5, and a small number of unspecific provisions noted in the Annexes.

Under Article 13(iii) of the Protocol, those instruments of EU law that it makes applicable in Northern Ireland are to apply “as amended or replaced”. This puts Northern Ireland in a position of ‘dynamic alignment’ with a potentially evolving selection of EU laws. Dynamic alignment is the idea that parties to a trade agreement continue to maintain equivalent regulatory standards to each other in future.

By agreeing to the Protocol, the UK government committed to keep Northern Ireland aligned with any changes made to the EU legal instruments listed in the text of the Protocol and its Annexes. 

Does this EU law need to be incorporated into Northern Ireland law for this to happen?

No. At least, not necessarily. Under the European Union (Withdrawal) Act 2018 which gave the Withdrawal Agreement domestic effect, the Protocol has legal force in UK law without further enactment.

Section 7A of the EU (Withdrawal) Act 2018 provides that “all such rights, powers, liabilities, obligations and restrictions” created by or arising under the UK-EU Withdrawal Agreement are given legal effect in the UK forthwith. The language of section 7A mirrors that of section 2 of the (repealed) European Communities Act 1972 that previously gave all EU law ‘direct effect’ in the UK when it was still an EU Member State. 

According to Article 13(iii), the EU laws that apply under the Protocol are to be read “as amended or replaced”. The section 7A ‘direct effect’ clause of the EU (Withdrawal) Act 2018 acts as a “conduit pipe” (as per Miller v Secretary of State for Exiting the EU [65]) through which new and revised EU laws included in the scope of the Protocol have legal force in the UK. 

However, there is a complication that follows on from the nature of EU law-making and the UK’s dualist legal system. Although EU laws listed in the Protocol already have domestic legal force under section 7A of the EU (Withdrawal) Act 2018, the content of laws made at EU-level will, very often, need to be implemented via dedicated domestic secondary legislation – either UK-wide or NI-specific. What this means is that changes to EU laws that apply to Northern Ireland as a consequence of the Protocol (and under section 7A of the 2018 Act) are likely to need to be incorporated into domestic secondary legislation before taking full effect. 

This does not, however, mean that “the adherence of Northern Ireland to EU law as it evolves …can only happen if they are incorporated into Northern Ireland law” 

Incorporating changes that arise from the ‘dynamic alignment’ of Northern Ireland to EU laws listed in the Protocol could happen in either Stormont or at Westminster. Where domestic implementation legislation is required and the policy area is in the competence of the devolved Northern Ireland institutions, then the default process will be for legislation to be passed at Stormont. However, if the Northern Ireland Assembly could not, or would not, pass legislation necessary to implement EU law changes arising from the Protocol, the Secretary of State for Northern Ireland would, under section 26 of the Northern Ireland Act 1998, be obliged to legislate at Westminster instead. 

It is therefore not accurate to say that adherence to those EU laws that are applicable in post-Brexit Northern Ireland as a consequence of the Protocol can ‘only happen’ if they are incorporated into Northern Ireland law. 


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