The Northern Ireland Protocol Bill would make some provisions of the Northern Ireland Protocol ‘excluded provision’, meaning they would no longer apply in domestic law. This would include provisions dealing with customs and the movement of goods between Great Britain and Northern Ireland, state aid and the jurisdiction of the Court of Justice of the European Union over the protocol. The bill would give ministers delegated powers to change which parts of the protocol would be ‘excluded provision’ in domestic law. They would also have delegated powers to make new law in connection with the protocol, such as on the movement and regulation of goods. The wide scope of these powers has been criticised and the House of Lords Delegated Powers and Regulatory Reform Committee has recommended many of them be removed from the bill.
The government argues the bill is needed because the protocol is failing to achieve all its objectives and has led to disruption to the economy and challenges to political stability in Northern Ireland. Discussions with the EU over many months have not resulted in any agreement to change the protocol. However, according to recent press reports, talks between officials could start again in early October 2022.
Power-sharing collapsed in February 2022 over Democratic Unionist Party (DUP) objections to the protocol. The DUP has welcomed the bill but has not returned to the executive. Northern Ireland remains without fully functioning political institutions. All the non-unionist parties in the Northern Ireland Assembly object to the bill. If no executive is in place by 28 October 2022, a new assembly election must be called.
The government acknowledges the bill envisages the non-performance of some of the UK’s international obligations. It maintains this is justified in international law by the doctrine of necessity. However, many legal commentators are not convinced the government has demonstrated a situation of necessity exists that would justify non-performance of the UK’s international obligations.
The EU has criticised the UK for taking unilateral action over the protocol. It has launched infringement procedures against the UK for alleged non-compliance with the protocol. The EU put forward proposals for implementing the protocol more flexibly but has ruled out renegotiating the text.
The bill was not amended in the House of Commons. MPs raised concerns about its compatibility with international law, the scope of delegated powers, what should be ‘excluded provision’ and securing the consent of different communities in Northern Ireland.
