Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-nmvwc Total loading time: 0 Render date: 2024-06-22T23:25:04.635Z Has data issue: false hasContentIssue false

Part IV - Governance of the Protocol in Ireland and the United Kingdom

Published online by Cambridge University Press:  20 January 2022

Christopher McCrudden
Affiliation:
Queen's University Belfast

Summary

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2022
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0 https://creativecommons.org/cclicenses/

9 The Status of the Withdrawal Agreement in UK Law

Catherine Barnard
9.1 Introduction

Taking the long view, the Withdrawal Agreement (WA) is likely to be remembered for two matters: the position it takes on the protection of citizens’ rights (provisions which have the potential, as we shall see, to last for well over a century) and the provisions of the Protocol which could last indefinitely – or perhaps no longer than four years, depending on the outcome of consent votes in the Northern Ireland Assembly.Footnote 1 This chapter looks primarily at the effect of the WA in the UK as a whole.Footnote 2 It will focus on the implementation of the WA in UK law, the enforcement of rights under the Protocol, as they relate to the UK, and the position of EU citizens and their rights.

9.2 Implementation of the WA into UK Law

The WA, an international treaty, provided for the exit of the UK from the EU. Under the UK’s dualist approach, Parliament was required to legislate in order to give the WA legal effect in the UK. This was accomplished by the European Union (Withdrawal Agreement) Act 2020 (EUWAA 2020) which, in part, amended the European Union (Withdrawal) Act 2018 (EUWA 2018). The WA took effect in UK law from exit day (31 January 2020, at 11.00 pm).Footnote 3 The Trade and Cooperation Agreement (TCA), which regulates future relations between the EU and the UK and applies in tandem with the provisions of the WA, came into effect in the UK via the European Union (Future Relations) Act 2020 (EUFRA) at the end of December 2020.

What was to be done about the significant mass of EU law that applied in the UK prior to the UK’s exit? Although the UK left the EU on 31 January 2020, under the terms of the WA, the UK then entered into a period of transition (or, in British terminology, implementation), which lasted from 1 February 2020 to 11 pm on 31 December 2020, Implementation Period Completion Day (IPCD). During this transition/implementation period, most of EU law continued to apply in the UK, as EU law.Footnote 4 EUWA 2018 provided that when the UK finally left the EU, all EU legislation then applying was to be ‘on-shored’ into UK law, becoming ‘retained EU law’ and giving powers to ministers to amend that legislation where retained EU law no longer operates effectively. Section 5(2) EUWA 2018 provides for the continuation of the supremacy of this EU retained law over conflicting pre-Brexit UK law.

The 2018 Act, as amended, gives effect to the whole of the WA (including the Protocol) in UK law and also gives ministers specific powers to implement matters affecting the Protocol. The principal conduit pipe for the incorporation of the UK’s obligations under the WA is section 7 A EUWA 2018 (‘General implementation of remainder of withdrawal agreement’), introduced as a result of section 5 of EUWAA 2020. The key parts of section 7 A provide:

  1. (1) Subsection (2) applies to –

    1. (a) all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and

    2. (b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement, as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.

  2. (2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be –

    1. (a) recognised and available in domestic law, and

    2. (b) enforced, allowed and followed accordingly.

  3. (3) Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2).

The striking feature of section 7 A is how far it draws on the controversial language of section 2(1) European Communities Act 1972 (ECA 1972),Footnote 5 which had been read to give direct effect and supremacy to EU law, and was viewed in UK law as constituting a ‘constitutional statute’. We will return to this point later.

The rights of EU citizens in Part Two of the WA apply to the UK, as do the provisions of the Protocol, since section 7 A applies to the territory of the UK as a whole.Footnote 6 In addition, section 8C of the 2018 Act (‘Power in connection with Ireland/Northern Ireland Protocol in withdrawal agreement’) provides additional powers to implement the Protocol. A minister of the Crown may by regulations make such provision as the minister considers appropriate –

  1. (a) to implement the Protocol on Ireland/Northern Ireland in the withdrawal agreement,

  2. (b) to supplement the effect of section 7 A in relation to the Protocol, or

  3. (c) otherwise for the purposes of dealing with matters arising out of, or related to, the Protocol (including matters arising by virtue of section 7 A and the Protocol).

9.3 Enforcement of Rights
9.3.1 Introduction

As we have noted, the text of section 7 A EUWA 2018 draws heavily on the original language of section 2(1) ECA 1972, which was understood to give direct effect and supremacy to EU law in the UK. However, section 7 A is intended to give direct effect and supremacy not to EU law but to the WA, thereby expressly implementing the commitments in Article 4(1) and (2) WA, which provides:

  1. 1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

  2. 2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

The reference to ‘direct effect’ in Article 4(1) and ‘supremacy’ in Article 4(2) is a first for an EU Treaty. For good measure, Article 4(3)Footnote 7 makes clear that these concepts should be given an EU meaning: ‘The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law.’

The acceptance of the supremacy and the direct effect of the WA, via section 7A, might be thought to be somewhat ironic given the UK’s express rejection of the supremacy of EU law by section 1 EUWA 2018 (which turns off section 2(1) ECA 1972), and is reiterated in section 5(1) EUWA 2018.

9.3.2 Individual Enforcement

The effect of section 7 A EUWA 2018, combined with Article 4(1) WA, is that provisions of the WA can be enforced in UK law by ‘individuals’, which is EU-speak for natural and legal persons. So, an EU producer who cannot sell its goods in Northern Ireland could challenge a decision by the Northern Ireland authorities in a Northern Ireland court, relying on the principle of direct effect and the supremacy of the WA, and a reference under Article 267 of the Treaty on the Functioning of the European Union (TFEU) can be made by that court to the Court of Justice of the European Union (CJEU) if necessary.Footnote 8

Similarly, a GB business which cannot sell a good into Northern Ireland because, it argues, a Northern Ireland authority has misapplied one of the many single market regulations that continue to apply in Northern Ireland by virtue of Protocol Annex 2 could bring a claim. Alternatively, a GB (or an EU) business prosecuted for non-compliance with Northern Ireland primary or secondary legislation could raise the incompatibility of that legislation with one of the provisions listed in Annex 2. Any such claim may also raise the incompatibility of the Northern Ireland legislation with Articles 5 and 7 to 10 of the Protocol.

Many of the provisions in the EU regulations and the directives in Annex 2 fulfil the conditions for direct effect (clear, precise and unconditional), and therefore come within Article 4 of the WA, read together with section 7 A and section 8C EUWA 2018. They will also have supremacy over conflicting UK law.

9.3.3 Responsibility of the UK Government

Protocol Article 12(1) (‘Implementation, application, supervision and enforcement’) provides that the UK government is responsible for ‘implementing and applying the provisions of Union law made applicable by this Protocol to and in the United Kingdom in respect of Northern Ireland’. This means that any breach of the Protocol is the responsibility of the UK government, with the result that the Commission may bring enforcement proceedings against the UK government under Article 258 TFEU in respect of aspects of the Protocol.Footnote 9 As Protocol Article 12(4) provides:

As regards the second subparagraph of paragraph 2 of this Article, Article 5 and Articles 7 to 10, the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom and natural and legal persons residing or established in the territory of the United Kingdom have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties in this respect. The second and third paragraphs of Article 267 TFEU shall apply to and in the United Kingdom in this respect.

If the UK does not comply, then further enforcement proceedings may be brought against the UK. Since Protocol Article 12(5) provides that ‘Acts of the institutions, bodies, offices, and agencies of the Union adopted in accordance with paragraph 4 shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States’, the CJEU may also, on the basis of a proposal from the Commission, impose a lump sum or daily penalty payment, or both, on the UK.Footnote 10

In addition to the normal EU system of remedies, Protocol Article 13(1), sub-paragraph 3, makes clear that Part Six of the WA, the Institutional and Final provisions, which include the bespoke dispute resolution mechanism (DRM), also applies. The DRM involves, in essence, a political consultation which – if unsuccessful – is followed by binding arbitration (with the possibility of a reference to the CJEU on matters concerning EU law).Footnote 11 The arbitration panel may ultimately impose financial sanctions. In case of non-payment or persisting non-compliance by one party, the other party may suspend its obligations under the WA (with the exception of the citizens’ rights part of the WA) or from the TCA, such as by imposing tariffs on the imports of goods.

9.3.4 A Case Study

A dispute that arose soon after the WA and the Protocol took final effect illustrates the practical operation of these provisions, and how they may operate in tandem. As a result of the UK’s unilateral decision to extend grace periods under the Protocol in March 2021, the EU deployed a two-pronged approach to enforcement against the UK. Vice-President Maroš Šefčovič sent a political letter to Lord Frost,Footnote 12 the UK’s co-chair of the Joint Committee (JC), calling on the UK government to rectify and refrain from putting into practice the statements and guidance published in early March 2021. In its letter, the Commission said:

The Protocol on Ireland and Northern Ireland is the only way to protect the Good Friday (Belfast) Agreement and to preserve peace and stability, while avoiding a hard border on the island of Ireland and maintaining the integrity of the EU single market. The EU and the UK agreed the Protocol together. We are also bound to implement it together. Unilateral decisions and international law violations by the UK defeat its very purpose and undermine trust between us. The UK must properly implement it if we are to achieve our objectives. That is why we are launching legal action today. I do hope that through the collaborative, pragmatic and constructive spirit that has prevailed in our work so far on implementing the Withdrawal Agreement, we can solve these issues in the Joint Committee without recourse to further legal means.

The letter noted that these unilateral measures are ‘a violation of the duty of good faith under Article 5 of the Withdrawal Agreement’. The letter also called on the UK to enter into bilateral consultations in the JC in good faith, with the aim of reaching a mutually agreed solution by the end of March. The reference to the JC concerned consultations prior to the formal commencement of the DRM in Part Six of the WA.

In addition, the Commission sent the UK a Letter of Formal Notice for breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland. The Commission noted: ‘This marks the beginning of a formal infringement process, as set out in Article 12(4) of the Protocol, in conjunction with Article 258 of the Treaty on the Functioning of the European Union’, relying on the Commission’s supervisory and enforcement powers under the EU Treaties in relation to specific provisions of the Protocol, including Article 5. The letter requested the UK to carry out swift remedial actions to restore compliance with the terms of the Protocol.

The Commission, therefore, triggered two sets of proceedings against the UK, one for breach of Article 5 WA using the bespoke DRM, the second for breach of Protocol Article 5 using the standard Article 258 TFEU enforcement mechanism. In respect of the Article 258 TFEU enforcement proceedings, the UK had a month to submit its observations. Reportedly, it did so with a robust response. In respect of the DRM, the Commission said that ‘if the UK fails to enter into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution by the end of this month, the EU may provide written notice to commence consultations under Article 169 WA, as a first step in the Dispute Settlement Mechanism process set out in Title III of Part Six of the Withdrawal Agreement’. At the end of July 2021, the Commission decided to suspend these proceedings ‘in order to provide the necessary space to reflect … and find durable solutions to the implementation of the protocol’.Footnote 13

9.4 Citizens’ Rights
9.4.1 The Rules

In addition to the Protocol, the WA also addresses important issues in respect of citizens’ rights in Part Two. These obligations are implemented in the UK by Part Three of the EUWAA 2020.Footnote 14 The 2020 Act provides continued residency rights to all EU citizens and their non-EU family members (NEFM) who exercised their right to reside lawfully in the UK before the end of the transition/implementation period (31 December 2020). It also gives the same rights to Norwegian, Icelandic and Liechtenstein nationals under the European Economic Area–European Free Trade Association (EEA–EFTA) separation agreement, and Swiss nationals under the Swiss citizens’ rights agreement. For simplicity, we shall refer to EU citizens throughout, but note that these other groups are also covered. The 2020 Act also protects the existing rights to equal treatment and non-discrimination for EU citizens and their NEFM in the UK.

Children are protected under the WA when they are born to, or legally adopted by, those falling under the WA. This protection may last a lifetime. The deadline for applying is 30 June 2021, but there is the possibility of applying after that date if the individual has ‘reasonable grounds’. The Guidance released by the Home Office on what constitutes ‘reasonable grounds’ says that children are eligible to make an application to the scheme up until they reach the age of eighteen (more on this later).

The WA provides that those who have resided legally in the host state in accordance with Union law for a continuous period of five years have the right to permanent residency and those who have resided in the host state for less than five years have the right to acquire permanent residency once they have completed the required five-year period of residence.Footnote 15

In the UK, EU nationals and their NEFM are granted either settled status (five years or more of residency) or pre-settled status (less than five years’ residency).Footnote 16 In the UK, prospective EU settled status applicants need prove only that they have been continuously resident in the UK, rather than that they have been continuously resident and exercising their EU Treaty rights – such as being in work, education, self-employment or self-sufficiency – as they would if they were applying for benefits. The WA says that the right to permanent residency can be lost only through an absence from the host state for a period exceeding five consecutive years. Those with pre-settled status who need to reapply for settled status will need to evidence their ‘continuous’ residency in the UK; this means that they must not be absent from the UK for more than six of twelve rolling months.

The WA also sets out some procedural and administrative guidance/rules regarding issuing residence documents.Footnote 17 It says that the deadline for submitting an application should not be less than six months from the end of the transition period – the UK has implemented this exactly with a 30 June 2021 deadline. The WA says that the administrative procedures for applying must be smooth, transparent and simple, without any unnecessary administrative burdens, and that the application forms must be short, simple and user-friendly. Further, the residence document issued must be free of charge or otherwise not cost more than nationals are charged for similar applications.Footnote 18

The rights of workers and self-employed persons are outlined under the WAFootnote 19 and these remain broadly the same rights as this group held pre-UK exit from the EU under Union law, including equal treatment protection. The WA also covers the rights of frontier workers – these are people who have their residence in one member state but regularly work in another. It also outlines the continuation of the recognition of professional qualifications cross-borders before the end of the transition period.Footnote 20

Article 30 WA states that EU regulations around social security co-ordination continue to apply to those who fall within the scope of the WA. As we have seen, in the UK, while settled status confers an automatic ‘right to reside’ for the purpose of welfare benefits, those with pre-settled status must also satisfy additional requirements – such as being in work – in order to be able to access welfare benefits. This tiered distinction between two groups of residency rights holders (ie, those with settled status and those with pre-settled status) in the UK has recently come under scrutiny and is the subject of an appeal as to the legal status of such a distinction.Footnote 21 The outcome of the case will have a significant impact on the lives of some 2.3 million EU pre-settled status holders residing in the UK.

To oversee the implementation of Part Two of the WA in the UK, an Independent Monitoring Authority (IMA) has been established.Footnote 22 The WA also establishes a JC of the UK and the EU to oversee application of the WA. The CJEU remains partly competent in respect of EU citizens’ rights. This means that the UK courts will continue to pay due regard to decisions of the CJEU as well as being able to refer questions of interpretation to the CJEU, where relevant, until 2028.

9.4.2 What This Means for EU Citizens with (Pre-)Settled Status

The effect of obtaining (pre-)settled status means that EU citizens will be able to work in both GB and Northern Ireland. (As EU citizens they will also be able to work in Ireland, relying on their free movement rights under EU law.) Any breach of those rules in GB or in Northern Ireland may be challenged in the courts of Northern Ireland or GB, depending on where the breach occurred, relying on the direct effect of the provisions in Part Two of the Protocol, as outlined in Section 9.3 of this chapter. They may also complain to the IMA. For EU citizens arriving in the UK after 1 January 2021, they must either rely on the mobility provisions in the TCA or come under UK domestic immigration law.Footnote 23 UK citizens will continue to be able to live and work in Northern Ireland, and Irish citizens in the UK, by virtue of the terms of the Common Travel Area (CTA), which predated EU membership.Footnote 24 The rights under the CTA have recently been reaffirmed in a Memorandum of Understanding between the UK and Ireland.Footnote 25

9.5 Conclusions

The relationship between the UK and the EU during the first few months after the end of the transition/implementation period was described as ‘a bit bumpy’.Footnote 26 The UK’s reaction to handling the hypersensitive issue of the Protocol made matters more difficult. The EU followed up what it saw as the UK’s non-compliance, triggering the dispute settlement procedures under the WA, albeit this is currently suspended. Private parties may also enforce their rights, but at the time of writing there was no example of this. Meanwhile, EU citizens with settled status enjoy protection similar to that under EU law and also benefit from a robust enforcement mechanism.

10 The Protocol in Northern Ireland Law

Gordon Anthony
10.1 Introduction

This chapter provides an overview of the Protocol’s position in Northern Ireland law. It does so by focusing on the ‘legal hybridity’ that results from the application of different legal rules under and outside the Protocol. While Northern Ireland is still formally a part of the UK,Footnote 1 the reality is that its legal and political institutions now have obligations in relation to two constitutional orders. It is a point that will remain true for so long as the Protocol is in force: presently for four years, with the option of extension by ‘democratic consent’.Footnote 2

The chapter has two main objectives. The first is to consider the nature of the legislative framework that has given effect to Brexit and how that intersects with the Northern Ireland Act 1998 (NI Act 1998). In terms, this is a point about overlapping ‘constitutional statutes’ and whether the Brexit legislation – principally the European Union (Withdrawal) Act 2018 (as amended) (EUWA 2018) – is consistent with all aspects of the Northern Ireland ‘constitution’ (ie, the Belfast-Good Friday Agreement 1998 (1998 Agreement) and the NI Act 1998).Footnote 3 Certainly, the Protocol is said in Article 1 to have the express objective of safeguarding the 1998 Agreement ‘in all its dimensions’, whether those relate to (for instance) the protection of rightsFootnote 4 or North–South co-operation.Footnote 5 However, it has since been argued in proceedings in the domestic courts that aspects of the Northern Ireland constitution have been weakened by the legislation that gives domestic legal effect to the Protocol, in ways that contradict the logic of case law on constitutional statutes.Footnote 6 This chapter assesses the strength of those arguments and asks whether legal hybridity itself is contrary to parts of the Northern Ireland constitution.

The second objective is to consider the nature of the obligations that arise under and outside the Protocol. In the first instance, this is a point about the ongoing application of aspects of EU law in Northern Ireland, where Article 4(1) of the Withdrawal Agreement (WA) reads:

The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States … the United Kingdom shall ensure … its judicial and administrative authorities [have powers] to disapply inconsistent or incompatible domestic provisions.

While the corpus of EU law that has effect in this way does so by reason of an international Treaty, Article 4 appears as a reformulation of the supremacy doctrine that was developed in case law such as Costa v Enel and Simmenthal.Footnote 7 This is where the legal hybridity of the Protocol takes form, as, to the extent that Northern Ireland’s institutions are bound by norms of EU law under the Protocol, they must follow different rules when engaged in decision-making outside it. The chapter identifies the legal basis for the application of those different rules and ‘who’ must do ‘what’, and ‘when’, as a matter of Northern Ireland law.

10.2 The EUWA 2018 and the Protocol

The legal hybridity that has been created by the Protocol starts with EUWA 2018, as amended by the European Union (Withdrawal Agreement) Act 2020 (EUWAA 2020). The first purpose of EUWA 2018 is, of course, to make provision for the domestic law effects of Brexit, where it governs decision-making outside the Protocol not just in Northern Ireland but in the UK more widely. The relevant sections of the Act are considered in Chapter 9 in this volume,Footnote 8 and only the following features are noted here: (i) the Act of 2018 expressly repealed the European Communities Act 1972 (ECA 1972) but kept many aspects of EU law on the statute book as ‘retained EU law’;Footnote 9 (ii) the principle of supremacy no longer applies on its original terms, albeit the courts can still have regard for rulings of the Court of Justice of the European Union (CJEU) when interpreting retained EU law;Footnote 10 (iii) references to Article 267 of the Treaty on the Functioning of the European Union (TFEU) are not possible, and nor is the Charter of Fundamental Rights (CFR) a part of domestic law;Footnote 11 (iv) retained EU law can be modified by the devolved institutions in Northern Ireland in areas within their competence but not where particular aspects of EU law are specified in regulations made by a minister of the Crown;Footnote 12 and (v) the general principles of EU law now have only a limited reach in domestic law and, post-Brexit, Francovich actions are not possible.Footnote 13

The primary provision of the EUWA 2018 in terms of decision-making under the Protocol is section 7A, inserted by EUWAA 2020. Titled ‘General implementation of remainder of withdrawal agreement’, this section provides: ‘(2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures [in the WA] are to be – (a) recognised and available in domestic law, and (b) enforced, allowed and followed accordingly’; and ‘(3) Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2)’.

The full significance of section 7 A becomes apparent when it is read beside Article 4(1) WA (above) and Articles 12(4) and 13(2)–(4) of the Protocol, as these embed EU law (including its general principles and remedies) into the law of Northern Ireland. Article 4(1)’s specific effect is thus to make the provisions of EU law listed in the Protocol applicable in Northern Ireland, where Article 12(4) provides, as regards Articles 5 and 7–10 of the Protocol (and their Annexes), that the CJEU ‘shall have the jurisdiction provided for in the Treaties in this respect. The second and third paragraphs of Article 267 TFEU shall apply to and in the United Kingdom in this respect.’ Article 13(2)–(4) in turn reads:

[T]he provisions of this Protocol referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the [CJEU] … [W]here this Protocol makes reference to a Union act, that reference shall be read as referring to that Union act as amended or replaced … [T]he [EU may adopt] a new act that falls within the scope of this Protocol, but which neither amends nor replaces [an EU] act listed in the Annexes to this Protocol.

Section 7 A is not the only provision of EUWA 2018 that gives effect to the Protocol – for instance, section 8C confers on ministers of the Crown wide regulation-making powers in relation to it, and section 10 (on protection for North–South co-operation) was amended in the light of Article 11 of the Protocol.Footnote 14 However, for the purposes of legal hybridity, section 7A, as read with the Act more generally, establishes the different sets of rules that must be followed by Northern Ireland’s institutions, including its courts. While it might be argued that such hybridity is simply a carry-over of the hybridity that applied under the ECA 1972 – where UK courts frequently observed different procedural and substantive rulesFootnote 15 – the fact that aspects of EU law now apply in only Northern Ireland means that the analogy is not a perfect one. In short, while EU law had previously applied throughout the UK as a whole and in the light of the wider devolution settlement, the Protocol has placed Northern Ireland in a truly unique position. Indeed, it may, on one reading, even be queried whether ‘legal hybridity’ is a strong enough descriptor: economic constitutionalism and the EU’s historical experience with sectoral integration might suggest that something more fundamental is afoot.Footnote 16

10.3 The NI Act 1998 and the Protocol

The Protocol has also been implemented through amendment of the NI Act 1998 – and some parts of the Act can now be understood only when read alongside provisions of EUWA 2018. While it is arguable that the ‘catch-all’ nature of section 7 A EUWA 2018 would have made all necessary changes by implication (albeit that would raise a question about the interplay of ‘constitutional statutes’; see Section 10.4), the reality is that the complexities of the Protocol required further, specific changes to the NI Act 1998. Those complexities are, of course, a result of the complexities of the 1998 Agreement itself, as the Protocol is intended to protect that Agreement ‘in all its dimensions’.Footnote 17 Four provisions of the Protocol in this regard are of particular importance.

The first provision is Article 2, which relates to the protection of rights and, as a result of sections 6(2)(ca) and 24(1)(aa) of the NI Act 1998, now limits the powers of the devolved institutions. The implications of that Article are considered in more detail in a subsequent chapter and will not be analysed in any depth here.Footnote 18 However, one point that can be made concerns the CFR and the range of Directives that is listed in Annex I to the Protocol. This is one area where the dynamism of the CFR might well continue to be evident in Northern Ireland law, as the CJEU may draw upon it if required to rule upon the meaning of the Directives – or, indeed, new Directives within the scope of the Protocol – in the future.Footnote 19 In the event that it were to do so, the Northern Ireland courts would be required to follow that case law by reason of Article 13(2), which states that: ‘the provisions of this Protocol … shall in their implementation and application be interpreted in conformity with the relevant case law of the [CJEU]’. The contrast with the position under section 5 EUWA 2018 – which provides that the CFR does not apply in UK law more generally – could well become of more than passing significance.

The second provision is Article 11, which states that the Protocol ‘shall be implemented and applied so as to maintain the necessary conditions for continued North–South cooperation, including in the areas of environment, health, agriculture, transport, education and tourism, as well as in the areas of energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport’. This is one area where the NI Act 1998 is to be read alongside EUWA 2018, as section 10 of that Act (among others) safeguards the multilayered arrangements that underlie North–South co-operation. Such co-operation was envisaged by Strand Two of the 1998 Agreement (as supported by the British–Irish Agreements of 1998 and 1999), and it takes form in Northern Ireland law in, inter alia, a ministerial duty to participate in meetings of the North–South Ministerial Council, and the possible exercise of legislative powers in relation to agreements reached there.Footnote 20 The multilayered nature of these arrangements is such that the legal structures for co-operation are found in international law but with a basis in political agreement in Northern Ireland, and this is where section 10 EUWA 2018 becomes significant. Originally enacted before the Protocol was agreed, it was amended in its light and now does three main things: (1) it imposes a duty on ministers of the Crown and Northern Ireland ministers and departments to act compatibly with the NI 1998 when exercising powers under EUWA 2018; (2) it prohibits ministers of the Crown from making regulations which would diminish any form of North–South co-operation as provided for by the 1998 Agreement or which would facilitate physical border infrastructure on the island of Ireland; and (3) it prohibits a minister of the Crown from agreeing to any recommendation by the Protocol’s Joint Committee (JC) that would alter the arrangements for North–South co-operation in the 1998 Agreement, establish a new implementation body, or alter the functions of an existing implementation body. Point (3) would suggest that any such changes would be possible only through a further British–Irish agreement, where previous agreements have been contingent upon political agreement within Northern Ireland itself.Footnote 21

The third provision is Article 13(4). This envisages the adoption by the EU of an act which may either amend or replace existing acts in the Protocol or be in the form of a new act ‘that falls within the scope of this Protocol’. This is where the Protocol is arguably at its most controversial in terms of democratic principle, as it gives the UK government only a peripheral role in relation to such acts and attributes no role at all to the Northern Ireland institutions. Domestic law does, however, oblige those institutions to track developments in relation to Articles 2, 5 and 7–10 of the Protocol, where the Secretary of State has a power under section 26(2) of the NI Act 1998 to make an order in relation to the discharge of international obligations. While it is, of course, unclear quite how those obligations will develop in the future, they lend themselves to a more general point about the Northern Ireland institutions existing as ‘rule-takers’ under the Protocol, rather than as ‘rule-makers’. They are, moreover, rule-takers who could potentially be liable for ‘sufficiently serious’ breaches of EU law in accordance with the Francovich’ principle – such is the combined effect of Article 4(1) WA and section 7A(2) EUWA 2018.

The fourth provision is Article 18, which is titled ‘Democratic consent in Northern Ireland’. This Article provides that, four years after the end of the transition period, the UK government must ‘seek democratic consent in Northern Ireland in a manner consistent with the 1998 Agreement’ for the continued application of Articles 5–10 of the Protocol. A number of possible outcomes are envisaged by the Article: (i) a majority of members of the Northern Ireland Assembly (the Assembly) may vote to continue the application of Articles 5–10, in which instance they will apply for a further four years; (ii) there is ‘cross-community’ support (ie, majority support within unionism and nationalism) for the continued application of Articles 5–10, in which instance they will apply for a further eight years; and (iii) a majority of members of the Assembly may vote not to continue the operation of Articles 5–10. In this third instance, Articles 5–10 will remain in force for a further two-year period during which time the JC must make recommendations about future arrangements ‘taking into account the obligations of the parties to the 1998 Agreement’.

The mechanisms for obtaining such consent are a matter for the UK alone,Footnote 22 and the NI Act 1998 has since been amended by regulations made under EUWA 2018.Footnote 23 The primary amendments are found in Schedule 6 A to the NI Act 1998, which makes provision for a ‘default democratic consent process’Footnote 24 and an ‘alternative democratic consent process’.Footnote 25 Of particular note is paragraph 18 of the Schedule, which ‘applies in relation to any motion for a consent resolution whether the default democratic consent process or the alternative democratic consent process is applicable’.Footnote 26 According to that paragraph, the Assembly may vote on a consent motion only once and, by paragraph 18(5), section 42 of the NI Act 1998 ‘does not apply in relation to a motion for a consent resolution’. Section 42 governs the ‘petition of concern’ mechanism whereby either of Northern Ireland’s two main ethno-national groups can veto measures with which they disagree, and the regulations that inserted Schedule 6 A have thus written out a key feature of the original 1998 Agreement. The significance of this point is returned to in Section 10.4.

10.4 Constitutional Statutes and the Protocol

The remaining matter to be addressed in this chapter is how to conceive of the interplay between EUWA 2018 and the NI Act 1998. As noted in the introduction, this is a point about ‘constitutional statutes’ and how far that imagery can illuminate the relationship between the Acts. The term is famously associated with Laws LJ’s ruling in Thoburn, where he said:

[A] constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights[;] (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).Footnote 27

While Thoburn concerned the effects of ECA 1972 – which, as a constitutional statute, was said to lie beyond the rules of implied repeal – Laws LJ identified a list of other qualifying statutes that included Magna Carta, the Bill of Rights, the Union with Scotland Act 1706, the Human Rights Act 1998 and the devolution legislation for Scotland and Wales.Footnote 28 It is a commonplace that the NI Act 1998 is also a constitutional statute.Footnote 29

Two questions arise from this. The first is whether EUWA 2018 ought to be regarded as a constitutional statute, where it would appear that the answer can only be yes. Not only does EUWA 2018 have elements of both (a) and (b) from Laws LJ’s definition; it has been enacted in the very constitutional space that was previously occupied by ECA 1972. Indeed, the similarities with ECA 1972 can be seen in the fact that section 7 A EUWA 2018 has largely the same effects as section 2 ECA 1972 – a ‘catch-all’ means of incorporation linked to a requirement to read ‘all other enactments’ in the light of the incorporated law.Footnote 30 The similarities can also be seen in the fact that EUWA 2018 has replaced ECA 1972 as an ‘entrenched enactment’ under section 7 of the NI Act 1998. This means that EUWA 2018 ‘shall not be modified by an Act of the Assembly or subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department’.Footnote 31

The second question is what does this all mean in practice? Certainly, much will depend on how the courts regard Laws LJ’s statement about constitutional statutes not being subject to implied repeal, and repeal being possible only through the use of ‘express words’. While the out-workings of this are uncontroversial when a constitutional statute is succeeded by an ‘ordinary’ Act of Parliament, the position is more complex where one constitutional statute (the NI Act 1998) has points of cross-over with another constitutional statute (EUWA 2018). The point can again be developed with reference to section 7 A EUWA 2018, as the rules on implied repeal would mean that, were there to be any conflict between the WA and the NI Act 1998, the WA would automatically prevail. However, the difficulty with that approach is that it inverts the logic of Thoburn, unless it can be said that Laws LJ intended for his statement of principle to apply at only the interface between ‘constitutional’ and ‘ordinary’ statutes. There is nothing in the judgment to suggest that he intended for it to be limited in that way.

These are not simply points of abstract interest, as related questions about constitutional statutes are presently before the courts in Northern Ireland.Footnote 32 While the issue of implied repeal has arisen in those proceedings in the context of a challenge to the Protocol’s effects on the Act of Union between Ireland and Britain, the proceedings also challenge the lawfulness of the regulations that inserted Schedule 6 A into the NI Act 1998. As already discussed, those regulations have written out the ‘petition of concern’ mechanism from the democratic consent process and, in so doing, have modified a key feature of the Northern Ireland constitution. Although there are strong practical reasons for limiting the petition’s effects in this way – its use could potentially frustrate any future consent motion within the Assembly – the more fundamental point is whether it ought to be possible to change a constitutional statute by way of regulations made under another constitutional statute. Prior to Brexit, the case law on devolution may well have suggested that this should not be possible, as the courts had acknowledged the importance of the devolution settlement throughout the UK and its localized, democratic basis.Footnote 33 However, the case law since Brexit has equally seen the courts return to a more absolutist view of the Westminster Parliament’s powers and, in particular, a Diceyan view of legal sovereignty.Footnote 34 It is a retreat that may ultimately answer all questions in favour of the most recent constitutional statutes.

10.5 Conclusion

This chapter began by noting that it had two main objectives: to consider the nature of the legislative framework that has given effect to Brexit and how that intersects with the NI Act 1998; and to consider the nature of the obligations that arise under and outside the Protocol. It has referred throughout to ‘legal hybridity’ and the idea that the Northern Ireland institutions must observe different rules under and outside the Protocol. In terms of the Assembly and the Executive, this means that they are able to modify aspects of ‘retained EU law’ in matters outside the Protocol but that, in matters under the Protocol, they are bound by the first principles of EU law in relation to all provisions of the Protocol. In terms of the courts, EU law no longer applies on its original terms in cases outside the Protocol, but it does apply with its full force in cases under it. At its height, this means that the courts must apply the supremacy principle, observe the CFR, make Article 267 TFEU references in relation to issues arising under Article 5, 7–10 and 12(2) of the Protocol, apply the general principles of EU law, and hear Francovich claims.

Is this legal hybridity inconsistent with the Northern Ireland constitution? Much of the answer to this question will be found in the ongoing proceedings before the Northern Ireland courts, where historical and contemporary dimensions to the constitution are in issue. Should the courts ultimately hold that the Protocol and its means of implementation have breached foundational constitutional principle, the EU and the UK may well be required to revisit the international law basis of their future relationship. In the event that the courts rule that the Protocol is not inconsistent with the Northern Ireland constitution, legal hybridity may become one of its defining features.

11 The Protocol in Irish Law

David Fennelly
11.1 Introduction

Brexit involves a fundamental reshaping of relations between the UK and the EU and its member states, including Ireland. As the Preamble to the Protocol recognizes, this represents ‘a significant and unique challenge to the island of Ireland’. Since the conclusion of the 1998 Agreement, the EU has provided a critically important, if often invisible, underpinning of the peace process in Ireland. In the wake of Brexit, Northern Ireland is a ‘place between’.Footnote 1 On the one hand, it is no longer part of the EU and Protocol Article 4 confirms that it is part of the customs territory of the UK. On the other hand, under the Withdrawal Agreement (WA) and the Protocol, Northern Ireland retains its special relationship with Ireland and remains subject to a substantial body of EU law.Footnote 2 If Brexit involves a shift in the legal framework for EU–UK relations from EU law to international law, that shift is incomplete, particularly for Northern Ireland. And, for Ireland, including in its relations with Northern Ireland, Brexit serves to reinforce the bonds with the EU. This is reflected in the role and status of the Protocol in Irish law, which is examined in this chapter.

The chapter begins by exploring the formal status and effect of the Protocol in the Irish legal system. As part of an international agreement concluded by the EU, the Protocol takes effect in Irish law as EU law. However, its formal status is only part of the story. The Protocol has a wider influence on the legal framework governing relations among Ireland, Northern Ireland and the UK. For this reason, the chapter also considers how the Protocol has, first, contributed to the formalization in Irish law of the Common Travel Area (CTA) between Ireland and the UK and, second, brought the 1998 Agreement for the first time within the purview of EU law. In these ways, the Protocol adds an increasingly important EU dimension to the legal framework governing relations on the island of Ireland and between Ireland and the UK.

11.2 The Status and Effect of the Protocol in Irish Law

The shifting legal framework governing EU–UK relations is evident in the status of the Protocol in the UK and Irish legal systems. While both Ireland and the UK have traditionally adopted a dualist approach to international agreements, Ireland’s continued membership of the EU is critical in determining the effect of the Protocol in Irish law.

In the UK, although the conclusion of the WA was of great political significance, ‘it had no legal effect within the UK legal order’.Footnote 3 In accordance with the dualist approach, revived in respect of EU international agreements following Brexit, domestic legislation was necessary to give effect to the WA and the Protocol in UK law.Footnote 4

By contrast, in Ireland, the dualist approach to international agreementsFootnote 5 remains significantly qualified by the wide constitutional immunity afforded to EU law.Footnote 6 No provision of the Constitution invalidates laws enacted, acts done or measures adopted by the state that are necessitated by the obligations of EU membership or prevents such laws, acts or measures from having the force of law in the state.Footnote 7 This is complemented by the European Communities Act 1972 (as amended) (ECA 1972), which recognizes that acts of the EU institutions are ‘binding on the State’ and form part of domestic law ‘under the conditions laid down in the treaties governing the European Union’.Footnote 8 It is through this mechanism that EU law – including the EU’s international agreements – takes effect within the Irish legal order.Footnote 9

The Protocol forms an ‘integral part’ of the WA, the international agreement concluded between the EU and the UK to ensure an orderly withdrawal process.Footnote 10 In accordance with Article 216(2) of the Treaty on the Functioning of the European Union (TFEU), agreements concluded by the Union ‘are binding upon the institutions of the Union and on its Member States’. The Court of Justice of the European Union (CJEU) has long recognized that, upon their entry into force, international agreements concluded by the Union form ‘an integral part’ of EU law and, for the purposes of Article 267 TFEU, are regarded as an act of the EU institutions.Footnote 11 In this way, upon the entry into force of the WA on 1 February 2020, the Protocol became an integral part of EU law and, by extension, Irish law.

While these principles do not necessarily resolve all questions relating to the internal effect of an international agreement within the EU legal order,Footnote 12 the CJEU has recognized that the parties to an international agreement are free to agree the effects within their internal legal order.Footnote 13 In Article 4 WA, the EU and the UK do just that. Having confirmed that the provisions of the WA and the provisions of EU law made applicable by it shall produce the same legal effects for the UK as for the EU and its member states, Article 4(1) WA goes on to provide that ‘legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’. This approach stands in direct contrast to the position under the Trade and Cooperation Agreement (TCA).Footnote 14

It follows that, where provisions of the Protocol meet the conditions for direct effect under EU law, they too may be relied upon directly by legal or natural persons in the context of any disputes concerning the Protocol. Indeed, this extends further to the decisions adopted by the Joint Committee (JC) established under the WA. Article 166(2) expressly provides that such decisions are binding on the Union and the UK and that both parties shall implement those decisions, which shall have ‘the same legal effect’ as the Agreement itself.Footnote 15 In addition, and of considerable practical importance, Article 4(3) and (4) WA requires that the provisions of the Agreement (and by extension the Protocol) which refer to EU law be interpreted in a manner consistent with EU law.

The significance of the Protocol’s status as an international agreement concluded by the EU is not confined to its binding character or its capacity to be directly effective. In the EU legal order, international agreements occupy an intermediate status between EU primary and secondary law: while they must comply with the Treaties, international agreements prevail in the event of conflict with EU secondary legislation.Footnote 16 Moreover, for member states such as Ireland, the principle of the primacy of EU law means that international agreements concluded by the EU, such as the Protocol, would prevail over any inconsistent domestic law, even of constitutional status.Footnote 17

In short, the Protocol – as an integral part of an international agreement concluded by the EU – is endowed with the full force and effect of EU law within the Irish legal system. This greatly facilitates the application and implementation of the Protocol in Irish law. Given that most of the core obligations under the Protocol are directed at the UK, it remains to be seen to what extent disputes concerning the Protocol will arise before the Irish authorities and the Irish courts.Footnote 18 However, even if the direct implications for Irish law prove limited in practice, the Protocol will nonetheless have a broader influence on the Irish legal system, serving as a vital reference point in relations between Ireland and its nearest neighbour, in the context of both the CTA and the constitutional settlement under the 1998 Agreement.

11.3 The Common Travel Area

While the Protocol may not require any specific implementing measures in Irish law, its presence can be felt in Irish law in the increasing formalization of the CTA between Ireland and the UK.Footnote 19

At its core, the CTA allows Irish and UK nationals to enter and reside in each other’s jurisdictions. Over time, this has been supplemented by arrangements providing for access to work, health care, social welfare, education, as well as other measures such as voting rights in local and parliamentary elections.Footnote 20 Although the CTA is long established, Brexit exposed its relatively fragile legal basis. In legal terms, the CTA has traditionally been based on ‘a combination of informal administrative understandings and latterly more formal “sectoral agreements”’ which are then reflected in domestic law and practice.Footnote 21

When both Ireland and the UK were members of the EU and remained outside the Schengen system, this informal system gave rise to little difficulty. Indeed, Article 2 of Protocol No 20 to the TFEU – under which the UK and Ireland were entitled to control their own borders – allowed the two states to continue ‘to make arrangements between themselves relating to the movement of persons between their territories (“the Common Travel Area”)’ while fully respecting the rights of persons exercising their right of free movement under EU law. However, with the departure of the UK from the EU, the status of the CTA became much more precarious.

From an early stage, there was a political commitment to preserving the CTA. This was confirmed in the Joint Report of the EU and UK negotiators in December 2017.Footnote 22 Later, in the Memorandum of Understanding and Joint Declaration of 8 May 2019, the Irish and UK governments reaffirmed their commitment to the CTA.Footnote 23 That political commitment was ultimately reflected in Protocol Article 3, which provides, first, that the UK and Ireland ‘may continue to make arrangements between themselves relating to the movement of persons between their territories (“the Common Travel Area”), while fully respecting the rights of natural persons conferred by Union law’. Second, Article 3(2) requires the UK to ensure that the CTA and the rights and privileges associated therewith ‘can continue to apply without affecting the obligations of Ireland under Union law, in particular with respect to free movement to, from and within Ireland for Union citizens and their family members, irrespective of their nationality’. Article 3 thus strengthens the formal recognition of the CTA in EU law and permits its continued operation subject to its consistency with EU law and, specifically, the right of free movement.Footnote 24

For its part, the Oireachtas (the Irish Parliament) has enacted a series of measures to place the CTA on a firmer legal footing in Irish law. The Minister for Health has been given the power to adopt measures providing for health care and reimbursement arrangements in accordance with the Memorandum of Understanding on the CTA.Footnote 25 The Minister for Social Protection is empowered to make an order providing for the implementation of the 2019 Convention on Social Security between the Irish and UK governments which ensures the continuity of social protection arrangements under the CTA.Footnote 26 The definition of ‘non-national’ in Irish law is amended so as to ensure that a UK citizen does not come within that definition, thereby retaining the legal basis for the exemption of UK citizens from passport checks within the CTA.Footnote 27 The enactment of this legislation to protect and maintain the CTA was described as ‘a key part of Ireland’s planning and preparations’ for Brexit.Footnote 28

However, the greater formalization of the CTA in Irish and EU law is not without its challenges. With the departure of the UK from the EU, the scope for tension between the CTA and EU law increases. As the terms of Protocol Article 3 make clear, the CTA is permitted to continue subject to the requirement that it does not affect the obligations of Ireland under EU law, particularly in the context of free movement. If measures of Irish law afford non-EU citizens more favourable treatment than EU citizens in areas falling within the scope of the Treaties, they would be vulnerable to challenge.Footnote 29 Recent debates around travel-related restrictions necessitated by Covid-19 show that this concern is not merely academic.Footnote 30 While Protocol Article 3 may assist in justifying measures adopted as part of the CTA, it is far from a blanket defence. In conclusion, while the recognition of the CTA in the Protocol has reinforced its formal status in EU and Irish law, it also means that the continued existence and development of the CTA will be increasingly influenced by its consistency with EU law.

11.4 The 1998 Agreement

Of even greater constitutional significance for Ireland is the Protocol’s express affirmation of the 1998 Agreement. Since it was concluded, the 1998 Agreement has been the overarching framework governing relations across Ireland, the UK and Northern Ireland. The constitutional changes necessitated by the 1998 Agreement have been described as ‘arguably the most momentous’ since the adoption of the 1937 Irish Constitution.Footnote 31 By referendum, the Irish people voted to allow the state to conclude the British–Irish Agreement, the intergovernmental agreement which formed part of the 1998 Agreement, and to amend Articles 2 and 3 of the Irish Constitution. Whereas Article 2 in its original form had defined the national territory as consisting of ‘the whole island of Ireland, its islands and the territorial seas’, the new Article 2 recognized the entitlement and birthright of every person born in the island ‘to be part of the Irish Nation’. For its part, the new Article 3 expressed ‘the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions’, while recognizing that a united Ireland could be brought about only ‘by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island’. Although the 1998 Agreement as such does not directly form part of Irish law,Footnote 32 it occupies a central place in Ireland’s constitutional landscape.

Prior to Brexit, the relationship between the 1998 Agreement and EU law might have been described as largely silent but mutually supportive. For its part, the 1998 Agreement makes very limited reference to the EU. The Preamble to the British–Irish Agreement refers to the close co-operation between Ireland and the UK ‘as friendly neighbours and as partners in the European Union’. Under Strand Two of the Multi-party Agreement, one of the tasks of the North–South Ministerial Council is to ‘consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework’, with arrangements to be made ‘to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings’.Footnote 33 Under Strand Three, EU issues are identified among the suitable issues for early discussion in the British–Irish Council.Footnote 34 Prior to the Protocol, however, the 1998 Agreement did not feature in any significant way within the wider body of EU law.Footnote 35

However, the relative silence in formal terms belies the critical role of the EU in practice, both in the political backdrop to the 1998 Agreement and in its effective implementation.Footnote 36 As discussed in Chapter 1, common EU membership played ‘a positive part in providing an important supporting structure for several elements of the 1998 Agreement itself’, as well as providing extensive funding of projects relating to the peace process and the Irish border.Footnote 37 In many ways, the 1998 Agreement and the forms of co-operation which it set in train were premised on the continuing EU membership of the UK and Ireland.

With Brexit, this largely silent and invisible underpinning of the peace process has been forced to the surface. At its heart, the Protocol is a response to the ‘significant and unique challenge’ that Brexit presents for the island of Ireland and the peace process.Footnote 38 It is in this context that the EU and the UK expressly affirm that the 1998 Agreement ‘should be protected in all its parts’. The Protocol treads a careful path in this regard.

On the one hand, the Protocol recognizes that the constitutional status of Northern Ireland is not a matter of EU law.Footnote 39 Thus, in its first and second paragraphs, Protocol Article 1 provides that the Protocol is without prejudice to the provisions of the 1998 Agreement in respect of the constitutional status of Northern Ireland and the principle of consent and that the Protocol respects the essential state functions and territorial integrity of the UK.Footnote 40

On the other hand, the whole purpose of the Protocol is to set out ‘arrangements necessary to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North–South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions’.Footnote 41 The commitment to the 1998 Agreement is reflected in the operative provisions of the Protocol: from Article 2, which protects the rights and values which underpin the peace process, through Articles 5 to 10, which seek to avoid a hard border on the island of Ireland, to Article 11, which aims to facilitate ongoing North–South co-operation and, of course, Article 18, which enshrines the principle of democratic consent in Northern Ireland within the Protocol. In this way, the Protocol provides a mechanism for ensuring that the continued application of the 1998 Agreement is not unduly impaired by the UK’s departure from the EU. Indeed, while the Protocol formally does not make it part of EU law, through both its affirmation of the 1998 Agreement and its substantive provisions, the Protocol gives the 1998 Agreement a mooring in EU law which may allow it to be relied upon, if only indirectly, in litigation before the national and EU courts.Footnote 42

It follows that, even if the major constitutional questions concerning Northern Ireland do not come within its scope, the wider constitutional significance of the Protocol should not be underestimated. It is within the framework of the Protocol that many important issues affecting Northern Ireland, including in the context of North–South co-operation, will fall to be determined in future. And within this framework – in the context of implementation, governance and dispute settlement – it is the EU institutions, rather than any individual member state such as Ireland, that will act as the primary interlocutor. The early experience with the Protocol – particularly in the context of the safeguards regime under Article 16Footnote 43 – offers a foretaste of some of the difficulties and sensitivities to which this changed framework may give rise.

As McCrudden has described the position, the Protocol has ‘to an extent, “Europeanised” the 1998 Agreement, meaning that upholding that Agreement has become an EU objective in the context of the WA, and no longer simply a UK–Irish objective’.Footnote 44 Just as the duties of good faith and sincere co-operation in Article 5 WA are likely to ‘play a significant role in future disputes between the UK and the EU over the application of the Protocol’,Footnote 45 the duty of sincere co-operation under Article 4(3) TEU – between the Union and Ireland as member state – is likely to take on very considerable importance in this legally and politically sensitive context. Close and continuous co-operation between the Commission and the Irish government will be essential to ensure the effective implementation of the Protocol in a manner which is consistent with the 1998 Agreement and which avoids its underlying objectives being undermined.

11.5 Conclusion

If, for the UK, Brexit has shifted EU–UK relations from the special regime of EU law to the looser bonds of international law, for Ireland, Brexit has served to reinforce and intensify the state’s membership of the EU. In doing so, it has placed Ireland’s relations with the UK within a more direct and increasingly important EU framework. In the context of Northern Ireland, this is exemplified by the Protocol, which seeks to address ‘the unique circumstances on the island of Ireland through a unique solution’. It is also reflected in the status and role of the Protocol in the Irish legal system. It is not simply that the Protocol takes effect in Irish law as EU law, significant though this is. The Protocol has a much wider significance for Ireland in the post-Brexit era, in particular by providing a mechanism through which the long-standing arrangements in the form of the CTA and the constitutional settlement enshrined in the 1998 Agreement can be reconciled with Ireland’s obligations under EU law. Legally, politically and practically, this will give the EU a greater role in the future of the peace process on the island of Ireland.

Footnotes

9 The Status of the Withdrawal Agreement in UK Law

1 See further Chapter 10.

2 Chapter 10 considers the operation of the Protocol in Northern Ireland law, and Chapter 11 considers the legal status of the Protocol in Ireland.

3 As a result of s 5 EUWAA 2020. Exit day (as defined in EUWA 2018, s 20(1)–(5)): see SI 2020/75, reg 4(c).

4 This was achieved legally by the conduit pipe of s 1B EUWA 2018 (‘Saving for EU-derived domestic legislation for implementation period’).

5 Which reads:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly ; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies.

6 S 24(1) EUWA 2018: ‘Subject to subsections (2) and (3), this Act extends to England and Wales, Scotland and Northern Ireland.’ This means that the enforcement provisions in Part Six of the WA also apply to breaches of the WA in Northern Ireland as in the rest of the UK.

7 This is discussed further in Chapter 12.

8 Under Art 267 (Protocol Art 12(4)).

10 Art 260(2) TFEU applies.

11 See further Chapter 5 on the dispute settlement procedures.

13 See further ‘Update: Developments from July 2021 to September 2021’ at the front of this book.

14 EUWAA ss 7–17 and Sch 2.

15 WA Arts 15–16.

16 For full details on the EUSS, see Barnard et al, EU Settled Status, Report for UK in a Changing Europe, https://ukandeu.ac.uk/research-papers/the-eu-settlement-scheme/, on which this section draws.

17 WA Art 18.

18 An initial planned £65.00 fee for application was waived in January 2019 by then prime minister Theresa May.

19 WA Arts 24, 25, 26.

20 WA Art 27.

21 The Fratila Tanase case is at the time of writing before the UK Supreme Court, at www.supremecourt.uk/cases/uksc-2021–0008.html.

22 S 15 and Sch 2 of the 2020 Act.

10 The Protocol in Northern Ireland Law

1 NI Act 1998, s 1(1).

2 NI Act 1998, s 56 A and Sch 6A.

3 For the term ‘constitution’, see Robinson v Secretary of State for Northern Ireland [2002] NI 390.

4 Protocol Art 2; NI Act 1998, ss 6(2)(ca), 24(1)(aa), 69(10A), 71, 74(7) and 78A–E.

5 Protocol Art 11; EUWA 2018, ss 8C(7) and 10.

6 On which see Thoburn v Sunderland CC [2003] QB 151.

7 Respectively, Case 6/64, [1964] ECR 585 and Case 106/77, [1978] ECR 629.

9 Ss 1 and 2–7.

10 S 5.

11 Ss 5(4) and 6(1)(b).

12 Ss 7 and 12 (and NI Act 1998, s 6A).

13 Sch 1.

14 Note that the powers in s 8C correspond with powers for NI departments under s 11 of, and Sch 2 to, the Act. On the nature of s 10 EUWA 2018, see Re McCord/JR83/Waring [2019] NICA 49.

15 See, eg, R v Ministry of Agriculture, Fisheries and Food, ex p First City Trading [1997] 1 CMLR 250; and G Anthony, UK Public Law and European Law: The Dynamics of Legal Integration (Hart 2002) chs 4–6.

16 On sectoral integration, see, eg, Arne Niemann and Philippe C Schmitter, ‘Neofunctionalism’ in Antje Wiener and Thomas Diez (eds), European Integration Theory (2nd edn, Oxford University Press 2009) ch 3.

17 Art 1. On the 1998 Agreement, see Chapter 2.

18 See Chapter 12.

19 See further Chapter 13. On the dynamic nature of the CFR, see AB v Facebook [2013] NIQB 14, para 14, McCloskey J.

20 NI Act 1998, s 52B and Sch 2, para 3.

21 See, to similar effect, s 8C of EUWA 2018 whereby a power for ministers of the Crown to make regulations in relation to the Protocol does not extend to ‘the second sentence of Article 11(1) of the Protocol (which provides that the United Kingdom and the Republic of Ireland may continue to make new arrangements that build on the provisions of the Belfast Agreement in other areas of North–South cooperation on the island of Ireland)’.

23 The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 (SI 2020/1500).

24 Part 3: to apply when the offices of the First Minister and deputy First Minister are filled.

25 Part 4: to apply when the offices of the First Minister and deputy First Minister are vacant.

26 Para 17.

27 Thoburn v Sunderland CC [2003] QB 151, 187, [62]. For subsequent judicial reference to Thoburn, see, eg, R (Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, 382–83, [208], Lords Mance and Neuberger; and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491, 544, [120], Lord Carnwath.

29 Robinson (Footnote n 3), describing the NI Act 1998 as a ‘constitution for Northern Ireland’.

30 On s 2 of ECA 1972, see R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603.

31 NI Act 1998, s 7(1)(e), as inserted by para 51(2) of Sch 3 to EUWA 2018.

32 In the matter of an Application by Allister, et al [2021] NIQB 64 (challenge by several Unionist politicians to the constitutionality of the Protocol rejected by High Court). This case is considered further in ‘Update: Developments from July 2021 to September 2021’ at the front of this book. Whether the High Court decision will be appealed was uncertain at the time of writing (July 2021). For other case law on the interface between constitutional statutes, see R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 950 (Admin) (application for judicial review of the question as to whether the United Kingdom Internal Market Act 2020 impliedly limiting the legislative competence of the Senedd was premature).

33 R (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262, 302, [102], Lord Steyn; Axa General Insurance v HM Advocate [2011] UKSC 46, [2012] 1 AC 868; Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, [2015] AC 1016, 1059–60, [118–22], Lord Thomas.

34 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61; and UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64, [2019] AC 1022.

11 The Protocol in Irish Law

1 D Phinnemore, ‘Northern Ireland – A “Place Between” in UK–EU Relations?’ (2020) 25(4) European Foreign Affairs Review 631–49.

2 Arts 5–10 Protocol. See S Weatherill, ‘The Protocol on Ireland/Northern Ireland: Protecting the EU’s Internal Market at the Expense of the UK’s’ (2020) 45 European Law Review 222–36.

3 P Craig, The Ratifications of the Withdrawal Agreement: UK and EU Perspectives (DCU Brexit Institute, Working Paper No 05/2020) 2.

4 See, in particular, the European Union (Withdrawal Agreement) Act 2020 and, in this volume, Chapters 3 and 9.

5 Art 29.6 of the Constitution of Ireland (‘the Irish Constitution’).

6 See D Fennelly, International Law in the Irish Legal System (Round Hall 2014), chs 2 and 3.

7 Irish Constitution, Art 29.4.6.

8 ECA 1972, s 2.

9 Maher v Minister for Agriculture [2001] 2 IR 139, 251.

10 Art 182 WA. As a matter of EU law, on 30 January 2020, the Council of the European Union approved the WA, thereby allowing it to enter into force on 1 February 2020: Art 1, Council Decision (EU) 2020/135.

11 Judgment of 30 April 1974, Haegeman, Case 181/73, EU:C:1974:41, para 5.

12 See K Lenaerts, ‘Direct Applicability and Direct Effect of International Law in the EU Legal Order’ in I Govaere et al (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Brill 2013) 45.

13 Judgment of 26 October 1982, Kupferberg, 104/81, EU:C:1982:362, para 17.

14 Arts 4 and 5 TCA.

15 This is in line with the approach adopted by the CJEU to the decisions adopted by bodies established under Association Agreements: see, eg, Sevince, C-192/89, EU:C:1990:322; Savas, C-37/98, EU:C:2000:224; Soysal and Savatli, C-228/06, EU:C:2009:101.

16 Judgment of 10 January 2006, IATA, C-344/04, EU:C:2006:10, para 35.

17 Judgment of 9 March 1978, Simmenthal, Case 106/77, EU:C:1978:49; judgment of 4 December 2018, Minister for Justice and Equality, C-378/17, EU:C:1978:49.

18 While no disputes concerning the Protocol have yet to come before the Irish courts, there have been a number of cases raising important issues in relation to the surrender arrangements between Ireland and the UK under the WA and the TCA: see, in particular, Minister for Justice and Equality v Shahzad [2021] IEHC 89; Saqlain v The Governor of Cloverhill Prison & Ors [2021] IEHC 208, which have since been the subject of appeals to the Supreme Court, which decided on 20 July 2021 to make a reference under Article 267 TFEU to the CJEU, Hasnain Saqlain v The Governor of Cloverhill Prison & Salman Shahzad v The Governor of Mountjoy Prison [2021] IESC 45 (unapproved judgment of Mr. Justice Clarke, Chief Justice, delivered 20 July 2021) (Irish Supreme Court). See further Chapter 23.

19 See further Chapter 14.

20 For an excellent overview of the CTA, see S de Mars, C Murra y, A O’Donoghue and B Warwick, Discussion Paper on the Common Travel Area (IHREC/NIHRC Joint Committee 2018).

21 Footnote Ibid, 14. See also I Maher, The Common Travel Area: More Than Just Travel (RIA/British Academy Brexit Policy Discussion Paper, 2017) and Chapter 14 in this volume.

22 Joint Report from the Negotiators of the European Union and the UK Government on Progress during Phase 1 of Negotiations under Article 50 TEU on the UK’s Orderly Withdrawal from the European Union, 8 December 2017, para 54.

23 See the website of the Department of Foreign Affairs, www.dfa.ie/brexit/getting-ireland-brexit-ready/brexit-and-you/common-travel-area/.

24 Note in this regard Art 38(2) WA.

25 Part 2 of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020.

26 Part 14 of the Act.

27 Part 17 of the Act.

28 Department of Foreign Affairs, Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2020Explanatory Memorandum, October 2020.

29 See, eg, E Spaventa, The Impact of Brexit in Relation to the Right to Petition and on the Competences, Responsibilities and Activities of the Committee on Petitions, Study for the PETI Committee of the European Parliament, June 2017, 3940.

30 See, eg, N O’Leary and S Pollak, ‘European Commission Contacts Ireland on “Concerns” over Hotel Quarantine’ Irish Times (15 April 2021).

31 G Hogan, G Whyte, D Kenny and R Walsh (eds), JM Kelly: The Irish Constitution (5th edn, Butterworths 2018) para 3.1.01.

32 Although implementing legislation was also enacted, neither the constitutional amendment nor this legislation gave the British–Irish Agreement, or the 1998 Agreement more broadly, the force of law in Ireland. In a series of cases, the Irish courts have rejected arguments that the 1998 Agreement, as such, forms part of Irish law: Doherty v Governor of Portlaoise Prison [2002] 2 IR 252; O’Neill v The Governor of Castlerea Prison [2004] 1 IR 298; Morelli v An Taoiseach [2018] IEHC 215.

33 Multi-party Agreement, Strand Two, para 17; see also para 3(iii).

34 Strand Three, para 5.

35 One notable exception is Art 15 of the Framework Employment Directive, Directive 2000/78, which makes special provision in respect of the police force and the employment of teachers in Northern Ireland.

36 See, eg, D Litter, ‘Understanding the Role of European Council Summits in Reaching the Good Friday Agreement’ LSE European Politics and Policy (EUROPP) blog (26 March 2021) https://blogs.lse.ac.uk/europpblog/2021/03/26/understanding-the-role-of-european-council-summits-in-reaching-the-good-friday-agreement/.

37 Chapter 1 in this volume.

38 Protocol, Preamble, para 2.

39 Note, however, that, on 29 April 2017, the European Council agreed that, in the event of a decision being taken on a united Ireland in accordance with the GFA, the entire territory of such a united Ireland would, in accordance with international law, be part of the EU: see D Staunton and P Leahy, ‘Brexit Summit: EU Accepts United Ireland Declaration’ Irish Times (29 April 2017).

40 This echoes the language of Art 4(2) TEU.

41 Protocol Art 1(3). See also Art 4 of Council Decision (EU) 2020/135.

42 For a comprehensive discussion of the issues potentially arising in this regard, see A Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’ (2011) 35(4) Fordham JIL 1304–45.

43 See Chapter 25 in this volume.

44 See Chapter 8.

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×