Northern Ireland: a constitutional exception and why it matters

By: Lisa Claire Whitten

Introduction

In the process of the United Kingdom’s withdrawal from the European Union – Brexit – Northern Ireland has played a starring role. Although largely overlooked in the early stages of the process, the ‘unique circumstances’ and ‘particular challenges’ facing Northern Ireland in the context of Brexit proved the most difficult and divisive problem to solve in UK-EU negotiations.

The ‘solution’ (eventually) devised for post-Brexit Northern Ireland – the Protocol on Ireland and Northern Ireland – is a source of ongoing controversy in UK-EU relations and of instability in Northern Ireland.

A recent UK decision to unilaterally extend ‘grace periods’ that delay the full panoply of checks required under the Protocol on goods moving across the Irish Sea, is just the latest episode in the long-running, high-stakes, political drama of Brexit’s Northern Ireland problem. The EU’s response to the UK unilateral extension was notably muted – rather than retaliating, the EU ‘took note’ of the move while reserving the right to launch consequential legal proceedings in future.

This grace-period extension came just weeks after the UK government published a command paper – Northern Ireland Protocol: the way forward – in which it set out a series of ‘significant changes’ for consideration in proposed new UK-EU negotiations on the Protocol. Responding, the EU committed to engage with the UK on practical fixes to the operation of the Protocol but said it would not reopen negotiations; the debate continues.

In Northern Ireland, implementation of the Protocol has, so far, generated a worrying degree of political destabilization. Many in the Unionist/Loyalist community view the Protocol as an affront to their sense of Britishness and a threat to Northern Ireland’s place in the UK because of the trade and regulatory barriers it introduces for goods moving from Great Britain to Northern Ireland and vice versa. Unionist/Loyalist anger over the Protocol was one of the causes of violent rioting in Northern Ireland in April 2021. While subsequent protests have been peaceful and relatively small, they are indicative of the lingering ire within the Unionist/Loyalist community over the differentiation of post-Brexit Northern Ireland under the Protocol.

Newly appointed leader of the Democratic Unionist Party (DUP), Sir Jeffery Donaldson MP, recently warned of “significant consequences” if the “political, economic and constitutional difficulties created by the Protocol” go unaddressed. Those consequences include the possible collapse of devolved institutions in Northern Ireland if Donaldson’s DUP were to decide to withdraw from power-sharing government in protest. The election campaign that would follow would, very likely, further undermine political stability in an already deeply polarised post-Brexit Northern Ireland.

Given the extent of ongoing political contestation over the Protocol in the first six months of its implementation, the constitutional significance of its provisions for both the UK and the EU are arguably at risk of being overlooked or under-analysed in related debates.

Taking this as a starting point, what follows is a (very brief) attempt to mitigate that risk.

An innovative solution

The provisions of the Protocol on Ireland and Northern Ireland contained in the UK-EU Withdrawal Agreement are without precedent.

Under its terms, Northern Ireland is de jure inside the UK customs territory (Article 4) but de facto under the EU customs code (Article 5). Northern Ireland remains in dynamic regulatory alignment with the EU Single Market in respect to goods (Article 5 and 13) while also, theoretically, retaining ‘unfettered access’ (Article 6) to the UK internal market. Irish citizens living in Northern Ireland are guaranteed ‘no diminution’ of their rights as EU citizens (Article 2) despite being outside the EU territory and Northern Ireland is still a recipient of dedicated EU PEACE and INTERREG funding (Preamble). In addition, EU laws governing wholesale electricity markets (Article 9) and state aid (Article 10) continue to apply in Northern Ireland, and the Protocol in its entirety is to be implemented in such a way as to ‘maintain the necessary conditions’ for North-South cooperation between the two jurisdictions on the island of Ireland (Article 11) that, previously, relied on shared EU law frameworks.

The arrangements for implementation and oversight are significant. Although now a Third Country in EU-law terms, the UK is responsible for ensuring that those aspects of the EU’s acquis made applicable to and in Northern Ireland under the Protocol are enforced, with the Court of Justice of the European Union (CJEU) retaining jurisdiction for these purposes (Article 12). The UK-EU Joint Committee, established under Article 164 of the UK-EU Withdrawal Agreement, is responsible for overseeing the implementation of the Protocol and has power to make binding decisions by mutual agreement in certain areas; the work of the Joint Committee in this respect is supported by a Specialised Committee on Ireland and Northern Ireland (Article 14) and a Joint Consultative Working Group (Article 15), both set up under the Protocol.

A final provision is worthy of specific mention: Article 18 of the Protocol provides for a ‘democratic consent process’ whereby members of the Northern Ireland Assembly are to be granted an opportunity to consent to the continued application of aspects of the Protocol relating to trade (Articles 5 to 10). The first vote of this kind will take place in 2024. If a majority in the Assembly vote in favour of continuation, another consent vote is to be held at four-year (with simple majority) or eight-year (with cross-community majority) intervals thereafter. If a majority in the Assembly vote against continued application of Articles 5 to 10 of the Protocol, the UK-EU Joint Committee are tasked with making recommendations on consequential ‘necessary measures’ (Article 18) and those Articles will cease to apply after a period of two years.

Overall, then, the provisions of the Protocol forge new paths in the constitutional typographies of its two architects. For the EU, these novel arrangements breach the ‘indivisibility’ of the Four Freedoms and create a new (risky) frontier in the EU Single Market and EU external relations. For the UK, implementing the Protocol introduces a new category of law, challenges constitutional precedent, and pushes the boundaries of domestic territorial differentiation to new extremes.

An exhaustive analysis of the Protocol’s legal implications is beyond the scope of this article. That said, some key points can be made.

A European Union risk

From an EU perspective, the selectivity of the Protocol is important. By prohibiting barriers to trade in goods between Northern Ireland and the EU (see Article 5(5) and Article 7(1)) the Protocol avoids the need for new checks or controls on the land border on the island of Ireland, thereby achieving a shared aim of both negotiating parties. However, to do so, the Protocol splits the Four Freedoms of the EU’s Single Market – free movement of EU goods will continue, but services, people and capital have ended.

Such a splitting is notable in principle but how it operates in practice is perhaps more important.

Operationalising a body of EU law – regulations relating to trade in goods – that have been designed to work in tandem with the wider legal schema of the EU Single Market would be a challenging prospect even in fair political weather. Combine this with the novel arrangements for implementation whereby, applicable law is to be enforced by third country UK officials, in a post-conflict society that relies on mandatory power-sharing government, and the task begins to look perilous indeed.

Two further ‘EU risks’ are worth noting. First, it is problematic, from an EU perspective, that much of the substantive discussion about the practical implications of the continued applicability of the EU customs code and regulatory regime in Northern Ireland, have been overshadowed by, or postponed because of, ongoing disagreements with the UK. Second, the ‘democratic consent mechanism’ in the Protocol makes it possible, even probable, that the political volatility we are currently witnessing will recur every 4 or 8 years – this poses a reputational risk to the EU.

While effective implementation of the Protocol is possible, a cursory look at its substantive provisions and the arrangements for oversight make it vividly clear that its UK and EU creators presumed a level of trust between themselves that does not, at present, exist. So long as that trust is absent, the Protocol is likely to be interpreted as a threat to the EU Single Market by its Member States; this is not good news for Northern Ireland.

A United Kingdom exception

The Protocol effectively introduces a new category of law into the UK’s dualist legal system. Under the EU (Withdrawal) Act 2018 (s7A) ‘all such rights, powers, liabilities, obligations and restrictions’ created by or arising under the Withdrawal Agreement are given legal effect in the UK without further enactment. The language of section 7A mirrors that of section 2 of the (repealed) European Communities Act 1972 that previously gave EU law ‘direct effect’ in the UK when it was a Member State.

Because EU laws that apply under the Protocol are to be read ‘as amended or replaced’ (Article 13(3)), the ‘direct effect’ clause in the EU (Withdrawal) Act 2018 acts as a ‘conduit pipe’ (as per Miller v Secretary of State for Exiting the EU 2017 [65]) through which new and revised EU laws within the scope of the Protocol are to be added to the UK statute book. Although not always acknowledged by the UK government, the domestic implementation of the Protocol therefore creates a legal link between the UK in respect of Northern Ireland and the continued evolution of the EU’s acquis. Over time, as the EU Single Market develops and the UK Internal Market (presumably) charts a different course, Northern Ireland is likely to find itself in the difficult position of being pulled in opposite directions by the two ‘Unions’ it straddles. 

The final point in this non-exhaustive review concerns ‘democratic consent’.

Any conventional understanding of the division of competencies between central and devolved government in the UK sits uncomfortably with the Protocol’s ‘democratic consent mechanism’. Throughout the Brexit process, the UK government(s) have been at pains to stress that international relations in general, and relations with the EU in particular, are not a devolved matter. Indeed, the process has reflected this fact as, for example, all three devolved legislatures refused consent to the EU (Withdrawal Agreement) Act 2020, but Prime Minister Boris Johnson ‘got Brexit done’ regardless.

Under the democratic consent mechanism the devolved Northern Ireland Assembly will, however, be given the opportunity to express a view on an ‘excepted’ matter and the UK government will take action as a result – granted, in concert with the EU and ‘taking into account’ the obligations of both parties to the 1998 Belfast ‘Good Friday’ Agreement (Article 18(4)). What this means is that the democratic consent mechanism is, in effect, a reversal of the Legislative Consent Mechanism by which the central UK government ‘take into account’ (but do not always abide) the views of UK devolved administrations.

While parting company with UK constitutional precedent, the democratic consent mechanism also creates an inherent and recurring uncertainty in the political and economic context of post-Brexit Northern Ireland. For a region with a conflicted past and fragile present, this situation is less than ideal.

Conclusion

Northern Ireland’s unique post-Brexit arrangement under the Protocol chimes with a history of constitutional experimentation on the island of Ireland. However, its high-profile political status and basis in international law are such that its implementation will continue to have political, legal, and constitutional repercussions that extend far beyond the now (in)famous borders of Northern Ireland.

For this reason, post-Brexit Northern Ireland and all aspects of its Protocol are worthy of dedicated political scrutiny and sustained academic study. Meaning, in short, Northern Ireland’s starring role is not over.

Dr Lisa Claire Whitten is a Research Fellow on the ESRC-funded project ‘Governance for ‘a place between’: the Multi-Level Dynamics of Implementing the Protocol on Ireland / Northern Ireland’ based at Queen’s University Belfast. Having recently completed doctoral research on Brexit and the Northern Ireland Constitution, Lisa Claire is currently working on a forthcoming paper for the Constitution Society on the subject.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.