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On 20 January 2023, the House of Lords is due to debate a report by the Protocol on Ireland/Northern Ireland Sub-Committee on ‘Scrutiny of EU legislative proposals within the scope of the Protocol on Ireland/Northern Ireland’. The committee is a sub-committee of the House of Lords European Affairs Committee. The report was published in March 2022.
1. Background
1.1 EU legislation and the Northern Ireland Protocol
Under the Northern Ireland Protocol, Northern Ireland is subject to the EU’s customs code, VAT rules and single market rules for goods. EU rules on state aid apply to the UK in respect of measures which affect trade between Northern Ireland and the EU covered by the protocol. Article 2 of the protocol also requires the UK to ensure there is no diminution of the rights, safeguards, and equality of opportunity set out in the Belfast/Good Friday Agreement, as a result of Brexit. This includes protections against discrimination enshrined in certain provisions of EU law listed in annex 1 to the protocol.
The protocol also means that future changes in EU legislation may apply to Northern Ireland. EU law measures that continue to apply to Northern Ireland are listed in annexes to the protocol. This covers over 300 pieces of EU legislation. If the EU amends or replaces any of these measures, the changes apply to Northern Ireland automatically. This is known as ‘dynamic alignment’. The process is different if the EU adopts a new law in an area that falls within the scope of the protocol but does not amend or replace an EU act already listed in an annex to the protocol. In that case, the Joint Committee, a joint UK-EU body that oversees the withdrawal agreement and the protocol, may discuss whether the new EU act should apply to Northern Ireland. It can decide to add the newly adopted EU act to the relevant annex to the protocol. If agreement cannot be reached, the Joint Committee can examine “all further possibilities to maintain the good functioning” of the protocol and take any necessary decision. The EU can take “appropriate remedial measures” if the Joint Committee cannot reach a decision within a reasonable time.
The EU must inform the UK about planned changes to EU legislation within the scope of the protocol through a body called the Joint Consultative Working Group (JCWG). This applies to both amendments to or replacements of EU legislation listed in the annexes that will apply to Northern Ireland dynamically and to new legislation that the EU wants added to the annexes.
1.2 Parliamentary scrutiny of EU legislation within scope of the protocol
The House of Lords Protocol on Ireland/Northern Ireland Sub-Committee was appointed in April 2021. Part of its remit is to carry out document-based scrutiny of new or amended EU legislation within the scope of the protocol. A similar scrutiny role is carried out in the House of Commons by the European Scrutiny Committee.
The government set out proposed arrangements for post-Brexit parliamentary scrutiny of EU-related business in September 2021 in a letter from Lord Frost, who was then the minister with responsibility for Brexit. For EU legislative proposals relating to the Northern Ireland Protocol, the government committed to:
- Continuing to provide explanatory memoranda (EMs) on EU proposals which amend or replace existing proposals that fall under the scope of the protocol (including tertiary legislation) and new EU proposals falling under the scope of the protocol when agreed by the Joint Committee.
- Consulting with committee clerks on whether an EM should be provided when the UK is informed of any draft legislation through the JCWG which the EU has indicated it would like to add to the protocol annexes under the article 13(4) processes. The government said any agreement to share an EM would be on the understanding that it could not share anything that might reveal its negotiating position ahead of the relevant Joint Committee meeting.
- Officials working with committee clerks to tailor the guidance and template for producing explanatory memoranda to better reflect the information the committee would find helpful.
Discussions between the government and the parliamentary committees about the proposed arrangements (on EU-related business more broadly, not just in relation to the protocol) continued throughout 2021 and 2022.
2. Committee report on its first year of scrutiny
At the end of its first year of operation, in March 2022 the Protocol on Ireland/Northern Ireland Sub-Committee published a report on the ‘Scrutiny of EU legislative proposals within the scope of the protocol’. It emphasised that “in view of the socio-economic and political implications of the protocol for Northern Ireland, in particular in the context of its relationship with the rest of the UK, EU legislation applying to Northern Ireland must be subject to detailed parliamentary scrutiny”.
The committee welcomed the government’s commitment to facilitate this scrutiny “as far as it goes”. It said the government had submitted EMs for EU proposals to amend or replace EU legislation listed in the annexes to the protocol. It welcomed the way the government had consulted committee officials on whether EMs were required for pieces of EU tertiary legislation making technical changes. These had acquired “added significance in the context of the protocol” with the potential to create divergence between Northern Ireland and Great Britain.
However, the committee assessed that “uncertainty remains over specific aspects” of the government’s commitments on scrutiny. It made recommendations for the government to go further or to clarify its commitments in several areas:
- Proposed new EU legislation within scope of the protocol but which does not amend or replace an existing piece of EU legislation listed in one of the annexes: The committee recommended the government should automatically deposit in Parliament any new EU legislation within the scope of the protocol at the point the EU informed the UK about it. It also recommended the accompanying EM should provide as much information as possible, without prejudice to the government’s negotiating position, on the addition of such legislation to the annexes to the protocol. The committee also asked the government to set out details of each such piece of EU legislation the EU had notified the UK about since the protocol came into force, and whether the government had deposited a copy in Parliament and produced an EM.
- Article 2 of the protocol and rights of individuals: The committee sought assurances that the government would deposit in Parliament any draft EU proposals that would amend or replace the EU legislation listed in the relevant annex to the protocol, as well as other legislation relevant to the provisions of article 2 concerning the protection of certain human rights and equality protections, and that the government provide an accompanying EM. It also asked the government to set out how it would ensure the Equality Commission for Northern Ireland (ECNI) and the Northern Ireland Human Rights Commission (NIHRC) were kept informed of developments in EU law relevant to article 2.
- Other EU legislation relevant to Northern Ireland under the protocol: The committee said some EU legislative proposals that might have implications because of the protocol either did not fall into the categories of documents the government had committed to deposit, or it was unclear whether they did. The committee urged the government promptly to deposit and produce an EM for any EU legislative proposals with significant implications for Northern Ireland.
- Provision of information received in the JCWG: The committee also urged the government to establish formal mechanisms for prompt communication to Parliament and other stakeholders of information received from the EU in the JCWG on planned or adopted legislation falling within the scope of the protocol.
The committee also highlighted the “inconsistent and at times poor quality” of EMs and ministerial correspondence it had received on EU legislative proposals applying to Northern Ireland under the protocol. It set out a list of points that EMs and correspondence should cover at a minimum and urged the government to ensure it met these criteria.
The committee reiterated a conclusion from its introductory report published in July 2021 that the protocol created a “democratic deficit” because the EU law set out in the annexes to the protocol “applies to Northern Ireland on a dynamic basis, subject neither to UK participation in the EU institutions, nor to consent from parliamentarians either at Westminster or Stormont”. The committee welcomed the proposals put forward by the European Commission in October 2021 in a ‘non-paper’ (informal negotiating document) on engagement with Northern Ireland stakeholders and authorities.
However, it argued the EU needed to do more to “enhance transparency around the application of EU law to Northern Ireland [and] take account of the impact of EU law on Northern Ireland’s particular circumstances”. The committee endorsed a proposal by the House of Commons Northern Ireland Affairs Committee that each proposed EU legal act should include a recital stating whether it engaged the UK’s obligations under the protocol, and that accompanying explanatory material should set out the basis on which the European Commission considered that it should apply in Northern Ireland.
The committee concluded that all sides had “a continuing obligation to ensure that the operation of the protocol, and the dynamic application to Northern Ireland of EU law listed in the protocol’s annexes, takes into account the delicate balance between North-South and East-West relations as provided for under the Belfast/Good Friday Agreement, and to demonstrate how it is compliant with that agreement in all its strands”.
3. Government response
The government responded to the committee report in May 2022. In answer to the committee’s requests for the government to go further or to clarify the scrutiny commitments contained in Lord Frost’s September 2021 letter, the government responded as follows:
- Proposed new EU legislation within scope of the protocol but which does not amend or replace an existing piece of EU legislation listed in one of the annexes: The government repeated the commitment contained in Lord Frost’s letter to consult with committee clerks about whether an EM should be provided when the UK was informed of such proposed EU legislation through the JCWG. It said these arrangements were “appropriate and proportional”. The government said that since the protocol came into force, the EU had not formally notified the UK within the Joint Committee of any ‘new’ EU legislation within the scope of the protocol. However, the EU had indicated that it intended to formally notify the UK about one piece of proposed EU legislation, the carbon border adjustment mechanism.
- Article 2 of the protocol and rights of individuals: The government said the commitment in Lord Frost’s letter included continuing to submit EMs on draft EU proposals which amend or replace the directives listed in the annexe of the protocol that relate to the rights of individuals. The government also said the committee had the right of initiative to engage the government on any EU legislation the committee saw as being relevant to the provisions of article 2. The government said any requests for information would be considered in full by the relevant department. The government said it continued to work closely with the ECNI and the NIHRC.
- Other EU legislation relevant to Northern Ireland under the protocol: The government said it was continuing to work with the relevant select committees to finalise the scrutiny arrangements for EU legislative proposals. It acknowledged the committee had an interest in considering EU legislative proposals that did not fall within the definition of the documents the government had committed to depositing. It pointed out the committee had the right of initiative to engage the government with questions on any proposal it saw as having significant implications for Northern Ireland in the context of the protocol. The relevant government department would consider in full such requests for information. However, the government said that the EU was not obliged to share information with the UK about EU acts outside the scope of the protocol.
- Provision of information received in the JCWG: The government noted that under JCWG rules of procedure, the group’s meetings were confidential. It said it was continuing to reflect on this as part of its ongoing discussions with the EU. The government also noted that Lord Frost’s letter included an undertaking to consult committee clerks when the EU proposes new legislation be added to the protocol annexes. The government said it would consider sharing information on particular legislative proposals with the committee, possibly on a confidential basis, while formal scrutiny arrangements were being finalised.
In response to the committee’s concerns about the quality of EMs, the government said it could work with committee clerks and members to review and enhance the format of EMs once final scrutiny arrangements had been agreed.
The government said it agreed with the committee’s assessment that the protocol had created a democratic deficit that needed to be addressed. It argued there needed to be “much more ambition from the EU to engage on the changes necessary to give Northern Ireland institutions and stakeholders a meaningful role in shaping the rules applicable in Northern Ireland”. The government highlighted that Liz Truss, the then foreign secretary, had earlier that month announced plans for legislation “aimed at fixing the issues facing communities in Northern Ireland, restoring political stability and preserving peace”.
4. What has happened since the government’s response?
4.1 Northern Ireland Protocol Bill
The government introduced the Northern Ireland Protocol Bill in the House of Commons in June 2022. The bill would make some provisions of the Northern Ireland Protocol ‘excluded provision’, meaning they would no longer apply in domestic law. This would mean that much of the EU legislation listed in the annexes to the protocol would no longer automatically apply to Northern Ireland or to goods that remained in the EU. The bill would establish a ‘dual regulatory regime’ so that goods could be placed on the market in Northern Ireland if they complied with either UK law, EU law or both. The bill would give ministers delegated powers to make new law in connection with the protocol, such as on the movement and regulation of goods, replacing the EU law that applies under the protocol.
The government acknowledges that this would involve the non-performance of some of the UK’s international obligations under the protocol. It maintains this is justified in international law by the doctrine of necessity. However, many legal commentators are not convinced the government has demonstrated a situation of necessity exists that would justify non-performance of the UK’s international obligations. More information is available in the House of Lords Library briefing on the bill.
The bill is currently awaiting report stage in the House of Lords. Discussions between the UK and the EU over the protocol and its implementation remain ongoing.
The Protocol on Ireland/Northern Ireland Sub-Committee wrote to James Cleverly, the foreign secretary, about the bill in November 2022. Among other things, the committee asked about the timescales for introducing a dual regulatory regime and how changes to EU law would be treated in the interim.
4.2 Correspondence about legislative changes leading to regulatory divergence
The committee has also corresponded with the foreign secretary about recording divergence between Northern Ireland and the rest of the UK arising from changes in EU legislation that applies to Northern Ireland under the protocol. Following the government’s response to the committee’s report, the committee wrote to Mr Cleverly in June 2022 to ask if the government was keeping an audit or log of all EU legislation, as amended or replaced, applying to Northern Ireland which would give rise to issues of regulatory divergence between Great Britain and the EU. The committee asked the government to share such a log, if it existed, and/or to make it publicly available.
The committee raised this with the government again in a second letter in December 2022. It said the government’s response to the first letter in August 2022 had not answered the committee’s specific question about a log. The government had argued that each EM it produced about EU legislation applying to Northern Ireland sets out any potential implication on regulatory divergence between Great Britain and the EU in areas where the protocol applies. The committee reiterated it was important for the government to keep a “comprehensive audit or log both of EU and domestic legislation that leads, or could potentially lead, to regulatory divergence between Northern Ireland and Great Britain”. In the committee’s view, “as both the EU and the UK bring forward further legislation, the practical consequences in terms of regulatory divergence will become ever more complex”. It was therefore “essential that the government keeps a single published log of all cases of regulatory divergence arising from UK and EU legislation since the protocol came into force”.
4.3 Revised scrutiny procedures agreed
The House of Lords European Affairs Committee and the House of Commons European Scrutiny Committee have continued to discuss the scrutiny arrangements for EU-related business with the government since Lord Frost’s letter of September 2021. In October 2022, both committees accepted a revised offer from the government. The House of Lords European Affairs Committee and the House of Commons European Scrutiny Committee each published a report setting out the revised arrangements.
The House of Lords European Affairs Committee explained in its report that the revised arrangements pertained to EU legislative proposals outside the scope of the protocol. For EU legislative proposals applying to Northern Ireland under the protocol, the committee said it reiterated the recommendations of the Northern Ireland/Ireland Protocol Sub-Committee.
The government’s revised offer was set out in full in the report, including a section on scrutiny of the Northern Ireland Protocol. This replicated the scrutiny arrangements originally set out in Lord Frost’s letter, with one key difference. In the revised offer, the government committed to the automatic submission of an EM when the UK is informed through the JCWG of any draft EU legislation the EU wants to add to the annexes to the protocol. Lord Frost’s letter had previously committed to consultation between the government and committee clerks about whether an EM should be provided in such circumstances. The sharing of an EM would remain subject to the understanding that the government would not share anything that might reveal its negotiating position ahead of the relevant Joint Committee meeting.
Cover image by Scott Graham on Unsplash.