Withdrawal Agreement Bill: The Protocol on Ireland/Northern Ireland

Published Wednesday, October 23, 2019

What does the Withdrawal Agreement Bill say about what will happen to Northern Ireland post-Brexit? How will it translate into UK law the Protocol on Ireland/Northern Ireland in the Withdrawal Agreement that replaced the ‘backstop’?

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Northern Ireland has been at the epicentre of the debates about Brexit. Particular attention has been focused upon its relationship with the EU post-Brexit and how this will affect its border with Ireland.

The status of Northern Ireland was the most contested part of the renegotiations between the UK and the EU on the new Withdrawal Agreement.

This Briefing Paper looks at that Agreement. It will also examine the European Union (Withdrawal Agreement) Bill – the piece of legislation (law) that the Government has just published which attempts to enshrine that Agreement into domestic law.. This paper will answer the following questions:

  • What powers have the Government given itself?
  • What limits are there on the use of those powers?
  • How can Parliament scrutinise them coming into force? And
  • What doesn’t the Bill do or set out?

The Protocol on Ireland/Northern Ireland (the Protocol) is part of the Withdrawal Agreement (WA). It lays out the relationship Northern Ireland will have with both the European Union and Great Britain (the rest of the UK) at the end of transition period.

Clauses 21 to 24 of the Withdrawal Agreement Bill, along with Schedule 3, are the parts of the WAB that deal with the Protocol.

Clause 21

Clause 21 of the WAB, amends the European Union (Withdrawal) Act 2018, and creates a significant set of powers that will enable the Protocol.

These clauses will empower Ministers to make regulations with the power of primary legislation, including the power to amend the Act itself. This is often referred to as an ‘Henry VIII Clause’.

A Minister, therefore, can make rules relating to the Protocol which have the same force and effect as an Act of Parliament. Although those regulations would still have to be approved in draft by both Houses before they can be made (under the “affirmative procedure”) MPs and Peers would be unable directly to amend those proposals. The time available for scrutiny would also typically be less than is the case for Bills before Parliament.

The use of these regulations will be restricted by Section 10 of the European Union (Withdrawal) Act 2018.

Clause 22

Clause 22 gives devolved authorities or devolved authorities acting jointly with a Minister (where relevant), a similar power as the UK Government to make laws by regulation (Henry VIII powers), in order to enact the Protocol. These must be used for the same purposes as set out Clause 21(1).

Clause 23 & Schedule 3

Clause 23 and schedule 3 give effect to Article 2(1) of the Protocol which provides that there shall be “no diminution of rights, safeguards or equality of opportunity” as set out in the relevant section of the Belfast/Good Friday Agreement, as a result of Brexit.

It ensures that six EU directives relating to equality and discrimination that are listed in the Protocol will continue to apply in Northern Ireland in perpetuity. Schedule 3 does this by restricting the legislative competence of the Northern Ireland Assembly, and giving the Human Rights bodies in Northern Ireland increased powers to monitor and protect the application of those equality directives.

Clause 24

Clause 24 prevents the Government from agreeing to any recommendation in the Joint Committee that would alter arrangements for North-South cooperation as provided for in the Belfast/Good Friday agreement, or establish a new North-South implementation body or change an existing body.

What is not in the Bill?

The WAB does not itself legislate for the ‘consent mechanism’ for the Northern Ireland Assembly in relation to aligning with certain EU rules post-Brexit (as set out in the Protocol). However, the Government could use its delegated powers, under clause 21, giving effect to the consent mechanism through regulations instead of by an Act of Parliament.

Neither does the WAB set out the details of how VAT and Customs will work in Northern Ireland, these decisions will be made by the Joint Committee, made up of representatives from the EU and the UK.

The WAB does not set out what role, if any, the Northern Ireland Executive and Assembly would have in the decision whether to extend the transition period.

Commons Briefing papers CBP-8720

Author: John Curtis

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