Robert Buckland is MP for South Swindon, and is a former Secretary of State for Justice, Lord Chancellor, and Solicitor General.
In a different age, it was not uncommon for treaties to set out that they would remain fixed as long ‘as the sun and moon shall endure’.
It goes without saying that even then, states found ways of adjusting their terms – for while the sun and the moon are predictable, other events in life are not.
One way of dealing with things is to adopt a stance of masterly inactivity, watching and waiting to see which way the wind will blow. The problem with this is that such an approach is usually taken to preserve a position that is in the national interest.
When it comes to the Northern Ireland Protocol, the reverse is true.
The Protocol was written with several objectives in mind: safeguarding the Belfast (Good Friday) Agreement; ensuring north-south links were undisturbed by any ‘hard’ border; and protecting the EU’s single market whilst at the same time protecting the UK’s territorial integrity and customs union.
Needless to say, this was a novel agreement, and no one could predict how it would be received. What was more important for east-west trade: avoiding tariffs, or paperwork? Would state aid really be an issue? Or would the UK ever, realistically diverge on VAT? None of this could be known in advance.
It is not my purpose to give a full account of the problems with the Protocol. It seems clear that it has achieved some of its objectives, but not others.
It is true that north-south trade is unfettered, and it seems that the EU single market has been protected. Despite the only partial implementation of the Protocol (given the ‘grace periods’ on many of the onerous checks), there has been no discernible evidence of leakage into the Single Market.
In contrast, however, east-west trade is greatly disrupted, which means that the Belfast Agreement has been significantly disturbed.
Difficulties in trading, not to mention getting pets and parcels across the Irish Sea, have caused a sense of separation. Missing out on VAT savings that apply in Great Britain, or on targeted tax packages like Freeports, create a sense of unfairness.
Living with EU law and Court of Justice of the European Union (CJEU) jurisdiction, with no option to produce under UK law, leaves many unionists asking: what has happened to the constitutional settlement that kept Northern Ireland as part of the UK?
The executive and assembly have collapsed, without any real chance of getting back up and running until these mixed issues of identity and trade are resolved. With Tony Blair and Hilary Benn rightly outlining the need for compromise and change from the EU, doing nothing is not an option for the Government.
The question for lawyers is: what are the pathways to resolution? The answer depends on what legal ‘routes’ we have available to justify this legislation if and when it actually comes into force, or is otherwise challenged.
Firstly, we should look to the Protocol itself.
The Protocol was alive to the unpredictability of events. It contained Article 13(8) which made it clear the terms could be renegotiated in whole or in part.
The Withdrawal Agreement (which the Protocol is a part of) contains an even clearer admission of the need for flexibility: Article 164(5)(d) noted that the Joint Committee could agree to change the text of the Protocol, to address ‘deficiencies’ or to address ‘situations unforeseen’.
It also contains Article 16, which allows one party to take steps to respond to serious economic or societal difficulties, or the diversion of trade.
However, all of these routes have limitations.
The first two require a willingness to renegotiate. For now, that route is closed, with the EU unwilling to change its mandate and to even use the word ‘negotiation’ to describe the 300 hours of talks that have taken place over the last 18 months.
What, then, of Article 16? That has the advantage of being something the UK can commence by itself. It then mandates a period of consultation, but would probably end up being ruled upon by arbitrators.
The issue here is that the breadth of Article 16 is untested, which means legal uncertainty, both domestically and internationally. The problems of the Protocol are significant, and the changes needed to the Protocol would seem to require stability and certainty.
This route is a possibility, but an uncertain one. Sensibly, the Government seems to be keeping its powder dry on this one, with its legal statement said to be ‘without prejudice’ to a potential use of Article 16.
The clearest route that remains is something not found in the Protocol at all, but in customary international law. It is the rarely-used doctrine of ‘necessity’. It is often called upon when all other options have run out – but where, nonetheless, there is a requirement to act in order to safeguard an ‘essential interest’.
Usually, if things are bad enough to justify necessity, the other side sees that too, and are willing to negotiate. But sometimes that is not possible.
In the mid-1990s, the Canadians faced a similar dilemma. The Newfoundland Grand Banks were being overfished – but the relevant international law obligations could not be re-negotiated in time to deal with the situation. So it legislated on the basis of ‘necessity’ – seeking to protect its essential interest (if not that of the fish).
The UK’s ‘essential interests’ are clear: maintaining stable social and political conditions in Northern Ireland; ensuring the unique constitutional structures of that agreement are effectively functioning; and preserving and fostering social and economic ties between Northern Ireland and the rest of the United Kingdom.
All of these, one way or another, draw on the Belfast Agreement. It is not by accident that this features heavily in all statements and documents in the lead up to the agreement, and is very clear in the first article of the Protocol itself: the Protocol is ‘without prejudice’ to the Belfast Agreement – and the Protocol is ‘necessary’ to ‘protect the 1998 Agreement in all its dimensions’.
In times when co-operation with the EU seemed impossible, we were able to agree that the Belfast Agreement stood head and shoulders above all else. Both sides entered the Protocol in good faith, believing its provisions would provide the right balance, the right compromise for all who call Northern Ireland home.
But events have proven otherwise. At a time when European co-ordination has never seemed so vital, or so necessary, it is my hope that whatever their differences, we can still agree on this: that we must do everything we can to preserve the gains of the peace process.
That means giving devolved political institutions the best chance of getting up and running. That means ensuring that both communities can buy into an agreement that delivers a balance in trade and in identities. That means securing peace in Northern Ireland for another generation.
And that means in order for the Protocol to achieve all of its objectives, it needs to change.
Robert Buckland is MP for South Swindon, and is a former Secretary of State for Justice, Lord Chancellor, and Solicitor General.
In a different age, it was not uncommon for treaties to set out that they would remain fixed as long ‘as the sun and moon shall endure’.
It goes without saying that even then, states found ways of adjusting their terms – for while the sun and the moon are predictable, other events in life are not.
One way of dealing with things is to adopt a stance of masterly inactivity, watching and waiting to see which way the wind will blow. The problem with this is that such an approach is usually taken to preserve a position that is in the national interest.
When it comes to the Northern Ireland Protocol, the reverse is true.
The Protocol was written with several objectives in mind: safeguarding the Belfast (Good Friday) Agreement; ensuring north-south links were undisturbed by any ‘hard’ border; and protecting the EU’s single market whilst at the same time protecting the UK’s territorial integrity and customs union.
Needless to say, this was a novel agreement, and no one could predict how it would be received. What was more important for east-west trade: avoiding tariffs, or paperwork? Would state aid really be an issue? Or would the UK ever, realistically diverge on VAT? None of this could be known in advance.
It is not my purpose to give a full account of the problems with the Protocol. It seems clear that it has achieved some of its objectives, but not others.
It is true that north-south trade is unfettered, and it seems that the EU single market has been protected. Despite the only partial implementation of the Protocol (given the ‘grace periods’ on many of the onerous checks), there has been no discernible evidence of leakage into the Single Market.
In contrast, however, east-west trade is greatly disrupted, which means that the Belfast Agreement has been significantly disturbed.
Difficulties in trading, not to mention getting pets and parcels across the Irish Sea, have caused a sense of separation. Missing out on VAT savings that apply in Great Britain, or on targeted tax packages like Freeports, create a sense of unfairness.
Living with EU law and Court of Justice of the European Union (CJEU) jurisdiction, with no option to produce under UK law, leaves many unionists asking: what has happened to the constitutional settlement that kept Northern Ireland as part of the UK?
The executive and assembly have collapsed, without any real chance of getting back up and running until these mixed issues of identity and trade are resolved. With Tony Blair and Hilary Benn rightly outlining the need for compromise and change from the EU, doing nothing is not an option for the Government.
The question for lawyers is: what are the pathways to resolution? The answer depends on what legal ‘routes’ we have available to justify this legislation if and when it actually comes into force, or is otherwise challenged.
Firstly, we should look to the Protocol itself.
The Protocol was alive to the unpredictability of events. It contained Article 13(8) which made it clear the terms could be renegotiated in whole or in part.
The Withdrawal Agreement (which the Protocol is a part of) contains an even clearer admission of the need for flexibility: Article 164(5)(d) noted that the Joint Committee could agree to change the text of the Protocol, to address ‘deficiencies’ or to address ‘situations unforeseen’.
It also contains Article 16, which allows one party to take steps to respond to serious economic or societal difficulties, or the diversion of trade.
However, all of these routes have limitations.
The first two require a willingness to renegotiate. For now, that route is closed, with the EU unwilling to change its mandate and to even use the word ‘negotiation’ to describe the 300 hours of talks that have taken place over the last 18 months.
What, then, of Article 16? That has the advantage of being something the UK can commence by itself. It then mandates a period of consultation, but would probably end up being ruled upon by arbitrators.
The issue here is that the breadth of Article 16 is untested, which means legal uncertainty, both domestically and internationally. The problems of the Protocol are significant, and the changes needed to the Protocol would seem to require stability and certainty.
This route is a possibility, but an uncertain one. Sensibly, the Government seems to be keeping its powder dry on this one, with its legal statement said to be ‘without prejudice’ to a potential use of Article 16.
The clearest route that remains is something not found in the Protocol at all, but in customary international law. It is the rarely-used doctrine of ‘necessity’. It is often called upon when all other options have run out – but where, nonetheless, there is a requirement to act in order to safeguard an ‘essential interest’.
Usually, if things are bad enough to justify necessity, the other side sees that too, and are willing to negotiate. But sometimes that is not possible.
In the mid-1990s, the Canadians faced a similar dilemma. The Newfoundland Grand Banks were being overfished – but the relevant international law obligations could not be re-negotiated in time to deal with the situation. So it legislated on the basis of ‘necessity’ – seeking to protect its essential interest (if not that of the fish).
The UK’s ‘essential interests’ are clear: maintaining stable social and political conditions in Northern Ireland; ensuring the unique constitutional structures of that agreement are effectively functioning; and preserving and fostering social and economic ties between Northern Ireland and the rest of the United Kingdom.
All of these, one way or another, draw on the Belfast Agreement. It is not by accident that this features heavily in all statements and documents in the lead up to the agreement, and is very clear in the first article of the Protocol itself: the Protocol is ‘without prejudice’ to the Belfast Agreement – and the Protocol is ‘necessary’ to ‘protect the 1998 Agreement in all its dimensions’.
In times when co-operation with the EU seemed impossible, we were able to agree that the Belfast Agreement stood head and shoulders above all else. Both sides entered the Protocol in good faith, believing its provisions would provide the right balance, the right compromise for all who call Northern Ireland home.
But events have proven otherwise. At a time when European co-ordination has never seemed so vital, or so necessary, it is my hope that whatever their differences, we can still agree on this: that we must do everything we can to preserve the gains of the peace process.
That means giving devolved political institutions the best chance of getting up and running. That means ensuring that both communities can buy into an agreement that delivers a balance in trade and in identities. That means securing peace in Northern Ireland for another generation.
And that means in order for the Protocol to achieve all of its objectives, it needs to change.