Dr Austen Morgan – Written evidence (NIP0002)

Austen Morgan is a barrister in London and Belfast. He practises from: 33 Bedford Row chambers: www.33bedfordrow.co.uk. He is the author of: The Belfast Agreement: a practical legal analysis (London 2000): www.austenmorgan.com/legalwriting/. His next book is: Pretence: why the United Kingdom needs a written constitution, to be published in 2022.

Introduction

1. I refer to the launch on 30 August 2022 of a new inquiry, by the sub- committee (of the European affairs committee of the house of lords) on the protocol on Ireland/Northern Ireland. This is part of the UK/EU withdrawal agreement of 19 October 2019.

2. I am a barrister in private practice who writes on the law. I am the author of a legal textbook on the 1998 Belfast agreement. My specialism is international, including EU, law.

3. I have read the sub-committee’s Follow-up report, 2nd report of session 2022-23, HL paper 57, 27 July 2022. This includes evidence I submitted on 3 June 2022: FUI0018.

4. On 13 June 2022, the government’s Northern Ireland Protocol Bill (‘the bill’) had its first reading in the house of commons. It passed all stages unamended, and had its first reading in the house of lords on 21 July 2022. The new inquiry is into the bill as currently drafted.

5. In this submission, I develop the legal arguments in my first submission with reference now to the bill.

6. I continue to use the following terminology: United Kingdom (‘UK’); Northern Ireland (‘NI’); European Union (‘EU’); Republic of Ireland (‘ROI’); Belfast agreement; and NI protocol; avoiding contentious Irish concepts.

Executive Summary

7. The bill is not a breach of international law, as supporters of the EU assert repeatedly. It addresses principally the mis-use of the Belfast agreement in the NI protocol. I point to the idea of an agreement to agree. The UK never agreed to an Irish sea border. I further consider the government’s options: specific derogation under article 16 of the NI protocol (safeguards); and the defence of necessity in customary

international law. Parliament is entitled to legislate, and this new domestic law will have to be commenced, before it can have any effects on the international plane.

Legal Arguments

8. It remains my view that the NI protocol has the character of an agreement to agree. In other words, there is little tied down strategically – it is difficult to specify some non performance, which would amount to a breach of the UK/EU withdrawal agreement.

9. (Query whether a breach of a bilateral agreement is, per se, a breach of international law, if there is good faith?)

10. I continue to refer to part 6 (articles 158 to 185) of the withdrawal agreement, which specifies London/Brussels dispute resolution machinery: the CJEU for citizens’ rights; the joint UK/EU committee, whose decisions have ‘the same legal effect as this Agreement’ (article 166(2)); a specialized committee on the implementation of the NI protocol; and extensive arbitration provisions.

11. The parties clearly anticipated continuing difficulties with the NI protocol: article 5 required the joint committee, before the end of the implementation period, to come up with answers on east-west trade1; article 6(2) requires constant review and avoiding controls at the ports and airports of NI, if possible; and article 18 sets a deadline of 1 January 2025, if there is no democratic consent in the NI assembly (to be assessed on a cross-community basis amended to a simple majority?).

Negotiations

12. Following the entry into force of the NI protocol at 23.00 on 31 December 2020, the UK and the EU wrestled with the so-called east- west border which began to appear because of unilateral action by Brussels (building on previous internal UK sanitary and phytosanitary controls).2

13. The UK position was stated definitively by Brandon Lewis and Lord Frost in: Northern Ireland Protocol: the way forward, CP 502, 21 July 2021. The command paper ruled out the article 16 safeguards provision, largely because it was not a permanent solution.

1 There was a joint committee agreement on 17 December 2020, which included grace periods and easements! The UK unilaterally extended easements in March 2021, and, in September 2021, it imposed standstill arrangements.

2 The commission, but not seemingly the UK, has archived all the papers on the web: meetings of the EU-UK joint and specialised committees under the withdrawal agreement.

14. The EU responded in October 2021, on four areas (food, plant and animal health, customs, medicines, and NI stakeholders), using the EU non paper mechanism.

15. Talks in the joint committee (Liz Truss and Maroš Šefčovič) broke

down on 21 February 2022.

16. On 17 May 2022, Liz Truss as foreign secretary (and following the resignation of Lord Frost) – reacting to the resignation of the NI first minister on 8 February 2022 and the non return of the assembly and executive after elections on 5 May 2022 – announced legislation to save the 1998 Belfast agreement.

The Bill

17. Saving the Belfast agreement (as explained in my first submission) may be described as the purpose of the bill.3

18. My argument is: Irish nationalists had illegitimately played the Belfast agreement card (with Michel Barnier); and it was now under threat from the unionist response to the NI protocol and the Irish sea border.

19. But the government also put forward a new legal justification, namely the doctrine of necessity in international law – citing its relatively recent codification: international law commission, Responsibility of States for Internationally Wrongful Acts, 2001, article 25.

20. Article 25 reads: ‘(1) Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of the State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. (2) In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity.’

3 The HC explanatory notes contained: ‘The purpose of the Bill is to provide Ministers with the powers to make changes to the operation of the Northern Ireland Protocol in domestic law which protect the Belfast (Good Friday) Agreement and to safeguard peace and stability in Northern

Ireland.’ (para 11O)

21. Article 25(1) is drafted negatively. There are two conditions precedent: (a) ‘a grave and imminent peril’; and (b) ‘does not seriously impair’. Article 25(2) contains two further conditions. These tests must relate to facts, which can be evidenced.

22. And the case invariably cited, between Hungary and the Slovak Republic, where necessity did not succeed, is: Case concerning the Gabčíkovo-Nagymaros project, ICJ, 25 September 1997.

23. One may see, in the negotiations after 31 December 2020, the evidence which may need to be used to demonstrate ‘a grave an imminent peril’ for the UK in NI, while there is no serious impairment to the EU protecting its internal market.

Dualism

24. To assess this argument of the government, one needs to grasp that the UK is a dualist state. There is domestic law, governed by the doctrine of parliamentary sovereignty. And there is international law, both customary international law and multilateral/bilateral treaties (most importantly the 1945 UN charter).

25. There is a further complication: namely EU law. EU law exits within international law, but its interaction with domestic UK law is subject to the – EU – doctrine of the supremacy of EU law.

26. Query whether the withdrawal agreement is simply a bilateral treaty, or whether the UK is required to deal with it as fundamental law in the UK?

27. The bill is intended to be a part of domestic law. It has effect only within the UK, within its three jurisdictions. While Brexit produced a torrent of legislation4, the 2019 withdrawal agreement, plus the consequential free-trade agreement of 24 December 2020, originated in international law and were then given effect in domestic law as part of the UK fulfilling its international obligations.

28. Thus the long title of the bill: ‘A bill to make provision about the effect in domestic law of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes’.

4 European Union (Withdrawal) Act 2018; European Union (Withdrawal) Act 2019 (now repealed); European Union (Withdrawal) (No. 2) Act 2019 (now repealed); and European Union (Withdrawal Agreement) Act 2020. The 2018 act as amended by the 2020 act is now the principal instrument.

Legal Opinions

29. Another committee, the Northern Ireland affairs committee, in the house of commons, with an inquiry into Brexit and the NI protocol, took evidence on 29 June 2022 from: Prof Alan Boyle of Essex Court chambers; and Prof Holger Hestermeyer of King’s College. The session demonstrated the difference between legal advocacy (Boyle) and academic law (Hestermeyer).5 I am with the former professionally.

30. Prof Boyle was clear that article 16 was a derogation from the NI protocol, and was a lawful route for the UK government. He was scathing about the alternative article 25 (of the international law commission codification), because that was a defence to the breach of an international agreement.

31. I take the view that the UK may rely upon both: article 16 first with the risks of reciprocity; and, if forced to breach by circumstances, article 25 – which is a wholly different ball game.

Clauses

32. Clause 1 (overview of the main provisions) – a new tendency in legislative drafting – states four objectives: (a) and (b) push back on incorporation of the NI protocol in domestic law; (c) relates to an ongoing court case in NI, where local judges have held there is implied repeal of constitutional statutes by the NI protocol; and (d) delegates primary law-making powers to ministers.

33. The bill is concerned with the effects of the European Union (Withdrawal) Act 2018 sections 7A, 7C and 8C (all added in 2020). These were consequential upon the following provisions: withdrawal agreement, articles 4, 6(3) and 166(2); and NI protocol, article 13(3)

and (4).

34. The bill also specifies – what is called – excluded provision in the NI protocol. This is the conceptual point where the UK derogates from an international agreement.

35. Clause 4 foregrounds article 5 (customs, movement of goods). Clause 7 permits the UK to pursue a UK regulatory route or an EU one. Clause 12 foregrounds article 10 (state aid). Clause 13

5 I note that Prof Boyle was due to give evidence to this committee on 7 September 2022. I have been unable to locate a transcript.

foregrounds article 12 (implementation, application, supervision and enforcement). Clause 15 lists UK concerns related to the Belfast agreement, but also the concepts of safeguards (article 16) and – by implication - necessity (article 25 of the international law commission codification). Clause 19 – perhaps revealing the government’s objective – provides for a new agreement replacing the NI protocol. And clause 20 pushes back against the CJEU.

Domestic and International Law

36. Parliament may, of course, amend earlier legislation. There is nothing unlawful in that. Nor is there anything unlawful about enactment. Clause 26 (extent, commencement and short title) brings sections 21 to 26 into force on royal assent. All the rest is left there, awaiting commencement.

37. However, under the withdrawal agreement, the UK agreed certain things with the EU. The purpose of the bill is to push back on the following provisions of the NI protocol: article 5 (customs, movement of goods); article 10 (state aid); and article 12 (implementation, application, supervision and enforcement), which includes the role of the CJEU.

38. This is to be justified, no doubt, as limited derogations, under article 16, or, alternatively, as necessary, under article 25 of the international law commission codification. But the justification only becomes necessary after commencement, and actions by the UK on the international plane.

A Precedent?

39. On 9 September 2020, the government had introduced a United Kingdom Internal Market bill in the house of commons.

40. On 17 December 2020 – the day of royal assent – Maroš Šefčovič issued a press statement, following the fifth joint committee meeting with Michael Gove.

41. He referred to the EU’s two main priorities having been met: ‘First, robust working arrangements for the EU’s presence in Northern Ireland so that our representatives can effectively carry out their tasks on the ground…The second priority, which I strongly welcome, is that the UK has committed to withdraw all contentious parts of its Internal Market Bill, and refrain from introducing any similar parts in its Taxation Bill.’