Re Baroness Hoey, Jim Allister MLA, Ben Habib and Jamie Bryson
I have been instructed by the above named persons, all of whom are interested in the constitutional status of Northern Ireland in the United Kingdom to advise on the effect of (1) the command paper, “Safeguarding the Union” (CP 1021), (2) the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, (3) the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024, and (4) the Marking of Retail Good Regulations 2024. In this advice these four texts are referred to as “these arrangements”.
I have also considered the effect of a draft decision of the Joint Committee established under the Withdrawal Agreement published on January 30 2024. This draft decision, if taken, brings about some changes to Joint Committee decision 1/2023.
Specifically, I am asked five questions about these arrangements whether together or single or in anycombination of them.
Before answering these questions I set out below some comments on key passages in the Command Paper and summaries of the content of the set sets of regulations. The summaries of the regulations are taken largely from the explanatory notes appended to each set of regulations.
The Command Paper
At the time of writing none of the three sets of regulations has been approved by Parliament but these advice proceeds on the basis that all three will be made. The command paper, “Safeguarding the Union”, does not, and cannot, itself bring about any change to the law. Annex A to the command paper, entitled, ‘Constitutional Context of the Windsor Framework’contains or articulates a number of legal propositions. The first two paragraphs contain two propositions that appear to be at variance with each other.
In paragraph 38 of the Command Paper one reads the following proposition: “The Framework, combined with domestic legislation, gives democratically elected representatives [i.e. in the Northern Ireland Assembly] the means to reject new or amended EU goods legislation.” In paragraph 39, however, one reads the following proposition: “As Michel Barnier’s former chief adviser said, “The so-called ‘Stormont brake’, while not a full “pick and choose” mechanism in EU single market rules, does amount to a clear veto possibility for the UK Government, directive-by-directive, at the behest of a minority in the Northern Ireland Assembly.””
Contrary to the proposition advanced in paragraph 38, the ‘so-called Stormont brake’ cannot, as paragraph 39 explains, be applied by ‘Stormont’; it can only be applied by the United Kingdom Government. Further, the ‘Stormont brake’ is not a veto; it is a “veto possibility”. Lurking in the expression “veto possibility” is, perhaps, an acceptance that the United Kingdom, under the ‘Stormont brake’ only possesses a veto if its opposition is either (i) accepted by the EU or (ii) upheld by an arbitration panel.
Paragraph 43 of the command paper is set out in full below:
The provisions of the Windsor Framework, through mechanisms such as the Stormont Brake, and the package of measures published alongside this analysis are further examples of the evolution of the multifaceted legal safeguards for the Union.
Insofar as this paragraph is advanced is a statement of constitutional law, it simply cannot be reconciled with the effect of the Protocol as analysed by Colton J, the Court of Appeal, and the Supreme Court in the proceedings brought by (among others) Mr Habib, Lady Hoey, and Mr Allister: see [2021] NIQB 64 at [62], [2022] NICA 15 [183] to [186], [193], [2023] UKSC 5 at [54].
It is natural that political opinions on these matters will differ. The political view can be – and is – taken that the Protocol/Windsor Framework matters more than the Union but it does not seem possible to say, as a matter of constitutional law, that the Windsor Framework’s provisions are “further examples of the evolution of the multifaceted legal safeguards for the Union” if by ‘the Union’ is meant the Acts of Union 1800.
The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024
The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 will not even if made, and approved by Parliament, come into force unless an Executive has been formed: se regulation 1 (2). There are three substantive regulations. Regulation 2 provides for amendments to the European Union (Withdrawal Agreement) Act 2020. Section 38 of that Act is amended to insert provision about the Windsor Framework with reference to existing constitutional arrangements, including the constitutional status of Northern Ireland as part of the United Kingdom, the United Kingdom’s internal market, the power of the Parliament of the United Kingdom to legislate for Northern Ireland and executive power in Northern Ireland. A new section 38A is inserted to provide for a restriction on the making of certain Northern Irelandrelated agreements with the European Union where they cover related subject matter to the subject matter of the Windsor Framework. This regulation also updates the definition of “withdrawal agreement” in section 39 of the same Act to reflect its re-branding as the Windsor Framework. Regulation 3 provides for amendmentsto the European Union (Withdrawal) Act 2018, including an amendment to section 7A (General implementation of remainder of withdrawal agreement). Section 7A is the “conduit pipe” through which certain EU law applied by the withdrawal agreement flows into domestic law. The amendment made by this regulation clarifies that, under the provisions of the Windsor Framework, there are democratic scrutiny and consent mechanisms that apply to that EU law. A new section 13C is also inserted, making provision for statements to be made in relation to Bills that affect trade between Northern Ireland and another part of the United Kingdom.
The Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024
The Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024 contains two substantive provisions. Regulation 2 inserts four new sections into the United Kingdom Internal Market Act 2020. New section 45A describes how provisions of the Act provide for unfettered access for qualifying Northern Ireland goods to the rest of the internal market of the United Kingdom. New section 45B describes the position in relation to export procedures for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market as set out in the Unilateral Declaration by the United Kingdom of Great Britain and Northern Ireland in the Withdrawal Agreement Joint Committee on export procedures for goods moving from Northern Ireland to other parts of the United Kingdom, dated 24 March 2023. New section 45C describes how provisions of the Act make provision for the purpose of facilitating trade between Northern Ireland and the rest of the United Kingdom. New section 46A provides that the Secretary of State may issue guidance to assist appropriate authorities in the exercise of the duty in section 46(1) of the Act. Regulation 2 also replaces the meaning of an “NI-GB” check, control or administrative process set out in section 47(8) of the United Kingdom Internal Market Act 2020 and inserts a definition of “Windsor Framework” into section 58 of that Act. Regulation 3 makes a number of amendments to the Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020, which established the definition of “qualifying Northern Ireland goods” under section 8C(6) of the European Union (Withdrawal) Act 2018.
The Marking of Retail Goods Regulations 2004
The Marking of Retail Goods Regulations 2024 will, if made, and approved by Parliament, come into force on 1st October 2024. They will extend only to England and Wales and Scotland. The Secretary of State is, as he acknowledges in the recital, bound to consult on the content of these regulations pursuant to Article 9 of Regulation (EC) No. 178/2002, and the outcome of that consultation ought not to be a formality. If these regulations are made and approved by Parliament then their effect will be, subject to certain exceptions, to require prepacked retail goods, prepacked diary, prepacked meat, and prepacked milk not to be placed on the market unless each item bears an individual ‘not for EU’ marking.
The Joint Committee Decision contains, as noted above, changes to its decision of last year. Under these amendments it will still be necessary to apply for authorisation to bring in goods with authorisation being dependent, inter alia, on the EU customs tariff for those goods being equal or less to that applicable UK customs tariff for those goods (see Article 7 (1) (b) (i) of the amended decision). This condition illustrates the extent to which, as a matter of operational reality, Northern Ireland is in EU customs territory.
There is also a quota for specified categories of goods in Annex V: see amended Article 7.
It is a condition of authorisation (cf. Article 9 (4) of the amended decision) that after the end of each annual quota period the holder of an authorisation (the trader) shall provide the quantity of goods moved under Article 7(1)(b)(iii) during that quota period and the quantity planned for the current quota period.
The Questions
Do these arrangements restore Article 6 of the Act(s) of Union 1800, reversing the modification/subjugation/suspension identified in Re Allister?
I do not understand the use of ‘restore’ in this question to refer to the period immediately after the coming into force of the Acts of Union 1800. I understand ‘restore’ to refer to the period before the Withdrawal Agreement (including the Ireland-Northern Ireland Protocol/now Windsor Framework) came into effect.
Plainly during the currency of United Kingdom membership of the EU there was no modification/subjugation/suspension of Article VI of the Acts of Union. All parts of the United Kingdom were on the same footing as respects trade.
That is no longer true. The Protocol/Windsor Framework was designed to make special provision for Northern Ireland that was not made for the rest of the United Kingdom.
Some play has been made with the continued existence of some tariffs for a period after 1801. It does not appear to have been acknowledged, however, that Article VI made specific provision for such tariffs as appears from the words from that article quoted below:
That all articles the growth, produce, or manufacture of either country, (not herein-after enumerated as subject to specific duties) shall from thenceforth be imported into each country from the other free from duty, other than such countervailing duties . . . . . . as shall hereafter be imposed by the parliament of the united kingdom in the manner herein-after provided; . . .
The words omitted were removed by virtue of the Statute Law Revision (Ireland) Act 1879. As is well known the nineteenth century exercise of statute law revision involved the removal of legislative provisions that had clearly become obsolete. It is safe to say, therefore, that by 1879 at the latest there was no specific duty carried over from the pre-1801 arrangements.
Further, as the passage from Article VI quoted above makes clear, duties can still be imposed on goods flowing between the two parts of the United Kingdom but they must be equalised (“countervailing duties”) and imposed by Parliament, thus maintaining the general ‘equal footing’ guarantee at the core of Article VI.
In paragraph [185] of the Court of Appeal judgment in Re Allister [2022] NICA 15 the Lady Chief Justice identifies Articles 5 to 10 of the Protocol (the effects of which she summarises at [141] to [143]) as supporting the “valid argument that the EUWA 2018 as amended conflicts with the same footing provision in Article VI because the citizens of Northern Ireland remain subject to some EU regulation and rules as part of the withdrawal framework which does not apply to other citizens of the United Kingdom”.
She puts the matter this way at [157]:
“In practical terms the Protocol also means that the treatment of NI products differs from that of GB products due to the need for border checks and regulation and the application of customs duty. Hence, the claim made by the appellants that NI is treated differently within the UK and that in avoiding a hard border on the island of Ireland an effective border has been created in the Irish Sea between Ireland and Britain.”
These findings by the Court of Appeal were undisturbed by the Supreme Court.
Nothing in these arrangements changes Articles 5 to 10 of the Protocol/Windsor Framework; nothing in these arrangements changes the impact of the Protocol on Article VI of the Acts of Union 1800. While Annex A of the Command Paper seeks to persuade the reader that Article VI is not as important as many people have considered it, and still consider it, to be, nothing in the Command Paper can alter in the least either the analysis of the Northern Ireland Courts of the guarantee created by Article VI or the subjugating/suspending effects of the Protocol on Article VI.
Article VI of the Acts of Union was designed to achieve for Great Britain and Ireland what had been achieved by the first part of Article XVIII of the Scottish Union 1707 for England and Scotland. Nothing has occurred to Article XVIII in respect of trade and duties that resembles what has happened to Article VI.
Only a negative answer can be given to this question.
Do these arrangements remove the customs and regulatory border in the Irish Sea?
I have quoted above the analysis given by the Northern Ireland Court of Appeal in paragraph [157]. There was a still fuller analysis by McCloskey LJ in his concurring judgment at [325] in which he said, “The effect of the Protocol is that NI on its own, without GB, is in regulatory alignment with an extensive body of EU rules governing manufactured and agricultural goods: per Article 5(4) and Annex 2. This is conveniently summarised by Professor Stephen Weatherill in McCrudden (op cit), pp 71 – 72. Annex 2 to the Protocol lists 287 EU legislative instruments: a non-static list which is subject to amendment and enlargement. The NI/EU alignment also embraces EU customs regime trade rules, VAT and excise rules, the single electricity market and specific state aid rules: Protocol, Articles 5 to 10. All of this means that the treatment of NI products differs from that of GB products. By virtue of these divergent regulatory regimes there is a customs and regulatory border between NI and GB. In consequence, NI belongs more to the EU internal market than the UK internal market. [emphasis added] Resulting alterations in trade patterns are inevitable.”
He summarised at [327] by saying, “In a nutshell, the Protocol creates a customs and regulatory border between NI and GB in those specified areas of trade to which it applies. It positions NI primarily within the EU internal market rather than that of the UK.”
Nothing in these arrangements undoes the effect of the Protocol. Indeed, by virtue of section 7A of the European Union (Withdrawal) Act 2018, the (draft) legislation including in these arrangements would simply not be legally capable of achieving such an effect. Were the 2024 regulations to essay such an effect (and they do not) they would be manifestly susceptible to challenge.
While there are changes effected by the Joint Committee decision to its decision 1/2023 these continue to provide for an authorisation regime that rests, in part, on a quota system and on Northern Ireland retaining distinctions operationally from the UK customs regime.
Only a negative answer can be given to this question.
Do these arrangements provide for zero checks and zero paperwork for GB goods destined for Northern Ireland?
There is nothing in the three sets of 2024 Regulations which can be said to “provide for zero checks and zero paperwork for GB goods destined for Northern Ireland.”
Paragraph 96 of the Command Paper reads as follows:
“As we transition to the UK internal market system, through our risk management approach we will provide clear legal direction to DAERA and other UK Government authorities to eliminate any physical checks when goods move within the UK internal market system, except those conducted by UK authorities and required as part of a risk-based or intelligence-led approach to tackle managing risk through criminality, abuse of the scheme, smuggling and disease risks. To deliver this new intention, the Government will take direct powers at Westminster to direct NI bodies to protect the UK internal market.”
As noted above, nothing in the Command Paper has the force of law. This passage looks to the future and contains a commitment that at some – unspecified – date in the future physical checks will be eliminated except those (1) conducted by UK authorities and (2) required as part of a risk-based or intelligence led approach “to tackle managing risk through criminality, abuse of the scheme, smuggling and disease risks.
Paragraph 96 does not contain a future commitment to the removal of all checks and not even to the removal of all physical checks. That the checks in the future will, it is said, be conducted by UK authorities does not appear significant given that Article 12 (1) of the Protocol already provides for enforcement of relevant EU law to be the responsibility of the public authorities of the United Kingdom – underpinned by a power of direction given to EU officials in respect of control measures (Article 12 (2)).
As for a ‘risk-based’ approach the extent to which this can be said to constitute a lesser burden depends on how the relevant risk is assessed and countered. In this context the reference to the risk of ‘smuggling’ (in the setting of GB-NI trade) is an acknowledgment of the continued existence of a customs barrier between Great Britain and Northern Ireland.
The changes effected by the Joint Committee decision to its decision 1/2023 continue to provide for an authorisation regime, including after the event monitoring of quotas.
This question can be properly answered by saying that these arrangements do not currently provide for “zero checks and zero paperwork for GB goods destined for Northern Ireland”, that there is a future commitment to a reduction of checks but not to their entire removal.
Do these arrangements diminish or otherwise vary the effect of section 7A of the European Union (Withdrawal) Act 2018?
Regulation 3 (2) of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 inserts the following new words into section 7A of the European Union (Withdrawal) Act 2018:
“(3A) The following provide for the application in Northern Ireland of EU law relating to the trade in goods necessary for the functioning of the Windsor Framework in the withdrawal agreement to be subject to democratic consent and scrutiny— (a) Articles 13 and 18 of that Framework, and (b) Part 5A(d) of the Northern Ireland Act 1998.
To the extent that new words are added to section 7A of the 2018 Act then it is proper to acknowledge that section 7A has been changed. But the question asked of me is directed to the effect of section 7A and it suffices to read the words inserted – which are a statement of the current legal position – to see that the pre-existing effect of section 7A, that is, the effect of section 7A before the making of these regulations, is entirely unaffected.
Only a negative answer can be given to this question.
Do these arrangements undo the effect of EU Regulation 2017/625 as identified in Rooney and JR181 (3) which require Northern Ireland to be treated as EU territory for the purposes of that Regulation?
In JR181 (3) [2022] NIKB 22 it was argued for Minister Pootsthat Northern Ireland should not be treated as EU territory for the purposes of Regulation 2017/625 because Northern Ireland, as part of the United Kingdom, had left the EU. Colton J concluded, however at paragraph [179]: “Thus, the UK is not to be treated as a unitary state for the purposes of OCR checks coming from GB into NI. This textual analysis is entirely consistent with the purpose, intention and objective of the Protocol itself.” The reference by Colton J to ‘OCR checks’ is to the checks required by Regulation 2017/625.
These arrangements do not undo this aspect of the judgment in JR 181 (3) and only a negative answer can be given to this question.
John Larkin KC
Bar Library
February 1 2024