This blog is hosted on Ideas on EuropeIdeas on Europe Avatar

EUatOU

Analysing the changing EU-UK relationship

Latest

Legal options for changing the Northern Ireland Protocol

As a parting gift before a summer break, I’ve pulled together the various legal pathways currently available to changing the Protocol.

This is based on the text of the Protocol/Withdrawal Agreement itself, plus a bit of customary international law, and covers both modification and disapplication of the Protocol itself.

As the graphic suggests, there are three main paths.

First, amendment is possible through two routes. One is a minor corrections option within the Joint Committee, although these can’t change the basics of the text, so it’s not really an amendment procedure of any consequence (certainly in the current political climate). The other is a generic treaty amendment, concluded by mutual agreement of the parties.

Second, the Protocol allows for new EU-UK agreements to supersede all or part of the Protocol, with the only proviso that such supersession needs to be spelled out, presumably so that whatever remains of the Protocol has clear limits for its application. This is a remnant of the original backstop model negotiated by Theresa May, where the Protocol would only kick in if the future relationship (i.e. the TCA) didn’t cover certain criteria. However, it still requires the agreement of the EU too.

So the only unilateral pathway for UK changes to the Protocol is the Consent provision of Art.18, which allows the Northern Ireland Assembly to vote (from 2024) to disapply Arts.5-10 of the Protocol (i.e. the main economic elements).

While some have seen the current arguments about the Protocol as laying the groundwork for such a vote after next year’s Assembly elections, as an ‘escape’ from the Protocol, it’s essential to read all of Art.18.

In particular, non-Consent does not end any other obligation of the parties, especially (and pointedly) the Good Friday Agreement (Art.18(4)). As such, both the UK and EU would be bound by the same set of constraints that produced the Protocol in the first place.

This is all really just to underline that while the Protocol is undoubtedly problematic, it is also the product of intense negotiation and calculation by both sides that this is the least-worst option available. As I noted in a thread late last week, treaty-making comes with obligations and there is no path open to the UK to change that basic fact.

Whether that means the Protocol will stick is a very different question and one that we’ll have to come back to in September. Until then, have a good summer and do let me know if you have any requests on graphics, as I’m always happy to help where I can.

 

COMMENT

Recent Articles

Financial Settlement News

Published on by | No Comments

Perhaps the most striking thing about the breaking of the story about the unexpectedly large size of the UK’s financial liabilities under the Withdrawal Agreement last week was that it generated so little attention. The consolidated EU accounts for 2020 were published on 9 July, but it took a ‘tip-off‘ to RTE to get them […]

Meetings and the TCA/WA

Published on by | No Comments

One aspect of the WA/TCA pairing that will generally never get much attention is the meeting roster. Both treaties provide not only for a coordinating body – the Joint Committee (WA) and the Partnership Council (TCA) – but also a raft of more specialised bodies, roughly one for each section of each treaty. These bodies […]

Further grace periods

Published on by | No Comments

The past week has seen two important grace periods extended. These periods have been used in both the TCA and WA to allow the UK and EU enough time to make necessary preparations for full implementation, or that is at least the EU’s line. The less-remarked of the two has been the granting of data […]

Five years of (some of) Brexit

Published on by | No Comments

For me, it was the morning after that I remember most vividly. An early train to London left me wandering into Parliament Square at too-early-o’clock to hunt down the Radio5Live tent on College Green, to sit with Adrian Chiles for a few hours while he interviewed some of the many passing politicians about the result […]

Citizens’ rights under the Withdrawal Agreement

Published on by | No Comments

Citizens’ rights has been a rather strange part of the Brexit process, in that it has never occupied a very prominent place in the negotiations or discussions, even though it contains huge potential for disruption and problems. Whereas the financial obligations was seen as a big haggle, and the Irish dimension as complex, citizens’ rights […]

Pathways for the Northern Ireland Protocol

Published on by | Comments Off on Pathways for the Northern Ireland Protocol

With the first meeting of the TCA’s Partnership Council finally done, alongside the WA’s Joint Committee, it’s perhaps a good time to reflect a bit on the Northern Ireland Protocol. While this sits within the Withdrawal Agreement, it’s worth noting that sanctions for non-compliance can extend to any other agreement between the EU and UK, […]

A bit of trade and not much cooperation: The hard Brexit deal

Published on by | Comments Off on A bit of trade and not much cooperation: The hard Brexit deal

This is a draft version of a piece published in┬áPolitical Insight. Please refer to that version for any citations. Even before Covid, it was evident that 2020 was going to be a difficult one for British politics. The December 2019 general election might have given Boris Johnson the majority he needed to push through the […]

Making the WA/TCA work, institutionally

Published on by | Comments Off on Making the WA/TCA work, institutionally

As I noted in an earlier post, if the first priority in establishing the Withdrawal Agreement and the Trade & Cooperation Agreement was the legal text, then the second has been their implementation. Part – a very visible part – of that has been the politics of getting that done, from domestic arrangements and infrastructure […]

Some useful legal concepts for understanding the TCA/WA

Published on by | Comments Off on Some useful legal concepts for understanding the TCA/WA

As I mentioned last week, the focus so far on the Trade & Cooperation Agreement (and, to a lesser extent, the Withdrawal Agreement) has been on the legal aspects. Part of that has been driven by the growing realisation among non-legal scholars (like me) that there’s not merely a need to read the fine print […]

UACES and Ideas on Europe do not take responsibility for opinions expressed in articles on blogs hosted on Ideas on Europe. All opinions are those of the contributing authors.