Will the Welsh Government recommend consent for the Northern Ireland Protocol Bill?

On 13 June, the UK Government introduced the Northern Ireland Protocol Bill. If passed, it would turn off parts of the Northern Ireland Protocol in domestic law, empower Ministers to turn off other parts and enable Ministers to put different arrangements in place, without the EU’s input or consent.

The UK Government claims the Bill is the only way to address the “diversion of trade and serious societal and economic difficulties” caused by the Protocol, which it argues also fails to protect the Good Friday Agreement. The EU believes the Bill is “illegal” and has launched a total of seven infringement proceedings against the UK.

In anticipation of the Bill, the Welsh Government warned of the risks posed by the UK Government’s plans. The First Minister and others said they could damage the UK’s international standing, potentially break international law and negatively affect the economy.

The Bill would grant new powers to Welsh Ministers and authorities and could override Welsh legislation that implements the Protocol.

The Senedd will be asked to consent to the Bill because it includes devolved matters. This article summarises the Welsh Government’s initial response while we await the start of the consent process.

International reputation

Prior to the Bill’s introduction in May, the First Minister warned the Prime Minister of the reputational risks involved and urged him to continue talking to the EU.

Following its introduction, the First Minister said the Bill “damages our standing in the rest of the world” and noted that a majority of the Northern Ireland Assembly had rejected the legislation “in the strongest possible terms”.

The Welsh Government’s Minister for Economy said that it risks doing “lasting damage” to international and EU relations. The Counsel General said that the UK is “in grave danger of destroying its international reputation”, its “credibility in international law” and that the Bill represents “a gross failure of diplomacy and statesmanship”.

“A particular constitutional problem”

The UK Government accepts that the Bill envisages the non-performance of international obligations, although its reliance on necessity as a defence “remains to be tested”.

The Minister for the Economy states this is a matter of “grave concern” which has been criticised by many independent legal experts, including the UK Government’s former treasury solicitor, Sir Jonathan Jones QC.

The debate has moved on from ‘if’ to ‘when’ a breach occurs. Some, including the EU, consider the introduction of the Bill to be a breach, while others believe the breach would occur if the Bill becomes law.

The Welsh Government’s 28 June statement appears to create a third argument, that the Bill, “if enacted, could lead to a failure to fulfil international obligations”, suggesting that a breach could occur at a later date, after the Bill becomes law.

All pose an issue for the Welsh Government and Senedd because they will be asked to consent to legislation considered to either be a potential breach of international law already, or to contribute towards a potential future breach. The Counsel General explains:

It creates a particular constitutional problem for us, I believe, if it is in breach of international law, because we will be asked to give consent to the legislation, and whether we can actually consent to something that effectively legitimises unlawfulness.

He also said that “even if [the UK] introduces its own domestic legislation, it cannot get out of its international obligations”.

The devolution settlement requires compliance with international obligations. However, it is silent on what happens if UK Government legislation is considered incompatible and ultimately, it is the UK Government that is responsible for UK compliance.

Early engagement on UK Bills “simply isn't happening”

In May, the First Minister told the Prime Minister that there was a “clear case” for all four UK governments to discuss the Bill together. However, a Welsh Government official told the Legislation, Justice and Constitution Affairs Committee that the Welsh Government did not have sight of the Bill prior to its introduction.

The Minister for Economy later said that the Bill was introduced “without any engagement” and that:

We should have early engagement on Bills that affect devolved competence; it simply isn't happening.

The Minister has also:

• accused the UK Government of breaching the principles of the Intergovernmental Relations Review, later describing the situation as “wholly at odds with the ways of working” agreed for this and for common frameworks;
• stated that the “most egregious breach” is the Bill’s provisions allowing UK Ministers to override Welsh legislation, discussed in more detail by the Counsel General during committee evidence; and
• described the Foreign Secretary’s assertion, that she introduced the Bill because she is “a patriot”, as “dangerous” and “divisive”.

The Counsel General has also sought assurances from the UK Government that it would respect the Sewel Convention in future, so that the UK Parliament would not normally legislate in devolved areas without consent.

A deterioration in UK-EU relations is “in nobody’s interests”

The Minister for Economy has warned that a deterioration in UK-EU relations is in “nobody’s interests”, especially as it risks worsening the cost-of-living crisis.

The EU initially launched three infringement proceedings against the UK, and later added four more:

In May, the First Minister told the Prime Minister that his plans would “risk material damage to the British economy”. He reiterated the Welsh Government’s position that Wales has a direct interest on matters which might affect Welsh businesses and in “anything” which affects NI-GB trade flows, given the strategic importance of its west-facing ports, particularly Holyhead.

One to watch

Here’s a quick recap of where we are:

• The Bill is now paused in the UK Parliament for recess, after which the UK will have a new Prime Minister. They will decide the Bill’s fate;
• The Northern Ireland Assembly is yet to be reconstituted following May’s election when Sinn Féin became the largest party. The Democratic Unionist Party (DUP) won’t re-enter power-sharing arrangements in protest at the Protocol;
• The EU has seven ‘live’ infringements against the UK with August and September response deadlines. The EU might take the UK to court, which could lead to a penalty payment, or retaliatory action via the Trade and Cooperation Agreement if the UK doesn’t respond; and
• The Senedd will return from recess on 12 September when we can expect more clarity on the Bill’s future.

If the Bill continues its passage, the consent process will, in the words of the First Minister:

give Members (…) an opportunity to look in greater detail at the case for this breach of international law and the impact that it will have here in Wales.

This unprecedented situation is one to watch and will mark another important post-Brexit milestone.

Article by Sara Moran, Senedd Research, Welsh Parliament