In 2020, the fate of the Assembly will be one of the simpler issues

In agonising over terms for  recreating a functioning Stormont, the old chestnuts of an Irish Language Act and the petition of concern could be the easy bits – which is one reason why the DUP and Sinn Fein if they have any sense  at all, should grab at a deal. Truth to tell they are still in their comfort zone. Far more difficult issues are looming just a little way down the track. And it’s doubtful if the Assembly parties unaided have the capacity to tackle them even assuming they have the political will.

One is a looming confrontation over the UK government’s proposed reform of the Human Rights Act. In their proposal for a Commission on the Constitution and Democratic Reform in the Queen’s Speech, Boris Johnson’s government has at last got the old Tory target of the Human Rights Act in their sights. Not that they’ve noticed that it’s the cornerstone of the GFA, except possibly in one respect, that they still aim to end “vexatious” army prosecutions. This brings them into conflict with their own Legacy Bill and is the subject of a fierce struggle between the NIO and the MoD. I wouldn’t bet on the NIO carrying the day even if Julian Smith manages to avoid the chop after 31 January.

The other big issue is the proposed role for MLAs – whether sitting or not –  in deciding on whether to maintain Northern Ireland’s  special status within the EU single market. The degree of discretion being proposed for the Assembly will depend on how much friction will be created in  trading between GB to NI  by the terms of the overall settlement between the UK and EU – in old parlance, whether there will be a hard or a soft Brexit. The process and procedure for managing this is a nightmare, the sort of arrangements negotiators reach in desperation to achieve viability. In the present state of relations, it’s hard to imagine the Assembly parties coping with the responsibilities.  Our local experts have laid out the issues in QPOL. First, Professor David Phinnemore on the process itself          

 

Less attention has been paid to economically important and politically sensitive decisions required by the protocol on Ireland/Northern Ireland. These need to be taken by the UK-EU Joint Committee before the protocol is set formally and fully to enter into force on 1 January 2021.

There are four sets of decisions.

A first concerns customs and the free movement of goods, particularly regarding the conditions under which goods from the rest of the UK can enter Northern Ireland after transition.

The extent of these will be heavily determined by the nature and scope of the UK-EU trade relationship to be negotiated during transition and the extent to which the UK commits to a regulatory ‘level-playing field’ with the EU.

In determining the ‘at risk’ goods, the UK and the EU must also agree levels of admissible ‘commercial processing’ in Northern Ireland. This is no easy task….

The UK and the EU must consider the final destination and use of each good, its nature and value, the nature of the movement, and the potential for smuggling….

.More generally, the Joint Committee in reaching its decisions shall have ‘due regard’ to the (undefined) ‘specific circumstances in Northern Ireland’.

Whether this means the EU will be open to some flexibility in implementing the Union Customs Code and some derogations is far from certain.

A second set of decisions concerns fish…… the Joint Committee must decide, in the absence of a comprehensive UK-EU agreement on fish, which fish and other aquaculture products landed in Northern Ireland by vessels registered in Northern Ireland are to be exempt from EU customs duties after transition.

Third, the Joint Committee must agree the level of permissible agricultural subsidies the UK can make available to producers in Northern Ireland.

Such levels of subsidies need to be agreed if products from Northern Ireland are to be able traded freely into the EU market. In the absence of a decision, EU state aid rules will be applied to agricultural support measures in Northern Ireland.

A fourth set of decisions relates to the implementation of the protocol in the UK and the ‘practical working arrangements’ for EU officials in that process. Formally, responsibility for implementation rests with the UK government.

However, EU representatives have the right to ‘be present during any of the activities’ UK authorities undertake to apply the provisions of EU law required by the protocol and the protocol’s customs and other provisions regarding the free movement of goods.

Also, the UK authorities are required to provide the EU representatives ‘upon request’ all relevant information relating to its activities; they must also carry out ‘control measures’ when requested by the EU representatives.

The UK-EU Joint Committee taking the above decisions will comprise EU and UK representatives with either a member of the European Commission and a UK minister attending or ‘high-level officials designated to act as their alternates’.

Meetings will be held at least annually as well as at the request of either party. Decisions will be taken by mutual consent meaning both the UK and the EU can veto.

The composition of the UK delegation to meetings is to be decided by the UK government.

The option exists, albeit not referenced in the protocol, for ministers from the Northern Ireland Executive, when functioning, to accompany the UK minister. Senior officials from the Northern Ireland Civil Service could accompany their UK counterparts.

Making recommendations to the Joint Committee will be a UK-EU ‘Specialised Committee’.

It will be examining issues raised by the UK-EU ‘Joint Consultative Working Group’. Its purpose is to ‘serve as a forum for the exchange of information and mutual consultation’.

In addition, the Specialised Committee can receive proposals from the North-South Implementation bodies set up under the 1998 Agreement as well as the North-South Ministerial Council (although it can only meet if a Northern Ireland Executive is in place).

There is clearly important work to be carried out during 2020 to ensure the effective implementation of the protocol. In addition to the four sets of decisions above, the transition period also requires the UK government on its own to act to fulfil obligations.

This is particularly so regarding post-transition implementation of the protocol’s arrangements for VAT and excise where EU rules are to apply ‘to and in the United Kingdom in respect of Northern Ireland’.

Preparatory work will also need to be done so that commitments regarding technical regulations, assessments, registrations, certificates, approvals and authorisations can met from when the protocol comes fully into force.

Serious doubts exist as to whether there is enough time to do this.

The transition period will be dominated by the negotiations on the future UK-EU relationship. And these will have implications for the implementation and effects of the protocol on Ireland/Northern Ireland.

However, irrespective of what progress is made in the negotiations, the UK government and the EU have before them some challenging decisions that need to be taken during 2020 before the protocol can come into force.

 

Are you with me so far?

Katy Hayward explains the role for the Assembly

Democratic consent of NI

  • There is a new process proposed for ‘affording or withholding consent’ from NI for the application of Protocol Arts 5-10. According to the UK’s Unilateral Declaration on consent, the objective is ‘to achieve agreement that is as broad as possible in NI’.
  • The intention that agreement will be found via ‘a thorough process of public consultation’, inc. cross-community and cross-sectoral, led by the NI Executive and supported by the UK Government. B/GFA institutions will be involved in consultation.
  • The MLAs will be voting 4 years after the end of the transition period on the motion put forward that Arts 5-10 will continue to apply in NI (i.e. earliest Nov 2024; latest Dec 2026).
  • If there is no sitting Assembly, the UK Government will convene the MLAs for such a vote. Those present and voting will be considered, i.e. not possible to thwart by boycott.
  • If there is a cross-community vote in favour, the next vote will be in 8 years. If it is a simple majority vote in favour, the vote will be in 4 years, after an independent review.
  • If they vote to opt-out, Arts 5-10 will no longer apply after 2 years. The choice is framed as a binary one, i.e. to opt-out of EU rules in order to follow UK rules on customs, goods etc.
  • Then Joint Committee would make recommendations as to measures necessary to avoid a hard border. What these are would depend on nature of UK-EU relationship at that point.

Already the DUP are objecting to the simple majority threshold, believing they would be out voted if a majority of unionists – but not necessarily a majority of the Assembly- wished to withdraw from the single market after four years, thus locking them into direct alignment with the Republic indefinitely. And indeed the obstacles to withdrawal look set to be very high indeed.

Ideas for a Constitutional Democracy and Rights Commission to consider changes to the Human Rights Act and powers of judicial review have been developed in a paper by Prof Richard Ekins for the right wing think tank Policy Exchange. They would curb the powers of the courts and amend the Human Rights Act which is a corner- stone of the GFA. The proposals will be seen as revenge for the Supreme Court declaring illegal Johnson’s attempt to close Parliament down to force a general election.

Ekins proposes:

Working closely with Parliament, the Government should: • Legislate to reverse the effects of the Supreme Court’s recent prorogation judgment, restoring the non-justiciability of key prerogatives and vindicating the political constitution. • Affirm parliamentary sovereignty and stand ready to respond to attempts to undermine it. • Review the scope of judicial review and legislate to limit it where appropriate, reversing the effects of particular judgments by legislation when necessary. • Exercise existing ministerial powers in relation to judicial appointments, rejecting or requesting reconsideration of candidates where there are doubts about their suitability :

“The enactment of the Human Rights Act was significant, for it encouraged judges to shrug off traditional limits on their jurisdiction, to second-guess Parliament and confidently assert a general entitlement to address political questions.

The Government should work with other European countries to address the problem that the European Court of Human Rights often interprets the Convention in surprising ways. If this proves impossible, the Government should certainly consider not complying with judgments of the Strasbourg Court which brazenly go beyond the Convention’s terms. Likewise, the Government and Parliament should not meekly outsource responsibility for balancing rights and freedoms, for securing the common good or protecting national security, to the courts. Parliament may need to legislate to reverse judgments that unsettle constitutional fundamentals, including parliamentary sovereignty. It should certainly amend the Human Rights Act to minimise the damage it does.

 

The government has pledged to end “vexatious” Army  prosecutions but has so far ducked a firm commitment to set a time limit of ten years  from the alleged offence.  This would effectively rule out covering the Troubles unless the evidence was conclusive. Unless the UK government are contemplating a confrontation with nationalists like SDLP leader Colum Eastwood  and the  Irish government, they will have to consider further  special arrangements for Northern Ireland such as ending the 20 year deadlock and legislating for an NI Bill of Rights to replace the HRA.  {Incidentally the SNP are militantly opposed to  these proposals so we can expect a confrontation rivalling Brexit over them if the UK government presses ahead).  By itself though this would unlikely to solve the problem of security forces prosecutions. The   Conservative majority would be unlikely to sign off on one law for solders who had served in  Northern Ireland leaving them more open to further investigation and another for alleged human rights violations in Iraq and Afghanistan.

It’s not hard to understand why this agenda has been largely ignored in public discourse and commentary. It’s just to damn difficult for the parties to contemplate on their own; easier to stick with scratching at the old familiar sores. Sooner than later, they will have to be addressed in whatever forms finally emerge. 2020  will be a different but equally hectic year politically. Interestingly the new Ireland/NI protocol envisages a role for MLAs even if the Assembly isn’t sitting. I hadn’t picked up on that. Had you?

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