14.1 Introduction
Brexit was in many respects a great revealer. Aside from the fractures it brought to the surface in the United Kingdom’s constitutional and political systems,Footnote 1 Brexit also taught us a lot about European Union law. Wightman provides a definitive and sophisticated statement of the constitutional nature of the Union.Footnote 2 More comprehensively, Brexit revealed the elements of European Union law that really mattered, namely economic integration and the laws and institutional structures which facilitate this process. What came to be at stake in the Brexit negotiations was the internal market and the customs union and the paraphernalia of laws and institutions which facilitate both.Footnote 3 Furthermore, it was not only the individual bodies of substantive law but the manner in which these all worked together to create an environment for economic integration and the creation of a single economic space. The UK’s attempts to ‘cherry-pick’ and the Union’s resistance to this, underlined the systemic nature of internal market law and its institutional framework – including legal procedures, legal effects and institutions. The metaphor of the ‘ecosystem’ of Union law is apt and useful.
Brexit also revealed another, more limited but nonetheless important and hitherto underappreciated characteristic or side effect of Union law. This was its role in facilitating the resolution of a postcolonial conflict with cross-border dimensions, which had persisted until the end of the last century in the north-west of Europe, namely what were known euphemistically as ‘the Troubles’ in Northern Ireland. This is the European Union as a peace project but perhaps differently than how that phrase is commonly understood. It was joint European Union membership of the United Kingdom and the Republic of Ireland that permitted conflicting political and constitutional aspirations of two communities – the legacy of a settler-type colony – to be accommodated. Intriguingly, and with some echoes of the Monnet method and the early hopes of neo-functionalism,Footnote 4 this operated not so much at the level of high constitutional principle: the so-called constitutional question and its link to post-sovereigntist tendencies in EU membership.Footnote 5 Instead, it was the day-to-day and quite technical operation of Union law and the common economic and social space it constructed between the two otherwise separate jurisdictions of Ireland and the United Kingdom which allowed the border to diminish as a marker of identity and separation, and for the aspirations of the nationalist community in Northern Ireland (i.e. that section of the population which typically identifies as Irish and would aspire for Northern Ireland to be unified with the Republic of Ireland) to be partially fulfilled.Footnote 6 The functional dimension of European Union law rather than (or in addition to) broader constitutional transformations played a key role in the facilitation of the peace process in Northern Ireland. Brexit entailed the removal of this largely unnoticed but crucial scaffold to the peace process in Northern Ireland and the resulting Belfast/Good Friday Agreement and, as a consequence, posed problems to the settlement embodied in that agreement, forcing constitutional choices which could be avoided in the context of joint EU membership.Footnote 7
The resulting Ireland/Northern Ireland Protocol (hereinafter referred to as the Protocol) is designed to compensate for the absence of joint EU membership caused by Brexit.Footnote 8 It is however an imperfect substitute. It is an attempt to keep Northern Ireland in the EU single market for goods and yet minimize any undermining of the constitutional position of Northern Ireland within the UK. As such, it has created a hybrid and truly liminal legal system,Footnote 9 especially when combined with the operation of devolved government in Northern Ireland. It combines legal sources from regional, national and transnational legal orders in a unique and complex way and crystallizes Northern Ireland’s position as lying between two unions.Footnote 10 It is a complex and far from ideal situation of legal pluralism or perhaps more accurately legal entanglement.Footnote 11 It is also a case study in the manner in which postcolonial conflict situations with cross-border dimensions can be facilitated by transnational law and legal systems and by a certain acceptance of legal pluralism.
After briefly providing some background on the colonial history of Ireland, this chapter will outline the crucial role played by Union law as a mostly invisible scaffold in the settlement embodied in the Belfast/Good Friday Agreement before reflecting on the necessary difficulties posed by Brexit and the resulting ‘solution’ in the form of the Protocol. A conclusion will reflect on the complex legal landscape which has emerged as a consequence of Brexit and also the role of legal pluralism or entanglement in the management of a cross-border postcolonial situation.
14.2 Northern/Ireland as Colony
There is by now a well-established tradition of postcolonial studies in Irish literature, cultural studies and historiography.Footnote 12 This is despite some resistance to attempts to place Ireland in the postcolonial world arising from its location in Western Europe and its constitutional integration with the United Kingdom in the nineteenth century.Footnote 13 Certainly, neither Ireland’s necessary exposure to and experience in processes of Western European modernization and capitalist development nor the role of Ireland and Irish people in processes of British (and other) imperial projects should be overlooked.Footnote 14 However, it remains the case that Ireland’s position for much of its history was as a colony in a position of economic and political subjugation to England and later within the United Kingdom, an experience which profoundly marked the economic, social and cultural development of the state up to the present day.Footnote 15
As put by Engels ‘Ireland may be regarded as the first English colony’.Footnote 16 It formed part of the first wave of North Atlantic colonization undertaken by Spain and England and other European states in the early modern period.Footnote 17 Early Norman invasion in the twelfth century led to a sporadic and only partially successful conquest of the island. Norman lords coexisted with local Gaelic lords and partially assimilated to the local culture; control by the English crown was limited. This group of ‘Old English’, remaining Catholic and involved in a number of rebellions against the English crown, was eventually displaced by the New English after the English Reformation and subsequent wars.Footnote 18 A more comprehensive conquest and assertion of control over the island took place in the seventeenth century during a number of wars, key amongst them the Cromwellian war.Footnote 19 A colonial project of settlement (‘plantations’) led to displacement and anglicization. The most successful of these plantation projects took place in the northern province of Ulster with large-scale migration of Protestants from England and Scotland.Footnote 20 A substantial community formed along distinct cultural, religious and linguistic lines, separate from the majority Gaelic community, which remained Catholic and Irish speaking until the mid-nineteenth century. In line with its position as a colony, the economy of Ireland tended to develop to complement and service rather than compete with the metropole.Footnote 21 Its economy remained largely agricultural with the exception of the Protestant-dominated north-east of the island, which participated in the industrial revolution of the nineteenth century, developing strong links with the industrial cities of northern England and Scotland. This divergence in economic trajectories also contributed to the economic and social distinctiveness of the north-eastern part of the island, with resulting effects on the distinctive identity of the region.Footnote 22
The result was the creation of a mixed settler colony in most of the island,Footnote 23 with assimilation and anglicization of the local population. The Catholic Gaelic population remained a significant and disenfranchised majority. Rapid introduction of Ireland into the North Atlantic capitalist world in the seventeenth and eighteenth centuries and the elimination or incorporation of the local elite, created a particular socio-economic structure, with a small, Protestant minority owning large estates, worked by impoverished peasant tenants.Footnote 24 In the north-eastern part of the island the situation was different. While a substantial population of indigenous people remained, this coexisted alongside a large and rooted community of Protestants with an English and Scottish background. This community had a distinct identity, a central part of which included an affiliation with the metropole, expressed in loyalism to the British state and a desire to maintain the union with the United Kingdom.Footnote 25 As a consequence, when Ireland secured its independence following a rebellion and War of Independence in the 1920s, part of the settlement provided that six counties in the north-east of the island could exercise an option to separate from this new state and remain part of the United Kingdom, an option they exercised in 1922, leading to the creation of two political entities on the island: the Irish Free State, later to become the Republic of Ireland, and Northern Ireland, a self-governing unit within the United Kingdom.Footnote 26 Partition of the island, along with other compromises, was deeply controversial within the Irish independence movement and contributed to a short but bitter civil war.
Northern Ireland was created with the goal of securing as large a territorial and economic unit as possible in order to ensure its viability while at the same time ensuring that this unit would retain a Protestant majority.Footnote 27 The Catholic minority found itself in an economically, socially and politically disadvantaged situation and experienced significant forms of discrimination.Footnote 28 Inspired by civil rights movements in the US, Irish Catholics organized politically in the 1960s to demand equal treatment and the reform of political processes.Footnote 29 Violent suppression of these social movements combined with inter-communal tensions and more militant tendencies in the Irish nationalist movement gave rise to a thirty-year period of terrorism and violent social unrest in Northern Ireland, a period known as ‘the Troubles’.Footnote 30 After a number of failed attempts at political settlement, a peace process was successfully launched in the 1990s and culminated in the signing of the Belfast/Good Friday Agreement in 1998.Footnote 31 The agreement has been amended a number of times and the peace process remains ongoing. Nonetheless, it remains the basis for the constitutional settlement of Northern Ireland and to date there has not been a widespread recurrence of political violence.
14.3 The Belfast/Good Friday Agreement and the Role of the European Union
14.3.1 The Belfast/Good Friday Agreement.
The Belfast/Good Friday Agreement consists of three strands, in an attempt to manage internal divisions in Northern Ireland, secure the rights of both communities as well as address the broader ‘constitutional question’ and Northern Ireland’s relationship with the Republic of Ireland and the rest of the United Kingdom.Footnote 32 The first strand deals with issues internal to Northern Ireland. This established a devolved assembly and government with a power-sharing arrangement based on the d’Hondt model, in effect a consociational system of government ensuring that both communities are represented in the Northern Ireland Executive (the regional, ‘devolved’ government).Footnote 33 Provisions were also included relating to policing reform and rights guarantees to address the concerns of the minority nationalist community.Footnote 34
The second strand deals with the ‘North–South’ relationship that is between Northern Ireland and the Republic of Ireland.Footnote 35 This established a number of bodies, foremost of which is the North–South Ministerial Council, bringing together ministers from both jurisdictions. Also included in the North–South dimension of the agreement are a set of implementation bodies managing implementation of joint action in a number of areas where cross-border cooperation would be useful, such as energy or tourism.Footnote 36 The North–South strand therefore has a political/symbolic and also functional dimension, giving some expression to the need to promote all-Ireland cooperation and indeed some embryonic form of a thicker political relationship between Northern Ireland and the Republic of Ireland while also having more practical, functional elements in specific policy fields.
Partially to address unionist sensibilities in the face of these North–South bodies, the Belfast/Good Friday Agreement also contained an East–West strand, managing the relationship between Ireland as a whole and the United Kingdom, including devolved governments as well as other political entities in the archipelago.Footnote 37 It consists of two bodies: a British–Irish Council and a British–Irish Intergovernmental Conference. The British–Irish Council is composed of parliamentary representatives from the various political entities in the British–Irish archipelago, namely the Irish and UK governments, the devolved governments of Wales, Scotland and Northern Ireland and representatives from the UK’s dependencies in the area, in particular the Isle of Man and the Channel Islands. The British–Irish Intergovernmental Conference consists of representatives at ministerial or prime ministerial level. While both the British–Irish Council and the British–Irish Intergovernmental Conference met infrequently and fell into abeyance for some time, their value has been recognized in the post-Brexit context where representatives of the British and Irish governments and officials will no longer meet at EU fora.
A compromise on the constitutional question resulted in the enshrinement of the so-called principle of consent. Northern Ireland’s constitutional status would only change with the wishes of a majority of its population as determined by a referendum.Footnote 38 The acceptance of this principle constituted an important concession for both the nationalist community and the Irish state, accepting as it does the legitimacy of Northern Ireland as a political unit and the partition of the island.Footnote 39 At the same time, it committed the United Kingdom under an international treaty to change the constitutional status of Northern Ireland in appropriate circumstances. This, alongside the institutionalization of opportunities for the Irish government to have input into governance questions relating to Northern Ireland in the British–Irish Intergovernmental Conference and its role as shared guarantor (alongside the UK government) of the Belfast/Good Friday Agreement, led to a nuancing of the question of sovereignty over Northern Ireland, away from an absolutist conception towards something more ambiguous. Related to these broader questions and further crystallizing Northern Ireland’s liminal constitutional status, was a commitment that individuals born in Northern Ireland would be entitled to identify as British, Irish or both and acquire the citizenship of either or both states.Footnote 40
14.3.2 The Role of the European Union.
The European Union and European Union law did not feature strongly in the text of the agreement, being mentioned only in relation to some aspects of North–South cooperation where fields governed by EU law were implicated.Footnote 41 The European Union provided some assistance, particularly on the question of financial aid for peace-building initiatives, in particular through the PEACE initiative, but was neither a party to the negotiations (unlike the key role played by the United States government in brokering the agreement) nor a guarantor of the agreement alongside the British and Irish governments.Footnote 42 Nonetheless, the role of joint EU membership of both the UK and Ireland was crucial, if underappreciated, to the successful development of the peace process in a number of ways.
Firstly, joint EU membership provided a key context for the maturing of the relationship between the UK and Ireland from asymmetrical dependence into one of equal and close partners.Footnote 43 European Union membership developed Ireland economically, providing the opportunity to diversify its economy away from the dependence on the UK market. Ireland’s economy had historically developed in order to service rather than compete with the metropole. The result was an economy based on agricultural exports, the main market for which was overwhelmingly the United Kingdom. European Union membership allowed Ireland to develop its industrial sector and diversify its trade. This is particularly the case after the 1990s when large multinational companies developed thriving technology and pharmaceutical industries, attracted in part by Ireland’s English-speaking workforce and access to the European market.
Meeting regularly as sovereign equals within the context of joint membership also underlined the formally equal nature of the two states, maturing a relationship which had been distinctly asymmetrical in the decades immediately after Irish independence.Footnote 44 Ireland was both a former colony and the much smaller and weaker state, economically and politically. As noted above, it was also heavily dependent on the UK as its main export market, a dependence which was not mutual. On a more practical level,
[j]oint membership of the European Union provided British and Irish ministers and officials with a forum for continuing contact across a whole range of public policy issues. EU meetings, particularly at the European Council, provided British and Irish prime ministers with an informal arena to discuss Northern Ireland at the margins of EU deliberations. Such bilateral meetings … provided an important opportunity for relationship building between the heads of government. Opportunities for informal contact meant that even when Anglo-Irish relations were at a low ebb, there was not a complete breakdown in communications.Footnote 45
The broader nature of the European Union as a post-sovereign entity, framing relationships between sovereign states in new ways and facilitating cross-border cooperation and interaction also provided an important context and model for the peace process. The ‘messianic’ mission of the European Union as a peace project and its attempt to bring together previously antagonistic states, indeed mortal enemies, did not escape some participants in the peace process.Footnote 46 That it did so by both attenuating the sharp edges of sovereignty and by encouraging transnational economic and social connections was also noted.Footnote 47
More concretely, the embedding of both Ireland and the United Kingdom (including Northern Ireland) within the broader economic structures of the European Union, especially after the completion of the single market and the abolition of customs checks, facilitated a process by which the border between the two legal jurisdictions, while continuing to exist as a matter of international law, was significantly diminished in importance socially and symbolically.Footnote 48 Customs and security checks had long existed between the two jurisdictions before the implementation of the Belfast/Good Friday Agreement. Security posts at the borders represented a visible and imposing symbol of British presence in Northern Ireland and the distinction between the two jurisdictions. They, alongside more prosaic border checks, were frequently the target of terrorist attacks. Removal of border checks was seen as a key component in the normalization of Northern Ireland’s security situation, the development of communities in the border region and the facilitation of greater cross-border cooperation.Footnote 49
There was also an important symbolic dimension to the removal of the border which could be understood as an integral part of the North–South strand of the Belfast/Good Friday Agreement. Different legal frameworks combined not just to remove the border but to allow the island of Ireland to be considered a single economic and social space, thereby facilitating the expression of the identity of the nationalist community and indeed the ability of members of that community to plan their lives on an all-Ireland basis.Footnote 50 The Common Travel Area (CTA), an informal arrangement between Ireland and the UK, abolishes border controls on persons between the two jurisdictions and extends rights of residence and equal treatment to United Kingdom and Irish nationals respectively.Footnote 51 The customs union and single market allow the same thing with respect to goods and economic life. Customs and regulatory checks with respect to goods are no longer necessary and hence the need for a physical border for goods disappears. The operation of the single market in all its regulatory and institutional complexity, allows economic actors to operate across borders with a great degree of freedom, developing supply chains and penetrating markets but also receiving services (including health and education) and engaging in employment. In short, the absence of a physical border and the opportunities for cross-border life facilitated by the internal market and the customs union (amongst other elements of EU law), combined with the CTA, created the conditions for Northern Ireland and Ireland to be treated as a single economic and social space and thus gave expression to the nationalist community’s aspiration to identify with the rest of Ireland in a concrete and meaningful way.
It is worth pausing to note the mixture of both the ‘high constitutional politics’ and the more mundane functionalist operation of a single market and customs union in the contribution of the EU to the peace process in Northern Ireland. The maturing of the relationship between Ireland and the United Kingdom within the context of the European Union and its predecessors was certainly key, as was the opportunity afforded by frequent meetings and the development of ongoing relations between politicians and senior officials. Likewise, the ‘post-sovereigntist’ hue to constitutional politics within the European Union certainly provided an alternative to the otherwise binary, mutually incompatible constitutional aspirations of the two communities. However, peace processes are not built on high constitutional and political rhetoric alone but demand the transformation of concrete, tangible conditions on the ground. The effective elimination of the border by the operation of mundane, functional single market legislation and the completion of the customs union had important symbolic effects and normalized the situation between the two jurisdictions. It also diminished the significance of the border for the purposes of daily life and for politics more generally. In some ways it harks back to the original Monnet method: functionalism and the facilitation of cross-border economic and social activities in the service of peace.
14.4 Challenges Posed by Brexit
Brexit posed a significant challenge for the peace settlement in Northern Ireland, particularly when the United Kingdom opted for a so-called ‘hard Brexit’, withdrawing from the customs union and the internal market. Withdrawal from the customs union and the internal market would necessarily mean the introduction of customs and regulatory checks between the United Kingdom and the European Union. Installing these on the border between Ireland and Northern Ireland would pose a number of practical, security and broader political risks. On a practical level, the nature of the border would make it extremely difficult to police. It would also pose difficulties for individuals and communities in the border area, many of whom engage in multiple border crossings in a single day, living in one jurisdiction and working or attending school in another.Footnote 52 This would be particularly the case if (in light of the large number of border crossings), the number of official border crossings was reduced and minor crossings closed. A number of commentators raised the possibility of new border installations being a target for remaining dissident republican terrorist organizations, a process which risked escalation with increasing securitization and even militarization of border crossings in response to security threats.Footnote 53 It is difficult to overstate the symbolic importance and potential for political destabilization of large-scale military installations in a post-conflict society such as Northern Ireland. Finally, the reinstatement of a physical border would undermine the North–South dimension of the Belfast/Good Friday Agreement, which depended on the diminishment of the border as a practical and hence political reality resulting from the joint embedding of Ireland and Northern Ireland in the European Union’s single market and customs union.
Ensuring the absence of a physical border was quickly identified as a priority for the Irish government within its broader response to Brexit, alongside securing as close a relationship as possible between the UK and the European Union in order to diminish the economic impact of Brexit on Ireland.Footnote 54 A deliberate choice was made by Ireland to align itself closely with the European Union, underlining its position as a Member State rather than as an ‘intermediary’ between the UK and the EU. Ireland launched an impressive diplomatic effort, engaging intensely both with the Union institutions and national capitals in order to press upon European decision-makers and fellow Member States the importance of the border issue to the peace process and to ensure that it would form part of the Union’s objectives in the first stage of the Brexit negotiations, that is in the context of the Withdrawal Agreement rather than the future relationship. This last point was key in ensuring that the border question was dealt with at the stage where the European Union had most leverage and also to ensure that the border would not be the subject of wider trade-offs in the context of negotiating the future relationship. In its diplomatic efforts to frame the issue for European partners and ensure that it was treated within the first phase of the negotiations, Ireland was entirely successful. This was achieved by the impressive efforts made by the Irish foreign service and its ‘first mover advantage’, facilitated by its preparation in advance of Brexit and the absence of similar preparation on the part of the United Kingdom.Footnote 55
The Brexit negotiations were long and tortuous, involving two British prime ministers, a number of extensions to the Article 50 Treaty on the Functioning of the European Union (TFEU) timeline and two agreements, one failed and one ultimately successful.Footnote 56 It resulted in the Protocol as an integral part of the Withdrawal Agreement concluded between the EU and the UK at the end of January 2020.Footnote 57 The necessity for the Protocol arose from the choices made by the United Kingdom during the Brexit negotiations. It became increasingly clear that Prime Minister Theresa May’s originally vacuous phrase ‘Brexit means Brexit’ in fact meant withdrawal from the customs union and internal market. This was a logical consequence of the UK’s goal to enjoy independent trade and regulatory policies following withdrawal and its refusal to be subject to the jurisdiction of the Court of Justice of the European Union (CJEU or Court of Justice).
With respect to the UK’s only land border with the EU, Theresa May made three promises which were impossible to keep at the same time. Firstly, she promised Eurosceptics in her own political party – the Conservative Party – to withdraw from the internal market and customs union. Secondly, she promised the Irish government and the European Union that there would be no hard border between Ireland and Northern Ireland. Indeed this promise was elevated to a somewhat formal status in a Joint Report published by the European Commission and the UK in December 2017, confirming the broad outline of agreements on the Withdrawal Agreement and allowing the opening of discussions on the future relationship.Footnote 58 Finally, Theresa May promised the unionist community in Northern Ireland and in particular its largest party, the Democratic Unionist Party (DUP), that there would be no ‘new borders’ between Northern Ireland and Great Britain and that Northern Ireland’s constitutional position within the United Kingdom would be maintained and that the entire United Kingdom – including Northern Ireland – would leave both the internal market and customs union.Footnote 59 This created what became known as the Brexit Trilemma. May had made three promises. She could keep any two of these but not all three. The UK as a whole could withdraw from the customs union and single market with no new border between Northern Ireland and Great Britain but this would entail a border between Northern Ireland and Ireland. It could also withdraw from the customs union and single market but keep Northern Ireland within the customs union and single market. This would have the benefit of ensuring that there would be no hard border between Northern Ireland and Ireland but would necessitate border checks between Northern Ireland and Great Britain. Finally, the UK could ensure no new borders between Northern Ireland and Ireland and between Northern Ireland and Great Britain but only by remaining as a whole within the customs union and single market. At least one promise would have to be broken.
May’s response was a compromise. The preferred solution would be for the border issue to be dealt with in the future relationship. If, however, the future relationship did not result in a situation where there was no need for a border between Ireland and Northern Ireland, a ‘backstop’ solution would kick in. In such a situation some internal market rules would continue to apply in Northern Ireland alongside appropriate jurisdiction for the Court of Justice while the United Kingdom as a whole would effectively remain within the customs union. This arrangement would remain in place until alternative arrangements (presumably based on technological innovations) would allow withdrawal from the customs union. This solution would eliminate the need for customs checks between Northern Ireland and Great Britain leaving minimal regulatory checks and would also ensure the absence of a hard border between Ireland and Northern Ireland. While the UK would leave the single market, it would not do so as a single unit and would (in the event the backstop was triggered) remain within the customs union. Unfortunately, May’s compromise was too much of a compromise. It was unacceptable to the DUP and, taking their lead from the DUP, the Eurosceptic wing of the Conservative Party. Given May’s weak political position, defeat was inevitable. Her version of the Withdrawal Agreement was defeated three times in Parliament and she resigned to be replaced by Boris Johnson.Footnote 60
14.5 The ‘Solution’: The Ireland/Northern Ireland Protocol
In an effort to break the political deadlock Boris Johnson renegotiated the Protocol changing the ‘backstop’ to a ‘frontstop’, applicable regardless of the outcome of the future relationship. Significant parts of internal market legislation, particularly as it applies to goods, would apply to Northern Ireland along with jurisdiction for the Court of Justice. Northern Ireland would remain within the customs territory of the United Kingdom, but goods at risk of onward movement to Ireland and hence the EU’s internal market, would be subject to the customs code of the European Union. The result was effectively the breaking of the promise made by Theresa May to the DUP: a border in the Irish sea would be necessary in order to ensure regulatory checks and some customs checks. After a number of failed attempts to gain approval for his renegotiated Withdrawal Agreement, Boris Johnson dissolved Parliament, calling a general election in which he won a considerable majority.Footnote 61 No longer reliant on the votes of the DUP, Johnson ratified the Withdrawal Agreement and legislated for Brexit generally and for the Protocol in particular with the adoption of the Withdrawal Agreement Act 2020.Footnote 62
This however was not the end of the story. The Protocol should have come into effect on 31 December 2020 with the end of the transition period.Footnote 63 However, problems with implementation combined with resistance from the unionist community resulted in the UK unilaterally deciding not to apply key provisions throughout 2022 and seeking to renegotiate the Protocol.Footnote 64 While unwilling to reopen the text of the Protocol as such, the EU did negotiate with the UK on its implementation, resulting in the adoption of the ‘Windsor Framework’.Footnote 65 The Windsor Framework is not a radical overhaul of the Protocol and is mainly concerned with the implementation of the provisions on the movement of goods. There is one change to the text of the Protocol, introducing a new ‘Stormont Brake’ (discussed further below). Nonetheless, the Windsor Framework does ‘provide for a significant reworking of the Protocol’ with de minimis rules for its application and the disapplication of some substantive rules (particularly on sanitary and phytosanitary requirements).Footnote 66
The main body of the Protocol is a relatively short document, with a total of eight Articles. Its short nature is deceptive. Various provisions of the Protocol refer to annexes, which themselves contain references to hundreds of pieces of Union legislation to be applied to Northern Ireland. To simplify a very complex legal arrangement, the Protocol ensures that Northern Ireland remains in the single market for goods and de facto within the customs union. While quite technical in places, some provisions of the Protocol and especially its recitals do emphasize its broader role in trying to maintain the conditions for the continued operation of the Belfast/Good Friday Agreement and the wider set of relations between Ireland, Northern Ireland and the rest of the UK.Footnote 67
14.5.1 EU Law Applicable in Northern Ireland.
While most focus has understandably been on the operation of the provisions of the Protocol relevant to the movement of goods and customs, the Protocol also protects another element of the peace process underpinned by European Union law. The Belfast/Good Friday Agreement contains a number of provisions on the protection of rights in Northern Ireland, committing the UK to be a party to and to implement the European Convention on Human Rights (ECHR) into domestic law with respect to Northern Ireland, establish a number of rights-protecting institutions and more broadly to ensure the non-diminution of rights in Northern Ireland.Footnote 68 A number of these rights derive from European Union law, in particular equality legislation. Article 2 of the Protocol guarantees those rights and institutions. Unlike the provisions on the movement of goods and customs, the commitment of the UK under Article 2 of the Protocol is merely to ensure the non-diminution of rights contained in EU legislation within Annex 1 to the Protocol.Footnote 69 It may replace those provisions with domestic law but in doing so must ensure a comparable level of protection. The CTA is also protected by the Protocol, recalling the essential role the CTA plays – both in its abolition of border controls and in providing for reciprocal free movement and equal treatment rights for UK and Irish nationals – in ensuring the absence of a border and the creation of a broader all-Ireland social and economic space. Article 3 of the Protocol permits the continuation of the CTA between the UK and Ireland and provides that it shall continue ‘without affecting the obligations of Ireland under Union law’, particularly with regard to free movement.Footnote 70
The main body of the Protocol is taken up with arrangements for the free movement of goods in an effort to ensure the absence of a hard border between Ireland and Northern Ireland. To simplify somewhat, this is achieved by ensuring that Northern Ireland remains in the single market for goods and that the EU’s customs code is applicable to Northern Ireland. Complexity is added by the desire of the UK government, with sensitivity to unionist concerns, to ease movement of goods between the rest of the UK and Northern Ireland. The result is that a large body of EU law relating to the single market, referenced in Annex 2 to the Protocol, will apply to Northern Ireland producers. Goods entering Northern Ireland from the rest of the UK or a third state will not have to comply with these regulations which may nonetheless (especially in particular areas such as agriculture and food) entail substantial certification and other regulatory requirements, unless they are at risk of onward movement to the single market or will be processed. Similarly, the customs code will apply to Northern Ireland with respect for goods which are deemed to be at risk of onward movement to the single market.Footnote 71 Criteria for determining which goods are at risk of onward movement are to be drawn up by the EU–UK Joint Committee which manages the implementation of the Withdrawal Agreement. Articles 30 and 110 TFEU shall also be applicable to Northern Ireland and quantitative restrictions prohibited between Northern Ireland and the Union.Footnote 72 Articles 7 to 11 make applicable other areas of EU law, including VAT and excise (Article 8), electricity (Article 9) and state aid (Article 10). Article 7 deals with registrations, assessments, certificates and so on of relevance to the free movement of goods.
14.5.2 Legal Nature of the Protocol.
If the substance of the Protocol, applying significant swathes of EU law to Northern Ireland and containing a cumbersome procedure for differentiating between goods destined for the local market and goods at risk of onward movement, is eye-catching and already complicates Northern Ireland’s legal situation, the governance arrangements and the nature of the law made applicable by the Protocol are also worthy of note. The Protocol is an integral part of the Withdrawal Agreement, which in turn enjoys primacy in UK law by virtue of Article 4 of the Withdrawal Agreement and section 7A of the UK’s Withdrawal Act 2018 (as amended by the UK Withdrawal Agreement Act 2020).Footnote 73 Section 7A replicates the language of the earlier European Communities Act 1972 which provided for direct effect and primacy of EU law within the UK domestic legal system.Footnote 74 All EU law made applicable by the Protocol, including relevant future law (applicable by virtue of ‘dynamic alignment’ i.e. the application of future, relevant EU law in Northern Ireland), thus enjoys direct effect and primacy over UK law. The Charter of Fundamental Rights of the EU will also apply.Footnote 75 It is important to distinguish this from what is known as ‘retained EU law’ in the UK legal system. In order to avoid the creation of large gaps in its legal system on its withdrawal from the EU, the UK effectively replicated the vast majority of EU law in UK domestic law. As a result, there is now a category of ‘retained EU law’ in UK law.Footnote 76 This is UK domestic law rather than EU law, even if the substance remains the same. Its application and interaction with other parts of UK law is subject to various rules of interpretation (including with respect to the case law of the Court of Justice, differentiating between cases decided pre- and post-withdrawal).Footnote 77 Not all EU law was incorporated in this manner, for example the Charter of Fundamental Rights was excluded.Footnote 78 Retained EU law applies in Northern Ireland with respect to those matters which do not fall within the scope of the Protocol. However, the Protocol also ensures that a body of law, also derived from EU law but with a different nature, and enjoying direct effect, primacy and dynamic alignment and bringing into play the Charter of Fundamental Rights, applies in Northern Ireland. Note should also be taken of the application of law derived from the Withdrawal Agreement proper, in particular provisions relating to citizens’ rights, which have their own institutional arrangements.Footnote 79
14.5.3 Implementation, Enforcement and Governance of the Protocol.
The single market does not just consist of a set of rules but operates as part of a wider legal ‘ecosystem’ including institutions and processes for monitoring and enforcement which in turn underpin the operation of mutual trust so central to the operation of EU law. While the practical operation of the Protocol will be implemented by UK officials, there are provisions relating to data sharing with the Commission and the possibility of on-site inspections by the Commission.Footnote 80 The Protocol also extends the jurisdiction of EU institutions to supervise and enforce the application of relevant EU law in Northern Ireland, including infringement proceedings. The judgment of the Court of Justice in Commission v. United Kingdom, fining the UK for failures in relation to fuel marking, is an indication that these provisions will bite.Footnote 81 Importantly, the Court of Justice found that, with respect to Northern Ireland, the infringement continued after the transition period (when EU law ceased to apply to the rest of the UK) by virtue of the operation of the Protocol and that moreover the fine for this element of the infringement should be calculated with reference not to the GDP of Northern Ireland but by reference to the GDP of the UK as a whole, in order to ensure adequate deterrence.Footnote 82
Article 12 of the Protocol also provides that the courts of the United Kingdom shall have the ability and in some cases the obligation to make a preliminary reference to the Court of Justice. In practice this will principally mean the courts of Northern Ireland. However, Article 12 of the Protocol is not limited to the courts of Northern Ireland and given that the UK Supreme Court will in certain circumstances be a court of final instance for matters falling within the scope of the Protocol, the obligation to make a preliminary reference under the third paragraph of Article 267 TFEU may fall on that court.Footnote 83 That this may have some impact is illustrated by the judgment of the Court of Justice in Commission v. UK, finding an infringement on the part of the UK as a consequence of the failure of the UK Supreme Court to refer an issue of European Union law on arbitration to the Court of Justice under Article 267 TFEU.Footnote 84
Governance of the Protocol falls to a set of committees established under the Withdrawal Agreement and the Protocol. The general Joint Committee, established under the Withdrawal Agreement, is the ultimate decision-making authority for the Protocol and is also the forum where sensitive matters such as ongoing alignment and possible safeguarding measures are discussed.Footnote 85 This is assisted by a Specialised Committee, concerned with the implementation of the Protocol and a Joint Consultative Working Group for gathering and exchanging information and assisting the Specialised Committee.Footnote 86 There is a safeguard clause contained in Article 16 of the Protocol, the use of which was already threatened by the UK during the initial period of the Protocol’s application.Footnote 87 Finally, there are important but complex democratic safeguards. New EU legislation in the context of dynamic alignment is to be incorporated in the Protocol by a decision of the Joint Committee. This requires the agreement of the UK government. If agreement is not forthcoming, then remedial measures may be taken by the EU. This procedure, contained in Article 13 of the Protocol, was supplemented by a new provision, with a view to increasing the democratic credentials of the Protocol as part of the Windsor Framework.Footnote 88 The new Article 13(3)(a) allows a group of members of Northern Ireland’s devolved legislative assembly (the ‘Stormont Assembly’) to request that the UK government trigger what is now known as the ‘Stormont Brake’, not applying new EU law to Northern Ireland in the event that the measure will have ‘“significant impact” for everyday life in Northern Ireland’.Footnote 89 As with the original procedure under Article 13(4) of the Protocol, in the event that the new measure is not applied to Northern Ireland, the Union may adopt remedial measures. Both the use of the ‘brake’ and any remedial measures shall be subject to the dispute resolution mechanisms under the Withdrawal Agreement, including arbitration.Footnote 90
14.6 Conclusion: Constitutional Entanglements in a Postcolonial Space
To say that the Protocol is a complex piece of legal engineering is an understatement. Placed alongside the already considerable particularities of Northern Ireland’s legal system it gives rise to not simply legal entanglement but arguably constitutional entanglement. This perhaps is inevitable to some extent and reflects the underlying historical position of Northern Ireland as a postcolonial entity and the social, political and identarian legacies of that position, in particular with two communities, with different political traditions and identifying with different bordering states. It is in the words of Brennan a quintessential ‘liminal space’.Footnote 91 The effects of this ‘liminality’ or in-betweenness was diminished in the context of joint membership of the European Union and especially its single market. This chapter has sought to trace how, in combination with the operation of the CTA, the importance of the border between Northern Ireland and Ireland was minimized both symbolically and practically. Largely unacknowledged, transnational legal frameworks, allowing for social and economic interactions, were key in facilitating a peace process in a postcolonial society of different political communities where one community identified with a neighbouring state. The Protocol is necessarily an imperfect substitute for joint membership of the EU. It has also complicated even further the ‘entangled nature’ of Northern Ireland’s law and arguably the entangled nature of its constitutional position.
Legal entanglement, defined by Krisch as a ‘situation in which law is constituted by the ways in which norms from different origins are linked with one another without being integrated into a common order’, is related to legal pluralism but emphasizes the absence of any systemic quality.Footnote 92 This chapter reveals that Northern Ireland now certainly experiences a situation where ‘norms from different origins’ apply ‘without being integrated into a common order’. After the withdrawal of the UK from the EU and the entry into force of the Protocol we now find applicable in Northern Ireland: ordinary UK law; retained EU law (not subject to ongoing legislative or interpretative alignment, and enjoying modified primacy); EU law derived from the Protocol (subject to ongoing legislative and interpretative alignment and enjoying direct effect and primacy); the shadow of the (soft-law) CTA governing reciprocal treatment of Irish and UK nationals; law from the devolved Stormont Assembly; rules flowing from the Belfast/Good Friday Agreement; and finally, the ECHR, in turn enjoying a particular status by virtue of the Belfast/Good Friday Agreement. All of these are simply the sources of public law in Northern Ireland’s unique constitutional position; presumably we must add to these other forms of international and transnational law, including private sources of norms and regulations.Footnote 93
But the entanglement of Northern Ireland law is not limited to varied sources of law, or rather a focus on the multiplicity of the different bodies of law alone does not capture the full picture. For it is arguable that Northern Ireland also experiences, particularly post-Brexit, considerable constitutional entanglement in the sense that there are multiple sites of legal authority operating in Northern Ireland, not always operating within the confines of a single system, nor perhaps particularly well integrated. Northern Ireland is of course first and foremost subject to the sovereign authority of the Westminster Parliament. And yet, while the basic fact of Northern Ireland’s constitutional position in the United Kingdom is unchanged and is in fact confirmed (and provides the basis for) the Belfast/Good Friday Agreement, it has also been pointed out that the Belfast/Good Friday Agreement is to some extent a constitutional charter for Northern Ireland and the Northern Ireland Act 1998 a quasi-constitutional statute, thereby limiting to some extent the core constitutional principle of the UK, namely the sovereignty of the king in Parliament.Footnote 94 As part of this, Northern Ireland now enjoys a legislative assembly and executive (albeit increasingly suspended amid political dysfunction) as part of an asymmetric quasi-federation. The ECHR and moreover its implementation in domestic law is also mandated by the same agreement which adds the authority of the European Court of Human Rights to the constitutional landscape of Northern Ireland. To this must be added the North–South and East–West institutions of the Belfast/Good Friday Agreement, albeit acknowledging their limited impact in practice and mostly symbolic and diplomatic function (particularly the East–West institutions). The Protocol, in contrast to the rest of the UK, also now involves EU bodies, including the Court of Justice and the Commission, in both the enforcement and application of a body of law in Northern Ireland. The EU also has a legislative function with respect to Northern Ireland in those areas of law covered by the Protocol. The interaction of the developing EU law with Northern Ireland law is then managed by an ‘interface’ institution, created under the Withdrawal Agreement, namely the Joint Committee. Multiple institutions, nested and overlapping, from different constitutional sites, now claim some form of legal authority over Northern Ireland.
It is important to specify exactly what form of legal pluralism this represents. Tamanaha, along with other authors, has identified the use of the language of legal pluralism in three contexts.Footnote 95 It was originally used by legal anthropologists in colonial and postcolonial settings. The language was then exported to the field of legal sociology and was used to reflect a multiplicity of state and non-state normative systems. Finally, it has most recently been used to describe the legal situation arising from increased international and transnational law, including private regulatory systems. The use of legal pluralism here to describe the situation in Northern Ireland falls within the third category. Legal pluralism with respect to (post)colonial situations was characterized by different forms of law. ‘European’ law emanating from the metropole was highly institutionalized and often applied exclusively to particular groups of the population (‘Europeans’). This existed alongside customary and other more socially embedded forms of law with local bodies which were formally institutionalized to a greater or lesser extent.Footnote 96 This pluralism frequently persisted after independence with formal, state law existing alongside more local forms of customary law. The coexistence and interaction between these different systems and forms of law gave rise to instances of legal pluralism.
The multiplicity of law in Northern Ireland today does not represent an instance of postcolonial legal pluralism as it is normally understood. Unlike postcolonial legal pluralism, it is not marked by ‘the stark contrasts and sheer diversity between coexisting bodies of formal and informal law derived from different traditions involving fundamentally different world views’. Rather the laws analysed here ‘are virtually all Western derived and … involve formal written regulatory regimes and tribunals operating in standard ways familiar to jurists’.Footnote 97 The legal pluralism arising in Northern Ireland as a result of Brexit is not a legal pluralism contrasting a formal, state-based system of law with local, customary or less formalized or institutionalized systems of law as is common in postcolonial situations. Rather, it is the application of a somewhat bewildering array of nonetheless formal legal provisions with different institutional origins (UK, Northern Ireland, EU) and with different legal effects and rules of interaction (so-called ‘interface rules’). Unlike legal pluralism in the context of (post)colonial societies, which is characterized by diversity, the legal pluralism of global/transnational law and hence that of Northern Ireland is characterized by multiplicity.Footnote 98
Thus, in form and nature, the legal situation in Northern Ireland is a species of global/transnational legal pluralism familiar to students of European Union law. However, its origins are postcolonial in the sense that it responds to needs arising from a conflict with its origins in a colonial situation. This colonial situation has a distinct cross-border dimension arising from the fact that one of the main communities in Northern Ireland identifies strongly with a neighbouring state as a result of a partition of the island of Ireland during a process of decolonization. Transnational legal pluralism can play a role in facilitating postcolonial conflict resolution, in particular by diminishing the practical and symbolic importance of borders, facilitating the aspirations of different national communities and allowing constitutional questions to recede into the background. European Union law was, unbeknownst to most observers, ideally suited to such a role.
The European Union and EU law engages with colonial concerns in many and varied respects, as analysed in this volume. The foundation of the EU in an era of imperialism and its development in an era characterized by decolonization is clear. It was at least partially a response to this retrenchment on the part of some Member States. The foreign policy and in particular trade policy of the Union was largely shaped by North–South and colonial legacies in the first decades of the Union’s existence.Footnote 99 The wider legacy of some Member States as empires and indeed as colonies also has an impact on some areas of EU law, for example citizenship.Footnote 100 That EU law played a role in managing a postcolonial situation that existed between two Member States is perhaps less acknowledged and was indeed ‘hidden’. Nonetheless, it was a remarkable effect of EU law that it provided a scaffold for a peace process by facilitating cross-border social and economic interactions and softening an otherwise contentious border. But this regional integration requires a certain pluralism of legal sources: an acceptance of common rules, particular effects of those rules and an institutional apparatus to enforce them. The UK has attempted to extract itself from this legal framework without jeopardizing the peace process in Northern Ireland. The result, with the application of law from multiple sources and interacting in a complex manner, is a particularly ‘entangled’ legal reality and yet one which, while intellectually unsatisfying, may nonetheless serve its function of providing a framework for the ongoing peace process.
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