A limited and specific intervention? Brexit is back*

10 September 2020 - by Gráinne Walsh

*though it never really went away.

You know that Brexit is back on the political agenda when Northern Ireland voices return in significant numbers to Radio 4’s Today Programme in the week that has seen the Internal Market Bill introduced in Parliament. From Boris Johnson and Brandon Lewis to Nancy Pelosi and Ursula von der Leyen, the politics and law of this is intriguing.

The well reported comments of Declan Morgan, Lord Chief Justice of Northern Ireland, that the UK government’s actions could undermine the rule of law domestically, follows changes in England and Scotland to Covid restrictions and ahead of expected changes here locally – unfortunate timing indeed.

Just as some took trips with their family to test their eye sight, how many of us will claim that we are breaching restrictions in a “specific and limited way” in days and weeks to come? It’s not the sophisticated political critique of the dispatch box or the broadsheets that undermines confidence in an administration - it’s the ridicule.

With lots of speculation as to the motive and strategy behind the bill, let’s look at the purpose:

  • to make provision in connection with provisions of the Northern Ireland Protocol relating to trade and state aid;
  • to authorise the provision of financial assistance by Ministers of the Crown in connection with economic development, infrastructure, culture, sport and educational or training activities and exchanges;
  • to make regulation of the provision of distortive or harmful subsidies a reserved or excepted matter; and for connected purposes.

Part 5 deals with the Northern Ireland Protocol, where

  • There is reference to annulling provision in NI Protocol that says EU law, not UK domestic law, underpins the state aid rules, with Ministers having power to determine regulations on state aid.
  • On exit declarations, it notes a Minister will have power to "make provision about the application of exit procedures to goods, or a description of goods when moving from NI to GB.” 
  • There is also reference to Ministers having a right to amend list of goods enjoying unfettered access under the Protocol.

Negotiation positioning or technical legal fix, whatever this turns out to be, the team here in Stratagem have been supporting organisations to interpret, plan and act in this highly complex and high stakes policy arena since long before the referendum. 

The addition of Covid, only increases all our needs for clear thinking and informed decision making. As we call spend more time with the BBC’s John Campbell and RTÉ’s Tony Connolly, we can also look forward to spending more time with Arlene Foster and Michelle O’Neill.

With speculation about the return of joint FM and dFM briefings, we are beginning to see the re-emergence of a united political front locally on Covid, at least. It may be some time, if ever before we see that on Brexit.