Brexit: what’s next for the protocol Bill and ‘bonfire’ of EU rules?

The Bill aims to provide durable solutions in four key areas:

• Green and red channels to remove unnecessary costs and paperwork for businesses trading within the UK, while ensuring full checks are done for goods entering the EU.
• A dual regulatory model allowing manufacturers the choice of following UK or EU goods rules.
• A return to a single UK-wide tax area, including on VAT.
• The removal of the European Court of Justice in disputes.

While the Bill would allow the government to amend the Protocol, it does not immediately or automatically do so.

EU Ambassador to the UK Joao Vale de Almeida said the UK’s unilateral strategy was a “road to nowhere” and Irish Taoiseach said Mr Martin said, “one cannot trivialise the breaching of an international agreement between the United Kingdom Government and the European Union”.

As forewarned, the European Union has launched four legal actions relating to an alleged failure to provide the EU with data about exports from Northern Ireland to Great Britain, and implement agreed EU customs, VAT and alcohol excise rules. These legal steps could lead to the UK being fined under a dispute process overseen by the European Court of Justice.

The ongoing disputes around the Protocol continue to hold up wider initiatives. The financial services Memorandum of Understanding agreed in March 2021 remains inactive. The Horizon Europe research fund looks set to be another target, with the European Commission refusing to confirm the UK’s participation in the €95 billion programme until the Protocol issues are resolved.

The Unionist community in Northern Ireland is steadfastly against the implementation of the Protocol in its current form, with the DUP refusing to engage with any power-sharing arrangement with Sinn Fein until it is “substantially” altered. The UK Government hopes that by bringing forward legislation to reform the Protocol, the DUP can be brought back to the negotiating table to form an Executive at Stormont. To date, the DUP has not been won over though. The party’s leader Sir Jeffrey Donaldson said: “We will consider what happens in the legislative process, but at this stage we haven’t come to a view as to when the institutions might be restored”.

However, a majority of members of the Legislative Assembly (MLAs) support the Protocol’s implementation and reject the UK Government’s unilateral move. 52 of the 90 members of Northern Ireland’s Assembly wrote to the Prime Minister saying that the Northern Ireland Protocol Bill “flies in the face” of voters and businesses in the region.

• House of Lords second reading (Autumn 2022).
• New Prime Minister to be announced (5 September 2022).
• New elections triggered if Northern Ireland is without an Executive (22 October 2022).

1. How was the UK’s regulatory autonomy constrained when it was an EU Member State?
2. After Brexit, how can the UK now regulate differently?
3. How is the government regulating differently since EU exit and how could the process of doing so be most effectively undertaken?
4. What restrictions are there on the UK’s regulatory autonomy as a result of commitments in the UK/EU Withdrawal Agreement and the UK/EU Trade and Cooperation Agreement?
   1. How might divergence in certain policy areas have practical consequences for the UK’s wider relationship with the EU?
5. How might Common Frameworks—introduced by the government to ensure a common UK approach is taken where powers have returned from the EU which intersect with policy areas of devolved competence—affect the government’s ability to regulate differently after EU exit?
6. What wider obligations—flowing from new UK free trade agreements—might affect the government’s ability to regulate differently after EU exit?
7. In which sectors is the UK well placed to maximise the opportunities afforded by its newfound regulatory autonomy and, conversely, in which areas might diverging from the EU prove more challenging?
8. Of the priority sectors highlighted by the Committee (agriculture, data and financial services), where and how should the UK diverge from EU rules?
   1. Are there any specific examples of retained EU law that should be kept or revoked and/or replaced?
   2. What are the likely cost and resource implications of divergence and how can these be effectively managed?
9. Should the government adopt a particular approach to regulating in areas previously governed by EU rules?
   • Should priority be given to forms of governance like legislation or should other methods like self-regulation be pursued?

Brexit opportunities minister Jacob Rees-Mogg planned to publish the Brexit Freedoms Bill this summer, but in light of Boris Johnson’s departure, key elements of the government’s legislative agenda initiated under his leadership, including the Brexit Freedoms Bill, are now in doubt.

If and when the Bill is published, considering the UK joined the EU on 1 January 1973, the process of untangling EU and UK law is likely to be both time consuming and complicated. This process may also bring the government into difficulties in relation to Scotland and indeed Northern Ireland. However, until the Brexit Freedoms Bill comes into force, the position in relation to REUL is unlikely to change.