Long(ish)🧵on NI Protocol. No point trying to comment on Internal Market Bill until we see it, but some of the commentary about the Withdrawal Agreement & NI Protocol I have seen suggests there are misconceptions about what the UK & EU have already signed up to & what can change
The WA is a treaty that has been ratified by both sides & mostly comes into force in January 2020, but some (small) parts are in force already. While the future relationship agreement (FRA)may build on/align with parts of it, it will stand deal or no deal. It’s not temporary.
WA contained things such as the exit bill, citizens rights & dispute mechanisms/governance that are not going to be changed by the FRA (Or v v unlikely to) These were things the EU in particular wanted to settle before FRA negotiations so they wouldn’t be ‘on the table’.
Indeed citizens rights is one area of WA that can’t be suspended by either party in retaliation for breaches of the Agreement (there’s a few more dispute hoops to go through before it reaches this stage) but point is- this Agreement was built to last. Now to the NI Protocol...
Previous versions of the NI Protocol -negotiated under the May Government- were set up as a ‘backstop’ so called as it was a fail safe to ensure border would stay open, but the backstop would be replaced in large part by a FRA. This is NOT the case with the Protocol today.
Protocol today- in the ratified & part in force WA- is largely ‘set in stone’. There are two areas that can change. One- parts covering trade in goods, VAT & state aid- can lapse only if NI Assembly votes it down (1st opportunity in Jan 2025)EU & UK have a year 2 find a solution
Two- a few aspects of Protocol have details to iron out, for example what goods going from GB to NI will be considered ‘at risk’ & potentially subject to tariffs/greater inspection. Full details available in our paper here commonslibrary.parliament.uk/research-brief…
Other parts of Protocol - on individual rights, Common Travel Area, governance remain regardless of consent of NI. The current Protocol DOES contain a clause 13(8) saying any new agreement between EU & UK should indicate what parts, if any; of the Protocol it would replace...
BUT can you spot a key extra clause that went with it in the original protocol (on the left) vs the new one (on the right) The goal now isn’t to conclude an agreement to replace the Protocol. This is reinforced by the other key difference in Article 1- the objectives. 
Article 1 of the Protocol in its original form (on the left again) vs the new one (on the right). The concept/objective of having a temporary set of arrangements while we negotiate a permanent solution has gone. Discussions on implementing the Protocol may, in political terms..
Become ‘bundled up’ with FRA negotiations. And this may impact discussions on political level. But legal duties haven’t. All treaties can be changed of course, if all parties agree. But the status quo is the WA & NI Protocol with all their obligations remain. Much more to say..
About interaction of domestic legislation and international treaties and the fact that the implementation of the Protocol is the task of the UK Government, but will save that until we see what the Bill contains. ENDS.
This should be January 2021! D’oh!
