NIHRC and ECNI Briefing on the Protocol Bill
Date produced October 2022
Below is a summary of the recommendations:
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3.5 The Commissions recommend that Clause 20 be amended to ensure that it does not impact on the duty, under Protocol Article 13(2), on domestic courts and tribunals to interpret EU law relevant to Protocol Article 2 in conformity with the relevant case law of the CJEU.
3.8 The Commissions recommend that Clause 13 be amended to make clear that subsection 1 does not restrict the role of the CJEU where it is asked to give a ruling under Article 174 of the Withdrawal Agreement (Disputes raising questions of Union law), relating to the interpretation of EU law relevant to Protocol Article 2.
3.14 The Commissions recommend that Clause 15(3) be amended to supplement the restriction preventing Ministers from designating Protocol Article 2 as excluded provision, to ensure that Ministers are also prevented from designating as excluded provision, any provision of the Withdrawal Agreement or Protocol insofar as it affects the interpretation, implementation and/or enforcement of Protocol Article 2
3.19 The Commissions recommend that the Bill be amended to make clear that a Minister’s powers under Clause 14(4), or any other Clause of the Bill, do not extend to taking any action that weakens the interpretation, implementation or enforcement of Protocol Article 2, either by excluding provisions of the Protocol or Withdrawal Agreement insofar as they relate to Protocol Article 2, or by any other exercise of delegated powers under the Bill.
4.2 The Commissions recommend that compliance with Protocol Article 2 be considered from the earliest stages in the development of policy and legislation.
4.3 The Commissions recommend that the UK Government and NI Executive ensure that Explanatory Memoranda on draft UK and NI legislative proposals that are likely to engage Protocol Article 2 set out what consideration has been given to ensuring conformity with Protocol Article 2.
4.4 The Commissions recommend that peers ask the UK Government to set out, in detail, what consideration was given to compliance with Protocol Article 2 in the context of the Protocol Bill; and recommend that Article 2 should be considered and complied with throughout its implementation and the development of regulations and guidance.