Peter Lilley: The Protocol. Mutual enforcement of the law can ensure goods are EU/UK compliant without border checks.

12 Feb

Lord Lilley is a former Secretary of State for Trade & Industy and for Social Security.

Critics assume that there is no alternative to the Protocol which would avoid hard borders between NI and both the Republic and GB while protecting the integrity of the EU market. But there is an alternative.

Insofar as the Protocol is intended to protect the EU internal market from non-compliant goods, it is a hammer to crack a nut. It subjects all goods circulating in Northern Ireland and entering NI from GB to the entire panoply of single market laws, regulations and validations. The Protocol has 73 pages just the titles of EU laws which it wants to apply in Northern Ireland or on goods entering from GB.

Yet the EU’s only legitimate concern is with that tiny fraction of goods which are first, actually exported from NI to the Republic (these constitute just 0.2 per cent of EU trade) and second – within that tiny amount – only that tiny fraction of goods for which UK standards in future diverge from those of the EU or fall foul of EU rules of origin. Currently – when many EU rules have not yet been applied – the EU has not reported a single instance of goods crossing the border which have been a threat to their consumers or producers.

The obvious solution is to make it an offence in UK law to export goods from Northern Ireland to the Republic which do not conform to EU rules, regulations and standards.

This would not require checks at the border any more than border checks have ever been required to police the 20 per cent difference in VAT rates between zero-rated goods exported to the Republic and those sold within NI. Companies were required, even when we were still in the EU, to record all exports to the EU on the “Europe List” in their VAT returns. Those lists would themselves provide evidence of what goods are being exported. In the event of suspicions about their compliance with EU standards the goods could be checked. But such checks would be made at the company’s premises, not at the border.

The EU would not depend solely on the UK authorities enforcing the requirement that goods exported from the UK comply with EU regulations. The EU would itself be able to prosecute in the UK courts any suppliers whose goods had been identified as non-compliant by its trading standards officers, customers or competitors (who have a strong interest in reporting non-compliance).

This approach is commonly called “mutual enforcement”, since it is usually assumed that it would require reciprocity. In principle, reciprocity would be desirable. That is, the EU/Republic of Ireland should likewise make it an offense to export goods into Northern Ireland which do not comply with UK regulations and standards. But reciprocity is not essential. In the event of the UK taking action under Article 16 or resiling from the Protocol, it would be sensible, and show good will, unilaterally to make it an offense to export non-compliant goods to the Republic/EU even if the EU chose not to reciprocate. That would reduce any excuse for “rebalancing measures”.

If the EU declined to reciprocate, the UK could still protect its own market – without border controls – from any EU goods that did not meet our standards (of which there will be very few). After all, HMRC was confident that they did not need border controls “under any circumstances” – including had there been no free trade agreement, in which case differential tariffs would have applied to many products. Given the Trade and Cooperation Agreement eliminates all tariffs on goods from the EU, HMRC’s task would be far easier.

Suella Braverman: The Government will ensure judicial review can’t be used as a political tool by those who’ve lost the arguments

26 Oct

Suella Braverman is the Attorney General for England and Wales, Advocate General for Northern Ireland and MP for Fareham.

The story of our constitution is much like the story of the UK itself: ‘an everlasting animal stretching into the future and the past, and, like all living things, having the power to change out of recognition and yet remain the same’, to borrow a line from Orwell, one of my favourite authors.

Dicey refers to it as ‘the most flexible polity in existence’. But this flexibility should not obscure Parliamentary Sovereignty – ‘the bedrock of the British constitution’ (Lord Bingham in Jackson v Attorney General) since at least 1689. One reason for the long-term health of our constitutional arrangements is the admirable restraint shown by the Courts when it comes to matters of high political controversy, something which our Parliament, in conversation with the people, is uniquely capable of navigating.

However, the last decade or so has seen a huge increase in political litigation, or put another way, the use of litigation as a political tool by those who have lost the arguments. This trend puts judges in an invidious position as it asks them to decide essentially political matters on applications for judicial review.

The Government is forced to spend taxpayers’ money defending such challenges – often the full economic cost is never recoverable. The attempted judicial review of former Prime Minister Theresa May’s triggering of Article 50 in the case of Wilson v Prime Minister is a stark example, with a costs order against the applicants of over £17,000 and the claim being branded by the courts as ‘inappropriately pursuing what was effectively a political campaign through the courts’, dismissing a 48-page skeleton as ‘particularly weak’.

More fundamentally, the radical departure from orthodox constitutional norms severely threatens their delicate balance. That is why the Queen’s Speech in 2021 included a commitment to restoring “the balance of power between the executive, legislature and the courts” – an ambition with which I wholeheartedly agree.

As I explained in my keynote speech to Public Law Project’s annual conference on October 19, the cases of Adams, the two Miller cases, Evans/UNISON and Privacy International (to name but a few) have strained the principle of Parliamentary sovereignty and introduced uncertainty into the constitutional balance between Parliament, the Government, and the Courts.

We have also seen an increased readiness to import HRA-style proportionality into judicial review. Senior judges, including Sir Philip Sales (now Supreme Court judge) have rightly said this is an ‘illegitimate legislative act’, and is not something courts should countenance. Considering these evolutions, it is perfectly legitimate for our Government to decide that it is worthwhile and important to invite Parliament to legislate to overturn individual decisions and these wider trends.

Simply put, it is important that we neither permit, facilitate nor encourage judicial review to be used as a political tool by those who have already lost the arguments. Elections, referenda and political fora are the appropriate settings for such debate, not the courts. The electorate is the correct arbiter in such matters, not the judiciary.

The Judicial Review and Courts Bill received its first reading in July 2021. That Bill includes a number of reforms and there has been little, if any, suggestion that it is not Parliament’s right, or that Parliament is not empowered, to overturn decisions of the Supreme Court (for example that of the Cart judicial review jurisdiction).

The principle would thus appear to be broadly accepted. Indeed, several academics have suggested the Bill could go further – the most consistent contributions on this front have been from Policy Exchange’s Judicial Power Project, which have put forward several papers on this topic, sparking constructive debate.

Now that the Supreme Court has departed from traditional notions of what is justiciable and what is non-justiciable, in a future case it might again choose to intrude upon territory well beyond its scope and in doing so usurp the power that should be the sole preserve of those directly answerable to the people. The mould has been broken. The authority of the judiciary must never again be pitched against the authority of the people.

While the courts have a vital role to play in our constitution, it is Parliament that has ended up supreme for a reason. Lord Sumption reminded us of this in his Reith lecture: “It is the proper function of the courts to stop Government exceeding or abusing their legal powers.

Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens. It is true, politicians do not always perform that function very well. But judges will never be able to perform it”.

Even if he is not so complimentary about politicians, I can’t help but agree with him! If we keep asking judges to answer political questions, we ignore the single most important decision maker in our system: the British people.