Liz Truss, Britain’s foreign secretary, on Monday published “reasonable and practical” legislation to rip up parts of Boris Johnson’s 2020 Brexit deal with the EU, relating to trading arrangements in Northern Ireland.
The Northern Ireland protocol was agreed by Johnson to address the unique situation of the region after Brexit, Northern Ireland remaining in the EU’s single market for goods and retaining an open border on the island of Ireland.
What does the protocol bill do?
The bill, if enacted, will allow ministers to “fix” problems identified in the protocol by giving them powers in domestic law to unilaterally override the Brexit treaty with the EU.
It focuses on four areas, including how to remove friction at Irish Sea ports. Under the protocol, checks are currently carried out on goods travelling into Northern Ireland from Great Britain — creating a contentious internal UK trade border.
A check-free “green lane” would be set up for goods destined for Northern Ireland, while trucks taking goods through the region across the open border into the Republic of Ireland — and thus the EU single market — would face “red channel” checks.
The bill ends the role of the European Court of Justice in enforcing the protocol — an affront to Tory Eurosceptics — although ministers could allow UK courts to refer matters of EU law to the ECJ. The bill would also remove EU control over state aid and value added tax in the region.
A fourth provision creates a dual regulatory regime, giving businesses a choice on whether to place goods on the market in Northern Ireland under either British or EU rules.
What is the point of the bill?
Johnson argues that the deal he agreed with Brussels has antagonised pro-UK unionist politicians in Northern Ireland, who hate the internal trade barrier within their own country.
Theresa May, his predecessor as prime minister, said no British leader could ever agree to a border in the Irish Sea. Johnson claims the overzealous operation by the EU of checks under the protocol is to blame for destabilising the 1998 Good Friday Agreement that ended three decades of sectarian violence in the region.
Brussels rejects this and the majority of the members of the regional assembly elected last month support keeping the protocol.
Johnson hopes that by legislating to rewrite the protocol, he can reduce trade disruption and persuade the biggest pro-British party — the Democratic Unionists — to rejoin the region’s power-sharing executive at Stormont alongside the Sinn Féin nationalists.
The problem is the DUP does not trust Johnson — the prime minister double-crossed unionists when he signed up to the original protocol. It is waiting to see if Johnson actually delivers the legislation.
Downing Street said changing the law would provide a more “stable” solution than simply activating Article 16 of the protocol, which allows either side to make temporary changes to the rules to avoid economic or political upheaval. Tory Eurosceptic MPs also demanded a new law.
Why is it so contentious?
Tory MPs critical of the bill say it will break international law and undermine Britain’s standing in the world, since it would mean ripping up a treaty only two years after the ink dried. The EU are furious.
The legislation also includes a controversial Clause 15, which gives ministers sweeping powers to rip up other parts of the protocol if they believe societal or economic damage is being caused.
Only three areas — human rights, free travel and north-south co-operation — are exempt. Government officials insist this is an “insurance policy” in case there needs to be any “tidying up”.
Downing Street insisted the power would not be used to scrap a planned “consent vote” in 2024, in which Britain and the EU agreed that Northern Ireland would be asked if it wanted to retain the protocol.
The protocol is popular with many in Northern Ireland, since it leaves the region uniquely with one foot in both the EU and UK markets. However, government insiders said any consent vote would apply to the protocol as rewritten by the bill — not the original.
Will it ever take effect?
Downing Street is confident the bill will survive a legal challenge, insisting it complies with the “doctrine of necessity” in international law, which allows states to act in the event of a grave risk to their essential interests.
Ministers claim that “primacy” goes to safeguarding the Good Friday Agreement, rather than upholding the protocol. Some Tory MPs accuse Johnson of going legal “opinion shopping” to find lawyers to agree with him.
Downing Street says it is “urgent” to sort out the protocol, but the House of Lords is expected to block a measure which many peers feel trashes Britain’s international reputation.
In the event of such a move, Johnson could deploy the little-used Parliament Act to bypass the Lords. It was last used by Tony Blair’s Labour government in 2004.
Johnson would then have to reintroduce the Northern Ireland bill in the following parliamentary session. But by that point, he would be getting close to a general election, due in 2024.
And even if the bill is enacted, the changes would not come into effect automatically — the legislation would only give ministers the powers to come up with an alternative regime.
A new regime is still some distance away, giving Britain and the EU months to try to come to a negotiated settlement — Johnson insists this is his preferred outcome. But trust and goodwill are now almost non-existent.