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EU Launches Legal Action Against UK Over Northern Ireland Protocol Bill

Maros Sefcovic (Alamy)

3 min read

The European Union has announced that it is launching legal action against the UK after it brought forward legislation that if implemented would scrap most of the Northern Ireland Protocol.

Maros Sefcovic, the European Commission Vice President, said on Wednesday that the bloc was initiating two new legal cases against the government over its plan to unilaterally override the post-Brexit treaty, as well as resuming an infringement procedure that it started last year.

Speaking at a press conference, he said: "Let there be no doubt: there is no legal nor political justification whatsoever for unilaterally changing an international agreement.

"Opening the door to unilaterally changing an international agreement is a breach of international law as well. So let's call a spade a spade: this is illegal".

He said the UK move had "created deep uncertainty and casts a shadow over our overall co-operation, all at a time when respect for international agreements has never been more important".

“That is why the Commission has today decided to take legal action against the UK for not complying with significant parts of the protocol on Ireland/Northern Ireland."

On Monday the government unveiled contentious primary legislation that seeks to give ministers the powers to do away with large parts of the Northern Ireland Protocol.

The government argues it has been left with no choice but to take unilateral action after failing to reach an agreement with the EU on how to change the treaty in 18 months of negotiations.

The protocol, agreed by the UK and EU in 2019, was designed to avoid a contentious hard border on the island of Ireland, but resulted in new barriers to trade between Great Britain and Northern Ireland. Both sides are committed to reducing these barriers, but have failed to agree on how.

Sefcovic said the EU was publishing further details on how its proposals to amend the Northern Ireland Protocol would provide "solutions" to the issues facing trade across the Irish Sea.

The Northern Ireland Protocol Bill is set to meet fierce opposition from the House of Lords as it makes its way through parliament and could prompt a rebellion from numerous Conservative MPs. 

The government rejects widespread criticism that the legislation would break international law.

Foreign Secretary Liz Truss on Monday said the government had made it "very clear" in its published legal position that it was "acting in line with the law". 

The government argues that the international doctrine of "necessity" means it has legal justification to breach the treaty it agreed with the EU in order to address "the genuinely exceptional situation" in Northern Ireland.

The region is currently without a functioning government as the Democratic Unionist Party (DUP) is blocking the formation of an Executive over its opposition to the Northern Ireland Protocol.

Sir Jonathan Jones QC, who headed the government's legal department for six years before stepping down in 2020, today writes for The House that the bill is "one of the most extraordinary pieces of legislation I have ever seen", adding that the government's legal position is "hopeless".

The senior lawyer says: "The concept of 'necessity' is an extremely high test. It applies only where a state must act to safeguard its essential interests against 'grave and imminent peril'.

"How can an agreement willingly entered into only in 2020, at what the Prime Minister described as a 'fantastic moment', be already proving so disastrous as to represent 'grave peril' to the country?

"The government statement provides no evidence for such an extreme conclusion."

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