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Government Sets Out Powers To Override Most Of The Northern Ireland Protocol

Government Sets Out Powers To Override Most Of The Northern Ireland Protocol
7 min read

The government has published legislation that aims to hand ministers the power to scrap large parts of the Northern Ireland Protocol despite significant opposition from the European Union and numerous Conservative MPs.

The bill, which Foreign Secretary Liz Truss unveiled on Monday afternoon, also faces pushback from the House of Lords, amid criticism that if implemented it would break international law. Truss's counterpart in the Republic of Ireland described UK plans to override the protocol as a "particular low point" in post-Brexit relations. 

The government insists that the plan acts within international law and published a summary of its legal position to accompany the legislation. Its position is that the "genuinely exceptional situation" justifies the "nonperformance" of oglibations it signed up when the protocol was agreed.

The government did not, however, go as far as critics have demanded by publishing all the legal advice it had received on the matter. 

PoliticsHome last week revealed that First Treasury Counsel, James Eadie QC, was not asked to provide his view on whether the plan breached international law, and that in his opinion it would be "very difficult" for the government to "credibly" argue that it did not. Eadie is most senior independent lawyer advising the government.

Truss said the bill would protect the Good Friday peace deal and "support political stability" in Northern Ireland. The region currently doesn't have a functioning government, with the Democratic Unionist Party (DUP) blocking the formation of an Executive over its opposition to the protocol.

DUP leader Jeffrey Donaldson welcomed the legislation but said he would not take his party into government with the region's largest party, Sinn Fein, until it progresses through parliament.

Truss said: "It will end the untenable situation where people in Northern Ireland are treated differently to the rest of the United Kingdom, protect the supremacy of our courts and our territorial integrity".

Speaking to Sky News after the bill was published, the Foreign Secretary said the government had made it "very clear" that it was "acting in line with the law".

The government argues that it has no choice but to take unilateral action after failing to reach a negotiated settlement with the EU after 18 months of talks.

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.

The bill will give ministers the power to unilaterally make sweeping changes to the treaty, which Truss described as a "reasonable, practical" measure to address "the problems facing Northern Ireland".

The government plans to significantly reduce the amount of checks on goods crossing the Irish Sea by creating a "green lane" for goods that are staying in Northern Ireland. These goods will be "freed of unnecessary paperwork, checks and duties", the government says in a paper setting out the proposed new regime. Additionally, it plans to establish a "dual-regulatory regime" allowing goods that enter the Northern Irish market to adhere to either UK or EU rules.  

If implemented, the bill would also remove the role of the European Court of Justice in overseeing Northern Ireland's post-Brexit arrangements, and overhaul how the protocol impacts tax policy so that there is no difference between the region and the rest of the UK when it comes to VAT.

It is likely to be a number of months before the legislation becomes law, however, and the UK and EU are expected to continue negotiating in the meantime. Truss stressed that the government's preferred way of solving the Northern Ireland Protocol remained an agreement with the EU. 

It is also understood that the changes would not come into effect immediately after the bill receives parliamentary approval. Government officials indicated that ministers would use the powers handed them to action the changes once the systems required to deliver them are ready.

The measures set out by Truss this afternoon amount to major changes to the Northern Ireland Protocol and are expected to prompt legal action from Brussels, and possibly trade retaliation.

Maros Sefcovic, the European Commission Vice President, said the bloc noted the publication of the bill with "significant concern" and would consider how to respond. He said Brussels could take legal action against the UK and hinted at possible trade retaliation. Sefvoci said the EU was ready to find an agreement with the UK and that the bloc would soon present its proposals in "greater details".

Prime Minister Boris Johnson this morning said trade retaliation would "be a gross, gross overreaction" by the European Commission, and insisted that the changes set out in today's legisaltion were "relatively trivial set of adjustments in the grand scheme of things".

Simon Coveney, Ireland's foreign minister, in a phone call with Truss this morning said the UK's plan to act unilaterally represented a "particular low point" in its approach to Brexit.

An Irish readout of their call said: "Minister Coveney repeated that the protocol is the negotiated solution, ratified by Westminster, to the hard Brexit pursued by the U.K. government.

"The UK’s unilateral approach is not in the best interest of Northern Ireland and does not have the consent or support of the majority of people or business in Northern Ireland. Far from fixing problems, this legislation will create a whole new set of uncertainties and damage relationships".

A majority of politicians in the Northern Irish assembly wrote to Johnson prior to the publication of the bill, saying: "We reject in the strongest possible terms your Gov’s reckless new Protocol legislation". The ketter was not signed by a unionist MLA, however.

The bill is set to face opposition from numerous Tory MPs who are urging the government to scrap its plan to act unilaterally and instead up its efforts to negotiate a deal with the EU.

In a briefing note leaked to PoliticsHome on Sunday, Conservative MPs who intend to vote against the legislation say it "is damaging to everything the UK and Conservatives stand for" and ignores warnings from senior legal figures that it would break international law.

"A Bill with ‘notwithstanding’ clauses disapplying our own ratification legislation breaks international law: no amount of shopping around for rent-a-quote lawyers can hide that Labour’s decision to do this over Iraq was damagingly exposed and should be a cautionary tale," it reads.

David Lammy, the Shadow Foreign Secretary, said the legislation was "a desperate attempt by Boris Johnson to distract from the drama of his leadership crisis".

"Britain should be a country that keeps its word. By tearing up the Protocol it negotiated just a couple of years ago, the Government will damage Britain’s reputation and make finding a lasting solution more difficult," he said.

He called on the government to publish the legal advice it had received in full, not just a summary of its position.

Claire Hanna, the Social Democratic and Labour Party (SDLP) MP for South Belfast, expressed frustration that Truss did not make a House of Commons statement about the legislation.

"The UK government's contempt for the people of Northern Ireland is underlined by the foreign Secretary failing to come to parliament to explain such a substantial and destructive move".

A government source stressed to PoliticsHome that ministers do not usually make statements at the first reading of legislation. Second reading, at which point Truss is expected to address MPs, is expected to take place before parliament breaks up for its summer recess next month. 

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