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Former Cabinet Minister Says Northern Ireland Protocol Bill Is No Longer Legal

Former Cabinet minister Robert Buckland (Alamy)

3 min read

A former Cabinet minister has said that the Northern Ireland Protocol Bill is no longer legal, having previously argued that the contentious legislation had justification in law.

Sir Robert Buckland, the former secretary of state for justice, said last summer that the government giving itself the powers to unilaterally change the post-Brexit treaty for Northern Ireland was legally sound because at the time UK and EU negotiations were stuck in a "stalemate".

But writing for The House, Buckland now argues that "things have changed dramatically since mid 2022", with talks between the UK government and the European Union having progressed to allow an agreement to be delivered imminently. He believes the legislation is now a "proverbial dead letter" as a result.

The Northern Ireland Protocol Bill has become the subject of a Conservative party row over Prime Minister Rishi Sunak's approach to solving the long-standing impasse over the Northern Ireland Protocol. 

The legislation, introduced last year by ex-prime minister Boris Johnson, was highly contentious as it would give ministers the ability to unilaterally overhaul the Northern Ireland Protocol without the EU's approval.  At the time government argued it was a necessary and legally justified way of guaranteeing the region's place in the UK in the absence of a negotiated settlement with Brussels.

However, as PoliticsHome reported earlier this month, the legislation is currently sat motionless in the House of Lords, with no sign of entering the next stage of the parliamentary process any time soon, as No 10 does not want it to undermine its negotiations with the EU. 

“It would be really unhelpful to have amendments played out in the House of Lords while the UK team is in the room with the EU," a Whitehall source said at the time. “It’s not that the bill has been officially paused. There just hasn’t been a push for it to go back on the order paper."

No 10 on Monday refused to provide an update on when it would push the bill onto the next stage, with a spokesperson telling reporters: "We have simply not set out the next steps."

Tory restlessness over the status of the legislation, spearheaded by Johnson and supported by senior Brexiteers like former Cabinet ministers Simon Clarke and Jacob Rees Mogg, has added to the political challenge facing Sunak in convincing the pro-Brexit wing of the Conservative party to back his proposed protocol deal with Brussels, which is close to being announced

Johnson was quoted by Sunday newspapers as saying it would be a "great mistake" to drop the legislation, arguing that it provides the government with vital leverage in negotiations.

Buckland is among the Conservative MPs who are calling on Sunak to forget about passing the bill and focusing instead on getting a deal with Brussels over the line.

"The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification," he wrote.

"Now that its first political aim, namely the start of negotiations with the EU, has been achieved, it follows that the legal argument that the bill was necessary because there was no other way of achieving change has evaporated."

Sunak had hoped to put a deal with the EU to the House of Commons today but a backlash from Tory Eurosceptic and the Democratic Unionist Party has forced the PM to delay his timetable.

It is now hoped that an announcement could happen on Thursday, but it could also be pushed into next week, a Whitehall source told PoliticsHome on Monday. Friday is not considered an option as it falls on the one-year anniversary of Russia's invasion of Ukraine.

Sir Jeffrey Donaldson, leader of the DUP, is set to speak at a meeting of the European Research Group of staunchly pro-Leave Conservative MPs later today, where they are expected to discuss their next steps in the protocol saga.

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