Is Boris about to bin the Northern Ireland protocol?

Here we go. The UK is on the brink of another Brexit battle as ministers consider unveiling legislation that would unilaterally overwrite parts of the Northern Ireland protocol. This morning the Foreign Secretary spoke to the European Commission’s vice president Maroš Šefčovič – warning that the protocol has ‘become the greatest obstacle to forming a Northern Ireland Executive’. Liz Truss said that the situation in Northern Ireland is a matter of internal peace and security for the United Kingdom so if the EU did not show the required flexibility, the government would be left with no choice but to act.

What does that action look like? As James Forsyth first revealed in The Spectator, the UK is looking to legislate to protect the Belfast Good Friday agreement by unilaterally tearing up parts of the Brexit deal related to Northern Ireland. There is still hope that the EU could offer compromises in the talks. But without this, the government could unveil its plan to amend it anyway through legislation as early as next week. It’s worth bearing in mind that the process of actually bringing it into law would take time, so this wouldn’t happen overnight. The expectation is that the EU would only retaliate once it became law. 

Unsurprisingly, there is already a backlash among Conservative MPs, with those on the One Nation wing of the party warning against such drastic action. Former prime minister Theresa May has warned Boris Johnson that doing so could hurt Britain’s reputation for abiding by international law. That’s why the most significant development today relates to advice from the Attorney General. The Times reports that Suella Braverman’s legal advice to No. 10 is that legislating to override the protocol would be legal. Her argument is that doing so is defensible because the EU has implemented the terms of it in a ‘disproportionate and unreasonable’ way which undermines the Good Friday Agreement. 

This is important because it is a change in tack from previous attempts to change the protocol. When the government proposed the internal market bill in 2020, the government actually said it broke international law. That led to a fiery reaction and significant opposition, both in the Commons and the Lords. The fact that this time they are saying it is within law changes the calculation. The bill would still have a very tough time going through the Lords, but if the government said it was breaking international law it would have no chance at all.