British ministers would be empowered to override the Northern Ireland protocol almost in its entirety under legislation introduced at Westminster on Monday. However the European Commission has said it is likely to recommence legal action against the UK in response to the legislation.
The Northern Ireland Protocol Bill sets out detailed arrangements to replace the protocol’s system for checking goods from Britain and scrapping the requirement for goods in the North to comply with European Union standards.
But the Bill gives ministers the power to override almost every other part of the protocol if they determine they were causing political or economic disruption. The only elements that cannot be changed are the protocol’s protection of the Common Travel Area, North-South co-operation and human rights in Northern Ireland.
The Bill does not require the consent of Northern Ireland’s elected representatives and the Northern Ireland Assembly will not be able to give its consent to the original terms of the protocol in 2024. MLAs will instead be asked to consent to the new, unilaterally imposed arrangements, without the option of restoring the protocol as it was agreed in 2019.
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The Bill gives ministers the power to introduce a green channel with no checks for goods from Great Britain destined to remain in Northern Ireland and a red channel applying EU checks to goods that will move onwards across the Border. A dual regulation system would allow goods in the North to comply with either EU or British regulations.
The British government could apply state aid and VAT rules to Northern Ireland without reference to the EU and the European Court of Justice (ECJ) would no longer have a role in dispute settlement between Britain and the EU.
[ Border fears return to haunt Irish Government, writes Pat LeahyOpens in new window ]
UK prime minister Boris Johnson downplayed the changes as trivial, describing them as “some bureaucratic simplifications” between Great Britain and Northern Ireland.
“What we have to respect, and this is the crucial thing, is the balance and the symmetry of the Belfast/Good Friday agreement. We have to understand there are two traditions in Northern Ireland, broadly two ways of looking at the border issues, and one community at the moment feels very, very estranged from the way things are operating and very alienated. And we have just got to fix that. And it is relatively simple to do it. It’s a bureaucratic change that needs to be made. Frankly, it’s a relatively trivial set of adjustments in the grand scheme of things,” he told LBC.
None of the changes will come into effect automatically if the Bill becomes law and the protocol will continue to be implemented as it is now until ministers choose to exercise their power to override it.
European Commission
The European Commission said on Monday evening it is likely to recommence legal action against the UK. Speaking in Brussels on Monday evening, the EU’s Brexit chief Maros Sefcovic said that the EU had noted the UK government’s move with “significant concern”.
In addition to recommencing the existing legal action, Mr Sefcovic said, the Commission would also consider bringing new proceedings against the UK government.
He also said that the Commission would Shortly “present in greater details our model for the flexible implementation of the Protocol, based on durable solutions within the Protocol.”
“This will demonstrate that solutions to the issues raised by business and people in Northern Ireland exist,” he said.
But Mr Sefcovic also warned that the EU would consider further action against the British government if it proceeds with legislation to set aside the protocol.
The British government bases its claim that reneging on the treaty it agreed with the EU is not in breach of international law on the defence of necessity. States can plead this defence to justify breaking a treaty in order to safeguard an essential interest against a grave and imminent peril if there is no other available course of action and the breach does not seriously impair another essential interest.
Labour’s shadow foreign secretary David Lammy said the legislation was an attempt to distract from Mr Johnson’s leadership crisis, warning that it risked new trade barriers if the EU retaliates.
“Britain should be a country that keeps its word.
[ Slowly but unmistakably, Ireland and Britain are growing apartOpens in new window ]
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. The EU must show more flexibility as Labour has said from the start. But this legislation is not the way to unlock progress,” he said.
“This is a reasonable, practical solution to the problems facing Northern Ireland,” foreign secretary Liz Truss said in a statement. “It will safeguard the EU Single Market and ensure there is no hard border on the island of Ireland.”
The bill aims to:
- introduce green and red trade channels, separating goods just flowing between Britain and Northern Ireland from goods intended for the EU
-Allow businesses in Northern Ireland to choose whether they follow UK or EU standards, or both, for goods
- Extend UK subsidy controls and tax breaks, including changes to value-added tax to Northern Ireland
-Strip the European Court of Justice of its role in settling disputes over the Brexit deal in the region, allowing instead an independent arbitration panel to oversee legal issues.
Ahead of the bill’s publication, Minister for Foreign Affairs Simon Coveney responded to Mr Johnson’s assertion that the legislation to set aside aspects of the Northern Ireland protocol is “not a big deal”.
“This is a big deal, unfortunately. I wish it wasn’t,” Mr Coveney said on Monday afternoon at Government Buildings.
Mr Coveney insisted that the UK move was “a breach of international law”, which British ministers have denied.
“I don’t think there’s any other way to describe it. If you are legislating to set aside the elements of an international treaty, which is international law, well then you’re breaking international law,”
“Politically, this is an act of bad faith,” he said.
He said the UK government had decided to go against majority opinion in Northern and Ireland and break its word to the Irish government and to break an international treaty “that it signed, designed and ratified with the EU.” He said that the British claimed that its move was to protect the peace process. “It’s nothing of the sort,” he said.
Mr Coveney said that the EU would be “forced to respond in a way we don’t want.” Mr Coveney also said the move risked collapsing the protocol altogether. “The risk is by unilaterally acting the way they are now, they potentially risk collapsing the protocol because I don’t believe the EU can accept the approach the British government.
Earlier Taoiseach Micheal Martin warned the UK government unilaterally overriding the Northern Ireland protocol was a “very serious issue because it goes to the heart of the issue of trust”.
“ the European Union needs to have a trusted partner to negotiate with – the next deal has to be one, if there is to be further negotiation and a deal, people need to know that it is going to be adhered to.
“For a country like the United Kingdom to renege on an international treaty is something that does present a new low point because the natural expectation of democratic countries, like ourselves, the UK, and all across Europe, is that we honour international agreements that we enter into.
“And this agreement was ratified by the British parliament, it was approved by the British prime minister, and in our view the only way to resolve issues around the operation of the protocol is to have substantive negotiations between the United Kingdom government and the European Union.”
