Breach of Protocol: The MPs, EU leaders and lawyers accusing the government of breaking international law with new NI bill

European Union officials, Tory MPs, business leaders and many Northern Irish politicians raced to set the record straight, describing the UK’s move as a breach of international law, “deeply damaging”, “regrettable” and “toxic”.

The new legislation would fundamentally alter the protocol, although observers note that it may take many months to work its way through the UK parliament.

At the moment, Northern Ireland remains in the EU single market and goods coming from Britain are checked at ports – essentially meaning there is a customs border in the Irish Sea. This has enraged Northern Ireland’s main unionist DUP party, who are refusing to re-enter the power-sharing Stormont assembly – or government of Northern Ireland – until the protocol is amended.

And so that is what Monday’s bill proposes, with the creation of a dual regulatory regime, allowing Northern Ireland businesses to keep to either UK or EU standards, and scrapping the checks on goods arriving from Great Britain, if they are not then moving across the Irish border. The bill would also get rid of the European Court of Justice’s role in ruling on trade disputes and bring Northern Ireland’s tax break and spending policies into line with the rest of the UK.

Just after the bill was introduced into parliament, foreign secretary Liz Truss, who took over the Brexit brief from David Frost last year, said the UK government was not breaking the law.

“What is vitally important is that we do resolve this situation in Northern Ireland that is causing real problems. We haven’t seen the (Stormont Assembly) executive operating since February, we need to get power-sharing re-established. We know how hard-won the Belfast Good Friday Agreement was and that is why the government has to act, that is why we are introducing this legislation. Now, of course, we remain open to negotiations with the EU and I would rather achieve this through a negotiated settlement but the fact is the EU have refused to change the protocol which is causing these problems on trade, on tax and more broadly in Northern Ireland,” she said.

In the legal argument published alongside the bill, Johnson’s government said: “This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the nonperformance of certain obligations.”

Earlier, speaking during a visit to farms in Cornwall, Johnson said the main objective was to make sure the balance of the Good Friday Agreement was protected. Which seems odd given that he lauded the protocol back in October 2019 for being “fully compatible with the Good Friday Agreement”. At the time, he also described the Withdrawal Agreement as “excellent” – and the protocol – the very protocol he negotiated and signed – was an integral part of that.

The reaction from the EU was swift and uncompromising. Maroš Šefčovič, the European Commission vice-president in charge of Brexit talks, said renegotiating the protocol was unrealistic and would only bring further legal uncertainty to Northern Ireland.

“For these reasons, the European Union will not renegotiate the Protocol,” he said in a statement, noting that the Commission had already put forward “far-reaching, bespoke arrangements” to facilitate the movement of goods between Great Britain and Northern Ireland.

“It is with significant concern that we take note of today’s decision by the UK government to table legislation disapplying core elements of the Protocol. Unilateral action is damaging to mutual trust. The Commission will now assess the UK draft legislation,” he said. “Our aim will always be to secure the implementation of the Protocol. Our reaction to unilateral action by the UK will reflect that aim and will be proportionate.”

Irish foreign minister Simon Coveney said the UK move was “deeply damaging”, while Taoisech Micheál Martin called on the UK to engage with the EU.

“We do not accept the presentation by the British government and certain ministers to the effect that the EU is inflexible and so forth. That is most definitively not the case. The EU has been most proactive for the past year in endeavouring to seek solutions,” Martin said, noting that many sectors in Northern Ireland – including manufacturing, dairy and meat – were benefitting from the protocol.

Poet Seamus Heaney said that anyone born and bred in Northern Ireland couldn’t be too optimistic. One might also say they cannot be too trusting of a prime minister who not so long ago vowed there wouldn’t be a border in the Irish Sea – “over my dead body” – and compared the land border between Northern Ireland and Ireland to the border between Camden and Westminster.

Michelle O’Neill, vice president of the nationalist Sinn Féin party, which won the most seats in recent elections for the Stormont Assembly, said Johnson’s actions were reckless, disgraceful and did nothing for the people of Northern Ireland.

“Boris Johnson’s action is illegal. He is in clear breach of international law,” she told a press conference. “What he’s doing today is to undermine the Good Friday Agreement,” she said, adding that most Northern Irish politicians supported the protocol and believed it was working given that the region was enjoying better growth than most parts of the UK.

O’Neill has previously said that the row over the protocol meant the North was being held hostage to Tory in-fighting and DUP disruption.

Even now, there is no guarantee that the DUP will play ball. Sammy Wilson, a DUP MP, told the BBC that his party would take its time to review the legislation and not rush to restore power-sharing in Stormont.

“If this bill has a tempestuous process through the House of Commons, amendment after amendment, attempts to weaken it, it’s likely it will face the same in the House of Lords, our assessment would be it would be very foolish to make any commitment to go back into the Assembly,” he said.

And the political forecast is indeed stormy. Last week 148 of Johnson’s own MPs voted to remove him and PoliticsHome says Tory MPs, who oppose the bill, were circulating a briefing document that says the bill is “damaging to everything the U.K. and Conservatives stand for”. The note also said unequivocally that the new bill “breaks international law and no shopping around for rent-a-quote lawyers can hide that”.

Jonathan Jones, the former Treasury solicitor and head of the government’s legal department, said the new legislation would “get Brexit undone” by undoing most of the protocol.

“Of course Parliament can enact such a Bill as a matter of UK domestic law. But it will be a clear & deliberate breach of our international law/treaty obligations and a massive breach of trust,” Jones tweeted.

Traditional Tory allies are also up in arms. The Confederation of British Industry said the threat to override the protocol was making companies think twice about investing in the UK, and called for immediate talks with the EU rather than what CBI director-general Tony Danker called “grandstanding”.

The bill is likely to anger the US administration as well. Last month, House speaker Nancy Pelosi said unilateral action on the protocol could endanger prospects for a free trade deal with the US.

Before the bill was presented to parliament, Johnson, apparently rediscovering his OTT dictionary, said that if the EU responded by starting a trade war, that would be a “gross, gross overreaction.” He told LBC radio: “How perverse, how preposterous … to be introducing further restrictions on trade when all we’re trying to do is have some bureaucratic simplifications between Great Britain and Northern Ireland.”

A trade war would heap misery onto an economy that unexpectedly shrank 0.3% in April, after a fall of 0.1% in March – the first back-to-back declines since the same months in 2020. However, Johnson was back to his booster-ish best when addressing the growth slowdown.

“We’ve got an inflationary price bump that we’ve got to get through … I think we’ll get through it very strongly indeed.”

It may be the case that the protocol bill – in its current form at least – will never become law, but it has further poisoned already fraught relations with the UK’s closest trading partners at a time of grave economic crisis. If it’s part of Operation Save Big Dog – the campaign to keep a post-Partygate premier in office – it comes with a heavy price tag, and the UK could be paying it for many more years.