Boris Johnson’s plans to tear up post-Brexit arrangements for Northern Ireland have come under fierce attack from Washington, with senior congressmen on both sides of the US political divide warning the “irresponsible” move is a threat to peace in the province.
EU commissioners are expected later this week to initiate new legal action against the UK, after Monday’s publication of a bill which would unilaterally rewrite the Northern Ireland protocol agreed by Mr Johnson with Brussels in 2019.
A former head of the government’s legal service said that ministers’ attempt to justify the move was “hopeless”, while another legal expert said the UK would face an “uphill struggle” to persuade any court that it did not amount to a breach of international law.
Foreign secretary Liz Truss said that the UK had been forced to take unilateral action because negotiations with Brussels to alleviate the disruption to trade in Northern Ireland following Brexit had reached a “dead end”.
But European capitals backed Brussels’ approach, with Germany saying the UK action was “not acceptable” and warning that “peace and prosperity on the island of Ireland are not a pawn”.
And Irish foreign minister Simon Coveney said London appeared “for whatever political reason” to be trying to “dismantle the protocol, which is international law, which was carefully put together over a number of years through painstaking negotiation involving this British prime minister to solve or to manage the disruption of Brexit on the island of Ireland as best we could”.
Irish premier Micheal Martin said Mr Johnson’s proposals were not “well thought out or well thought through” and the provisions of the bill would prove “anti-business and anti-industry”.
In a sternly-worded joint statement, a group of senior members of Congress urged the UK and EU to “continue negotiations in good faith to achieve durable solutions to post-Brexit trade challenges”.
The statement, signed by House ways and means chair Richard Neal, Europe committee chair Bill Keating and ranking Republican Brian Fitzpatrick and Congressional EU caucus chair Brendan Boyle, noted that the protocol was signed by Mr Johnson and ratified by the Westminster parliament.
“The introduction of legislation in the United Kingdom undermines the Northern Ireland protocol, threatens international law, and, most concerningly, could jeopardise the almost 25 years of peace established by the Good Friday Agreement,” they warned.
Congressman Boyle said that the legislation “clearly violates international law”, noting that around 60 per cent of members elected to the Northern Ireland Assembly last month back the protocol in its current form.
In a separate statement, the chair of the Senate foreign relations committee Bob Menendez said he was “deeply disappointed” by the UK’s decision “to unilaterally try to upend the Northern Ireland protocol”.
“The proposal is an irresponsible move that threatens the 24 years of peace enjoyed since the United Kingdom and the Republic of Ireland signed the Good Friday Agreement in 1998 as well as the economic wellbeing of everyone living on the island,” he warned, adding that the row was an “unneeded distraction” from international unity over Ukraine”.
Washington has issued a reassurance that the UK’s action would not block a possible future trade deal, but progress on that front has been negligible anyway since the arrival in office of President Joe Biden.
And a White House spokesperson called on both sides to “return to talks to resolve differences”.
UK ministers have said that their bid to override elements of the protocol relating to trade across the Irish Sea, the involvement of the European Court of Justice in dispute resolution and Wesminster control over tax rates in Northern Ireland is justified because the protocol in its current form is unacceptable to the unionist community.
But DUP leader Sir Jeffrey Donaldson dashed government hopes that the publication of the bill would trigger a return to power-sharing institutions by the largest unionist party, which has blocked the formation of an assembly and executive since last month’s elections.
“There’s a long way to go with this legislation. It will take months to pass through the Commons and the Lords unless the government decides to escalate the timetable for the bill, and we haven’t heard that,” he said.
“So, we will consider what happens in the legislative process, but at this stage we haven’t come to a view as to when the institutions might be restored.”
Legal experts gave short shrift to the government’s reliance on a concept known as the “doctrine of necessity” to support its claim that the bill will not breach international law.
The International Law Commission states that the doctrine can be invoked only in conditions of “grave and imminent peril” and in cases where the state deploying it has not contributed to the situation by its own actions.
A legal position signed off by attorney general Suella Braverman contends that this requirement is met because of “diversion of trade and serious societal and economic difficulties occasioned by the protocol” and “the strain that the arrangements under the Protocol are placing on institutions in Northern Ireland”.
But Sir Jonathan Jones – who quit as Treasury solicitor over an admission that legislation in 2020 would breach international law – described the position as “surely hopeless, giving no evidence of how this high test is met”.
“The EU will surely see it as a gross breach of the Withdrawal Agreement,” he said. “Legal proceedings seem inevitable.”
And Cambridge University law professor Mark Elliott said the government’s argument “engenders ridicule” and it was “highly doubtful” that any court would accept it.
“It would be an understatement to say that the government would face an uphill struggle in seeking to satisfy a court that the bill could be justified by reference to necessity,” said Prof Elliott.
“By announcing its intention to enact this legislation, and by accompanying it with a ‘legal justification’ that engenders ridicule, the government has once again signalled its willingness to play fast and loose with the rule of law and its commitment to a rules-based international order.
“In doing so, it cedes moral authority, casts doubt on its reliability as a treaty partner — including in any future trade negotiations — and invites other states to plead political convenience masquerading as ‘necessity’ in order to justify reneging on treaty obligations.”
