Liz Truss has risked a trade war with the EU and accusations of lawbreaking as she published legislation that would allow exports from Britain to Northern Ireland to follow either UK or EU standards and checks.
Publishing the Northern Ireland protocol bill, Truss said it would fix issues with the post-Brexit protocol by easing checks for firms selling goods from Britain destined for Northern Ireland rather than the EU. It would also remove the European court of justice as the arbiter of trade disputes and move to an independent mechanism.
The government published a summary of the legal basis for its actions, relying on a principle called the “doctrine of necessity” on the basis that the protocol is causing “peril” in Northern Ireland.
However, the EU, legal experts and even some Conservative MPs have said the move breaches international law as it gives ministers the powers to disapply parts of the protocol unilaterally, without the agreement of Brussels.
Maroš Šefčovič, the EU’s Brexit commissioner, hit out at the “damaging” move and he threatened to take ministers to court.
He said: “As the first step the commission will consider continuing the infringement procedure launched against the UK government in March 2021. We had put this legal action on hold in September 2021 in spirit of constructive cooperation to create the space to look for joint solutions. The UK as unilateral action goes directly against the spirit.”
One of the biggest changes would be the introduction of a choice for British firms exporting to Northern Ireland between meeting EU or UK standards on regulation, which are expected to increasingly diverge. It would also allow the creation of a green lane allowing fewer customs checks for goods destined for Northern Ireland and a red lane with existing checks for goods destined for EU countries.
Further measures include bringing Northern Ireland’s tax break and spending policies into line with the rest of the UK, and changing oversight of trade disputes so that they are resolved by independent arbitration rather than the European court of justice.
The legislation will encounter serious opposition in the House of Commons and in the Lords, with doubts over whether Boris Johnson has support for it to pass. The bill has some critics on the Eurosceptic right, including Northern Ireland’s DUP, as well as some on the one nation centrist wing of the Tories.
Government sources said a vote on the bill would hopefully take place before parliament breaks up for summer recess, but ministers would want to see some progress towards power-sharing returning in Northern Ireland first, which the DUP has been blocking.
A majority of members of the Northern Ireland assembly – from Sinn Féin, the SDLP, Alliance parties – wrote to Johnson on Monday saying they could not support the move, warning that it “flies in the face of the expressed wishes of not just most businesses but most people in Northern Ireland”.
The assembly is due to vote on whether it gives it consent for the operation of the protocol in 2024, four years after it came into force.
With opposition mounting, there are some doubts among MPs that the legislation will get anywhere. The government has been insisting it would still rather find a negotiated solution to fix problems with the protocol. But Ireland said on Monday that Truss had not engaged in negotiations with the protocol in a meaningful way since February.
A phone call on Monday morning between Truss and Simon Coveney, Dublin’s foreign affairs minister, lasted just 12 minutes. A spokesperson for Ireland’s Department of Foreign Affairs said: “Mr Coveney said publishing legislation that would breach the UK’s commitments under international law, the Brexit withdrawal agreement and Northern Ireland protocol is deeply damaging to relationships on these islands and between the UK and EU.”
David Lammy, the shadow foreign secretary, said it was a “desperate attempt by Boris Johnson to distract from the drama of his leadership crisis” and called on the government to publish its legal advice in full.
“It risks creating new trade barriers in a cost of living crisis and will only bring more uncertainty for the people of Northern Ireland who are trying to make the protocol work,” he said. “Britain should be a country that keeps its word. 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.”