Liz Truss yesterday set out in a statement to parliament what the government intends to do about the NI protocol. She intends to “introduce legislation in the coming weeks to make changes to the Protocol.” These changes will ‘fix’ those elements that she claims aren’t working, namely: the movement of goods, goods regulation, VAT, subsidy control, and governance. This is bound to be greeted with frustration and fury in Brussels. We are becoming a pariah state.
I see several commentators are suggesting this amounts to quite a U-turn by the foreign secretary, who was all in favour of a negotiated settlement six months ago but now Johnson is in trouble over partygate and she is a potential leadership contender, her preference is for unilateral action.
This is in order to appeal to the hard right to which the Conservative party I once knew is currently in thrall.
The egregious Lord Frost tweeted that the EU are refusing to 'negotiate seriously' by which he means they're refusing to bow to British demands to renegotiate the very treaty he agreed less than three years ago.
I am no lawyer but I do know that there are two levels of law. Treaties between nations work on the international ‘plane’ and have zero effect on the domestic level unless legislation makes it so. I learned this much from the Gina Miller case since it was a central issue in what powers Theresa May had to trigger article 50. Truss however, appears to believe changing domestic law will somehow nullify the NI protocol, or parts of it anyway. It will not.
Despite what the Attorney General - the utterly hopeless Suella Braverman - says, the Withdrawal Agreement article 4 is quite explicit. Here it is in full:
1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.
Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.
2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.
So, even if minsters (and rest assured they will want any overriding to be done by ministers alone without asking parliament) are granted extraordinary powers, it is unlikely the courts will accept it because of the requirement to "disapply inconsistent or incompatible domestic provisions" contained in article 4 (2).
She told MPs: "I want to be clear to the House that this is not about scrapping the Protocol" but as Anton Spisak, a former civil servant and now a Senior Fellow at The Tony Blair Institute, says:
"However, the changes that she wants to achieve – a dual regulatory regime in NI, separate customs processes, and a new governance structure – are so substantive that they de facto amount to a new treaty."
His useful Twitter thread starts here:
A couple of thoughts on Liz Truss's statement on the N Ireland Protocol:
— Anton Spisak (@AntonSpisak) May 17, 2022
In truth the foreign secretary's statement amounts, some say, to nothing less than an announcement that Britain intends to repudiate a treaty entered into willingly and essentially break international law.
You will find another thread by George Peretz QC is also helpful:
“Clear” playing its usual role as a “tell” that the claim being made is not clear at all (in this case, a claim regarded with incredulity by every expert in the field of whom I am aware). pic.twitter.com/yk8R26OG5r
— George Peretz QC 🇺🇦 (@GeorgePeretzQC) May 17, 2022
Mr Peretz makes the same point that Jonathan Jones the former head of the government's legal department made on BBC's Newsnight on Monday, that the idea that action needs to be taken in support of the GFA is simply false. The 'road block,' as Peretz puts it, is that "the Protocol contains the binding acceptance by the U.K. that the Protocol is not just consistent with the GFA but “necessary to protect it” (Art 1.3)."
You can hardly claim you entered into an agreement to protect something that you later claim is damaging it. It is quite ridiculous for anyone let alone a government. As Ed Milliband said, if the WA and the NIP contained provisions the government couldn't live with, the time to raise objections was in October 2019 before agreeing to it.
Also Truss's assertion that the "Northern Ireland Protocol does not have the support necessary in one part of the community in Northern Ireland" is unlikely to stand up in court because it was also true and well known in October 2019 when the WA was signed. Moreover, the DUP have never supported the Good Friday Agreement in any case!
If this issue ever comes before an international court some unfortunate sap will have to argue the British government under Johnson either didn't realise what it was agreeing to or it acted in bad faith and has lied about it ever since.
However, the chances of Truss or Johnson getting legislation through parliament, legislation that 'every expert in the field' says breaks international law, is about the same as a snowball's in hell. Even if Tory MPs vote for it, and let's face it, a lot of them will, the House of Lords will not and will delay things. There will also be legal challenges and The Supreme Court will never allow it.
The EU know all this and in any case are carrying a much bigger economic stick on matters of trade. And anyone who thinks the Americans will keep out of it is sticking their head in the sand.
The UK cannot win on this. The enabling legislation won’t pass, our reputation will be badly damaged and nothing will be gained.
Johnson and Truss should sit down with the DUP and persuade them that NI cannot behave like a normal part of the UK any more. Brexit has made that impossible. That option disappeared in 2017 when Theresa May announced in her Lancaster House speech that Britain would leave the single market and the customs union.
The only possible ways forward are to accept the NIP with whatever modest technical changes can be agreed with the EU and Ireland in the Joint councils or rejoin the single market. There are no other realistic options.
