Senior Tory Says Northern Ireland Protocol Bill Is Legally Dubious And Politically Risky
4 min read
A senior Tory MP has broken ranks to publicly criticise the Northern Ireland Protocol Bill, and suggested that continuing with the contentious legislation would damage the UK's reputation globally.
Sir Bob Neill, the Conservative MP for Bromley and Chislehurst, and chair of the justice select committee, said the government's legal defence for unilaterally overriding the Northern Ireland Protocol was highly dubious, and that ministers ought to explain it to Parliament.
He warned that the UK should be "very wary" of tarnishing its reputation for upholding the law.
The government believes the international law doctrine of "necessity" means that the UK can legally scrap parts of the post-Brexit treaty that it agreed with the European Union in divorce talks.
The UK argues it has no choice but to table the legislation after failing to find an agreed solution in 18 months of negotiations with the EU. Ministers say the protocol is undermining stability in Northern Ireland, where the Democratic Unionist Party (DUP) is blocking the formation of a government over its opposition to the post-Brexit arrangements for trade across the Irish Sea.
Senior legal figures disagree, however. Sir Jonathan Jones QC, the former head of the government's legal department, last week described it as the most "extraordinary" legislation he has ever seen, adding that the government's legal position was "hopeless".
Writing in The House, Neill cast doubt over the UK's "necessity" argument, saying it was a "high bar to clear" and that ministers should explain how the threshold had been met.
"Given the legal and reputational significance of taking such steps, should the government not have to make its case to, and seek the specific endorsement of, Parliament, in such instances?," he asked.
The senior Conservative MP added that while the presence of the European Court of Justice within the Northern Ireland Protocol treaty may "offend" some people, in an apparent reference to ministers and other Tory MPs, it is not clear how it poses an "imminent threat" to the region. The "necessity" doctrine is only justified when a state faces "grave and imminent peril" to its interests.
Neill also questioned why the government hadn't taken the alternative route of ditching the problematic parts of the protocol by invoking Article 16 of the treaty, which it had threatened to do so on many occasions in the past.
"Whilst the Article 16 procedure can be long drawn out, if we have not tried it, or at least commenced it in parallel, can we really say that unilateral action is the “only means” available to us?" he wrote.
Neill urged Foreign Secretary Liz Truss to return to talks with her EU counterpart Maros Sefcovic, writing that a negotiated outcome was the "solution" to the long-running impasse.
He said the failure to strike a compromise up to now was largely the fault of Brussels taking a "needlessly rigid and inflexible approach" to trade from Great Britain to Northern Ireland.
However, the senior Tory backbencher warned Boris Johnson that going ahead with his plan to unilaterally dismantle the treaty was not just legally questionable, but politically dangerous, too.
"Introducing the Bill does not of itself breach international law, but it is politically very risky, not least in the absence of any commitment from the DUP to return to power sharing even if it is enacted.
"There is no date yet for second reading, never mind committee stage, but there are already important questions to answer," he said.
The bill is set to face fierce opposition from the Lords as it makes its way through Parliament, and could trigger a rebellion of numerous Tory MPs. It is not yet clear whether a Conservative backbench rebellion would be big enough to risk a defeat for the government, however.
There are also questions over how long it will take for ministers to put the legislation into law.
A Downing Street spokesperson on Monday refused to commit to the bill entering the next stage of the legislative process – its second reasing – before Parliament breaks up for summer in mid-July.
PoliticsHome reported over the weekend that behind the scenes government whips, with the help of staunchly pro-Brexit Conservative MPs, are putting pressure on the DUP to take steps towards forming a government in Belfast before the Northern Ireland Protocol Bill becomes law.
However, DUP MP Sammy Wilson said the unionist party's position had "not changed".
"Until we have assurances that what is contained in the bill at present will actually be delivered in agreed legislation, we will not be co-operating in the formation of an Executive," he said.
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