Boris Johnson on Monday defied a chorus of criticism and published legislation to rip up his 2020 Brexit deal with the EU, insisting there was “no other way” of protecting the peace process in Northern Ireland.
Johnson published the government’s legal position claiming he faced a “genuinely exceptional situation” and that the Northern Ireland protocol was causing “peril” to social and political conditions in the region.
Citing the “doctrine of necessity”, the paper said the “essential interests” of the UK would be harmed unless a law was passed to override the compromise Johnson struck with Brussels over the region only two years ago.
Northern Ireland’s pro-UK unionists have refused to join a power-sharing government in Belfast with the nationalist Sinn Féin unless the protocol, which covers trading arrangements in the region, is rewritten.
The bill’s publication immediately prompted Brussels to threaten legal action against the UK, with warnings that it would undermine trust and make it harder to negotiate a way out of the impasse.
Maroš Šefčovič, the European commissioner for Brexit, said the commission would look at restarting legal proceedings frozen last year while negotiations were held on reforming the protocol and could also begin new action.
Simon Coveney, Ireland’s foreign minister, said Johnson’s unilateral approach marked a “new low” and amounted to a breach of international law, while a majority of elected members of Northern Ireland’s assembly also attacked the move.
A letter to Johnson signed by 52 out of 90 assembly members, including Sinn Féin’s first minister-elect Michelle O’Neill, rejected “in the strongest possible terms your government’s reckless new protocol legislation”.
The Northern Ireland protocol bill, published on Monday, aims to remove most checks on trade in goods from Great Britain to Northern Ireland at Irish Sea ports, helping to erase the internal trade border that infuriates pro-UK unionists.
Goods destined to stay in Northern Ireland would pass through a green channel with no checks, while only GB goods intended for onward travel to the Republic of Ireland and the EU single market would go through a “red lane”.
The legislation, drafted in consultation with Eurosceptic Tory MPs, would end the oversight role of the European Court of Justice as well as EU control over state aid and value added tax in the region.
The bill would also create a dual regulatory regime, allowing goods originating in Great Britain to circulate in the region provided they met UK standards, rather than the EU’s.
Members of the pro-Brexit ERG are consulting their lawyers in a so-called “star chamber” on Tuesday to consider whether Johnson’s bill goes far enough in meeting their demands over national sovereignty.
EU officials said the UK had already failed to implement large parts of the deal agreed by Johnson. Any case would probably end up at the ECJ, which could impose fines for non-compliance.
If the UK refuses to pay and comply with its judgment, the EU could end parts of its post-Brexit trade deal, applying tariffs to British goods. Brussels has already indicated it will exclude British scientists from the €95bn Horizon Europe research project, in its first economic reprisal.
Johnson said a trade war between the EU and UK would be a “gross overreaction” and he still wanted a negotiated settlement, but Šefčovič said: “The European Union will not renegotiate the protocol.”
Downing Street could not say whether ministers had modelled for the possible impact of trade reprisals — an issue that had concerned chancellor Rishi Sunak — through a formal impact assessment on the bill.
The US has also urged Johnson to negotiate with Brussels a settlement to the Northern Ireland problem. Joe Biden, US president, and EU leaders are likely to confront Johnson on the issue at a G7 summit in Germany later this month.
Sir Jonathan Jones, former head of the government legal service who resigned over Johnson’s earlier handling of the Northern Ireland issue said the bill was “completely extraordinary” and was “at the extreme end of anything we might have expected”.
The Democratic Unionist party, Northern Ireland’s largest unionist party, has refused to restore the power-sharing agreement in the region after the nationalist Sinn Féin became the largest party in the May elections.
DUP leader Sir Jeffrey Donaldson on Monday welcomed the bill but stressed “we need to be sure the legislation is going forward” before his party could return to Northern Ireland’s political institutions.
“I don’t believe what the government is proposing is illegal,” he said. “I believe what the government is proposing is a solution.”
The UK government claimed it was not responsible for creating the crisis facing Northern Ireland, arguing that “the peril that has emerged was not inherent in the protocol’s provisions”