Northern Ireland Protocol Bill legally questionable and politically risky, according to a senior Tory

Foreign secretary Liz Truss. (Photo: Politics Home)

A senior Tory MP has broken ranks to publicly criticize the Northern Ireland Protocol Bill and to imply that continuing with the controversial legislation would be detrimental to the United Kingdom's international standing.

Sir Bob Neill, the Conservative member of parliament for Bromley and Chislehurst and chairman of the select justice committee, stated that the government's legal justification for unilaterally superseding the Northern Ireland Protocol was highly dubious that ministers should explain it to the legislature.

He cautioned the United Kingdom against ruining its image for law enforcement.

The government thinks that the international law notion of "necessity" allows the United Kingdom to legally rescind portions of the post-Brexit treaty it agreed to with the European Union during divorce negotiations.

After 18 months of unsuccessful negotiations with the EU, the United Kingdom claims it has no choice but to introduce the legislation. According to ministers, the protocol undermines the stability in Northern Ireland, where the Democratic Unionist Party (DUP) is preventing the formation of a government due to its objection to the post-Brexit arrangements for commerce across the Irish Sea.

However, senior legal professionals disagree. Sir Jonathan Jones QC, the former head of the government's legal department, referred to it last week as the most "extraordinary" legislation he'd ever seen and that the government's legal position was "hopeless."

In a written statement to The House, Neill raised doubt on the UK's "necessity" argument, stating that it was a "high bar to clear" and that ministers must explain how the level was fulfilled.

"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 questioned.

The senior Conservative MP noted that the presence of the European Court of Justice in the Northern Ireland Protocol treaty might "offend" specific individuals, presumably ministers and other Conservative MPs. Still, it is unclear how it poses an "imminent threat" to the region. The necessity theory is only justifiable when a state's interests are in "grave and imminent danger."

Neill questioned why the government had not used Article 16 of the treaty to eliminate the problematic portions of the protocol, as it had often threatened to do in the past.

"While the Article 16 procedure can be lengthy, can we really say that unilateral action is the "sole means" available to us if we haven't tried it or at least begun it in parallel?" he wrote.

Neill urged Foreign Secretary Liz Truss to resume negotiations with her EU counterpart Maros Sefcovic, stating that a negotiated resolution was the "solution" to the protracted standoff.

He stated that Brussels' "needlessly rigid and inflexible approach" to commerce between Great Britain and Northern Ireland was partly responsible for the failure to settle thus far.

However, the senior Conservative backbencher cautioned Boris Johnson that his plan to destroy the treaty unilaterally was not only legally dubious but also politically risky.

"The introduction of the bill does not violate international law in and of itself, but it is politically difficult, particularly in the lack of a promise from the DUP to return to power-sharing even if the bill is passed.

"There is no date yet for second reading, never mind committee stage, but there are already important questions to answer," he said.

As the bill makes its way through the House of Lords, it will encounter significant opposition and could spark a rebellion among some Conservative lawmakers. However, it is now unclear if a Conservative backbench rebellion would be large enough to jeopardize the government's victory.

There are also concerns regarding the time required for ministers to pass the legislation.

Monday, a spokesperson for Downing Street refused to commit to the bill entering the next stage of the legislative process — its second reading – before mid-July, when parliament adjourns for the summer.

PoliticsHome reported over the weekend that behind the scenes, government whips and fiercely pro-Brexit Conservative MPs are pressuring the DUP to form a government in Belfast before the Northern Ireland Protocol Bill becomes law.

Sammy Wilson, a DUP representative, stated that the unionist party's attitude "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 stated.

Publish : 2022-06-20 19:03:00

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