The government has unveiled plans to give ministers sweeping powers to “disapply” part of the Brexit deal that Boris Johnson signed in January, in a move that has shocked Brussels, threatens to provoke a rebellion by Conservative MPs and caused Nancy Pelosi, the speaker of the US House of Representatives, to warn there will be “absolutely no chance” of a US-UK trade deal if it presses ahead with the move.
The plans have prompted such concerns that the European commission vice president Maroš Šefčovič will travel to London on Thursday for an “extraordinary” meeting with cabinet minister Michael Gove of the joint committee set up to implement the withdrawal agreement.
Cabinet ministers have admitted the bill breaks international law. But Johnson’s spokesman defended the change on Wednesday, saying it was a necessary clarification of an agreement that had been rushed through in January.
“The withdrawal agreement and the Northern Ireland protocol aren’t like any other treaty,” he said. “It was agreed at pace in the most challenging possible political circumstances to deliver on a clear political decision by the British people and with the clear, overriding purpose of protecting the special circumstances of Northern Ireland. It contains ambiguities and in key areas there is a lack of clarity.
“It was written on the assumption that subsequent agreements to clarify these aspects could be reached between us and the EU on the detail. And that may yet be possible and we continue to engage fully with the joint committee process. But as I said before, we cannot allow damaging default positions to kick in if we can’t agree.”
The publication of the bill was met with astonishment among EU and legal experts who said it was far from the “few clarifications” that Downing Street had claimed it was seeking. The bill sets out what one legal expert described as an “eye-watering” attempt to override the Northern Ireland protocol of the withdrawal agreement.
The bill could yet prompt a rebellion by Conservative backbenchers. The veteran Tory MP for North Thanet, Sir Roger Gale, said he would not support the move. “Put simply, I will not vote to break the law,” he said.
Tobias Ellwood, the chair of the defence select committee, said he was disturbed by the plans. Asked by the BBC if he might consider voting against the legislation, he said: “Let’s see what happens. Lots of concerns were raised in the house, and the government will be conscious of that.”
The former prime minister Sir John Major said breaking international law would come with a price that could never be recovered.
“For generations, Britain’s word solemnly given has been accepted by friend and foe. Our signature on any treaty or agreement has been sacrosanct,” he said. “Over the last century, as our military strength has dwindled, our word has retained its power. If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained.”
And in a statement yesterday, Pelosi said: “Whatever form it takes, Brexit cannot be allowed to imperil the Good Friday agreement, including the stability brought by the invisible and frictionless border between the Irish Republic and Northern Ireland.
“The UK must respect the Northern Ireland protocol as signed with the EU to ensure the free flow of goods across the border.
“If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.”
The bill, published on Wednesday, explicitly seeks to give powers to ministers to unilaterally disregard some of the arrangements in the Northern Ireland protocol.
Another proposal is a rewriting of the state aid rules post-Brexit in Northern Ireland, removing the “direct effect” of EU law which gives any member of the public or business a right to sue in the event of a dispute under European law.
And it unpicks article 10 of the protocol in relation to state aid and states that it will “not be interpreted in accordance with case law of the European court” or “in accordance with any legislative act of the EU”.
One seasoned observer said: “It is an absolute assertion of ministerial rights over the courts.”
Northern Ireland’s most senior judge, speaking to BBC NI in words quoted by Irish broadcaster RTÉ, said he was “disappointed” by the plans to override parts of the protocol.
“An indication that you’re going to break international law … is something that may well undermine trust in the government and certainly may undermine trust in the system of the administration of justice,” Lord Chief Justice Declan Morgan added.
The move now threatens Brexit talks. The European commission president, Ursula von der Leyen, condemned the bill on Wednesday. One source said the logical conclusion was that negotiations could be suspended this week.
Ireland’s taoiseach, Micheál Martin, said he would be registering his “complete opposition” in a phone call to Johnson. “Proper negotiations are conducted on a ‘no surprise’ basis … and to drag Northern Ireland back into this is extremely divisive - and dangerous,” he told the Dáil, Ireland’s parliament.
One Irish source said: “The most despicable aspect of this is the way they have dragged Northern Ireland’s problems into their disagreements over Brexit. The way they were talking about doing it to protect peace was shameless, absolutely shameless.”
Paragraphs 42, 43 and 45 of the bill were described by legal experts as a blunt rewriting of the international treaty.
“This is a remarkable piece of legislation and it expressly contravenes our international legal obligations to a point that the legislation itself says this is the intention, as did Brandon Lewis [the Northern Ireland secretary] yesterday,” said Catherine Barnard, a professor of European law at Cambridge University, who added the bill was a “really eye-watering” attempt to rewrite the Northern Ireland protocol.
Steve Peers, a professor of law at the University of Essex, said: “It is an obvious breach of international law.”
Paragraph 42 of the bill is unambiguously headed “Power to disapply or modify export declarations and other exit procedures”, a reference to checks due to take place on goods crossing the Irish Sea.
Paragraph 42 gives the government powers to disregard article 10 of the protocol that defines the state aid rules, saying article 10 should “not to be interpreted – (i) in accordance with case law of the European court; (ii) in accordance with any legislative act of the EU, including regulations, directives and decisions.”
Barnard said that while she was surprised by the bluntness of the bill, it had to be explicit to avoid legal challenge.
One observer wondered if the attempt to place the powers in Westminster was not “revenge” for the supreme court decision to rule last September that prorogation of parliament was unlawful.
