100s of titles, one news app for just $10 a month.
Dive Deeper:
How the UK may try to override the Northern Ireland Brexit protocol
The foreign secretary has a few legal arguments to consider, says a professor of EU law
Liz Truss warns EU she may have ‘no choice’ but to alter NI protocol
Foreign secretary repeats threat to scrap parts of Brexit deal, saying it is a matter of ‘peace and security’
Brexit: Tearing up Northern Ireland protocol would be legal, claims attorney general
Fresh legal advice comes as Boris Johnson dismisses idea of EU-UK trade war as ‘crazy’
EU issues furious rebuke as UK ramps up threat to rip up Brexit deal in Northern Ireland
Foreign Secretary Liz Truss has warned Brussels that Britain may have "no choice" but to suspend the NI Protocol -…
One subscription that gives you access to news from hundreds of sites
Brexit: Liz Truss tells EU she has ‘no choice’ but to act on Northern Ireland protocol
European Commission expresses ‘serious concern’ over ‘unacceptable’ UK stance
Brexit: We won’t give in to blackmail over Northern Ireland, warns EU
Row over protocol on brink of becoming a full-scale bust-up as Liz Truss says UK has ‘no choice but to…
Get all your news in one place
Latest Politics news:
Eden-Monaro and Gippsland are next-door neighbours: why is one seat safe and the other marginal?
The recent federal election saw some close calls but few surprises in the regions, where wild electoral swings are rare.
Read news from The Economist, FT, Bloomberg and more, with one subscription
Learn More
Calls for new innovation patents after old scheme abolished
There are fresh calls for a new innovation patent scheme to be launched by the federal government to help local SMEs…
Clive Palmer and One Nation flopped at the election. What happened?
Many commentators tipped Clive Palmer’s United Australia Party (UAP) and Pauline Hanson’s One Nation to perform well this election by…
Politics with Michelle Grattan: Treasurer Jim Chalmers on the 'spiky' parts of Australia's inflation problem
New treasurer Jim Chalmers has been in multiple briefings since Sunday, and the message he sends in this podcast is…
Madison Cawthorn and the Mischief Rule
Eugene has a post on today's decision by the Fourth Circuit (per Judge Heytens) on Rep. Madison Cawthorn's challenge to…
From analysis to good news, read the world’s best news in one place
Linda Greenhouse Lives in a Bizarro World on Dobbs
To Greenhouse, overruling Roe is an act of "judicial activism" and "raw power."
‘Landmark’ Amazon shareholder push for greater tax transparency
Amazon will face a “landmark” shareholder vote pushing the global tech giant to provide greater tax transparency in Australia and…

Experts scorn UK government claim it can ditch parts of NI protocol

By Matthew Weaver
A lorry drives past a sign welcoming drivers to Belfast Harbour Estate in Belfast, Northern Ireland
Attorney general’s advice that sectarian tensions are grounds to unilaterally change Northern Ireland protocol is flawed, argue expert lawyers. Photograph: Liam Mcburney/EPA

Claims that the UK government has discovered a legal justification for tearing up large parts of Brexit arrangements in Northern Ireland have been greeted with scorn by expert lawyers.

The attorney general, Suella Braverman, has reportedly approved overriding the Northern Ireland protocol on the grounds that it is being unfairly enforced by the EU. Her submission, understood to be based on external advice, claims the EU’s “disproportionate and unreasonable” implementation is undermining the Good Friday agreement (GFA), according to the Times.

But George Peretz QC, a barrister who specialises in EU law, told the Guardian: “I can’t see how any lawyer could possibly advise the government that they’ve got a slam-dunk case. What I’ve seen so far doesn’t give them sustainable legal cover.”

Sir Jonathan Jones, who resigned as head of the government’s legal department in 2020 when ministers last threatened to ditch parts of the protocol, told BBC Radio 4’s PM programme: “The government knew about the Good Friday agreement when it entered into this protocol, and the protocol is said to be a way of protecting the interests of the Good Friday agreement. So the idea that now becomes a basis for walking away from the protocol I think is very problematic.”

On Thursday the foreign secretary, Liz Truss, reiterated UK plans to scrap parts of the protocol, telling the EU’s Brexit negotiator it was a matter of “internal peace and security”.

According to the Times, Braverman’s advice says the GFA has “primordial significance” over the protocol and its current implementation is creating “societal unrest”.

Peretz said: “‘Primordial significance’ is not a legal term that I’ve ever come across.”

Catherine Barnard, a professor in EU law at Trinity College, Cambridge, agreed. She said: “There is no hierarchy of treaties in law. The GFA may be a political priority, but it has no primacy in law.”

She said the UK could come up with a legal argument for invoking article 16, which allows for suspending some obligations under the protocol, if specific difficulties could be proved. But this was “very limited” in scope and time, and subject to review.

She said the legal requirement for ditching the protocol was “an extremely high bar”.

Peretz reckoned the government would struggle to justify invoking article 16 based on economic problems, because these were known about in advance. “It was pretty obvious to both parties that putting a border down the Irish Sea was going to divert trade, so that would be a bizarre argument,” he said.

He added that growing sectarian tensions, reportedly cited by Braverman, would not be enough to overturn an international treaty. “In international law, social unrest is not a basis for denouncing a treaty which you’ve signed,” Peretz said.

Braverman’s reported claim about the primacy of the GFA over the protocol also runs counter to the text of the agreement, Peretz said. “Article 1.3 says the protocol is not only consistent with the GFA but necessary to it,” he said.

He pointed out that this principle had been upheld in the court of appeal. “The government itself has argued strenuously in court that the protocol is entirely consistent with the GFA, so I don’t see how this can possibly get off the ground.”

Barnard called for Braverman’s advice to be made public.

Peretz said the government may be reluctant to publish. He said: “When I was a government lawyer 30 years ago, it was drummed into me that you never ever published the attorney general’s advice. The advice may be guarded and nuanced, and say that the arguments against are quite strong. To publish something like that is not that impressive.”

Some lawyers have backed the government’s plans for a bill to override the protocol. They include Martin Howe, the chair of the pro-Brexit group Lawyers for Britain.

In a Telegraph article last month, he wrote: “The EU must be brought to recognise that no sovereign and independent state can long tolerate a part of its territory being subject to foreign courts and laws. The EU would understand that once the bill became law they would lose the power to continue to impose the protocol.”

Peretz said this was a minority view among lawyers. He said: “If the advice is all about the conditions for exercising article 16, this is something the government might arguably be able to run. As to whether there’s an argument for simply ditching parts of the treaty on the basis that the text isn’t binding on the UK any more, that’s much more difficult. And I think there’s general agreement about that.”

He added: “I have no idea the extent to which the government has hawked around the bar until it found a lawyer who is prepared to say what it wants. But that’s possible.”

What is inkl?
The world’s most important news, from 100+ trusted global sources, in one place.
Morning Edition
Your daily
news overview

Morning Edition ensures you start your day well informed.

No paywalls, no clickbait, no ads
Enjoy beautiful reading

Content is only half the story. The world's best news experience is free from distraction: ad-free, clickbait-free, and beautifully designed.

Expert Curation
The news you need to know

Stories are ranked by proprietary algorithms based on importance and curated by real news journalists to ensure that you receive the most important stories as they break.

Dive Deeper:
How the UK may try to override the Northern Ireland Brexit protocol
The foreign secretary has a few legal arguments to consider, says a professor of EU law
Liz Truss warns EU she may have ‘no choice’ but to alter NI protocol
Foreign secretary repeats threat to scrap parts of Brexit deal, saying it is a matter of ‘peace and security’
Brexit: Tearing up Northern Ireland protocol would be legal, claims attorney general
Fresh legal advice comes as Boris Johnson dismisses idea of EU-UK trade war as ‘crazy’
EU issues furious rebuke as UK ramps up threat to rip up Brexit deal in Northern Ireland
Foreign Secretary Liz Truss has warned Brussels that Britain may have "no choice" but to suspend the NI Protocol -…
One subscription that gives you access to news from hundreds of sites
Brexit: Liz Truss tells EU she has ‘no choice’ but to act on Northern Ireland protocol
European Commission expresses ‘serious concern’ over ‘unacceptable’ UK stance
Brexit: We won’t give in to blackmail over Northern Ireland, warns EU
Row over protocol on brink of becoming a full-scale bust-up as Liz Truss says UK has ‘no choice but to…
Get all your news in one place