UK can override NI protocol, AG says
UK can override NI protocol, AG says
Will this be another ‘specific and limited’ breach of international law?
The attorney general has advised the government that it would be legal for parliament to override the Northern Ireland protocol, The Times reports this morning:
Suella Braverman has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”.
In evidence accompanying her findings, Braverman says that the EU is undermining the Good Friday agreement by creating a trade barrier in the Irish Sea and fuelling civil unrest.
Her submission argues that the agreement has “primordial significance” and is more important than the protocol. “There’s mountains of evidence that there’s a trade barrier down the middle of our country,” said a government source. “Suella has argued that trade is being diverted.”
Her submission also details “societal unrest” and cites hoax bomb attacks, including one targeting Simon Coveney, the Irish foreign minister. “There are increasing signs of violence in Northern Ireland,” the source said. “That can’t be allowed to carry on.”
Those don’t sound like legal arguments to me — although they refer to article 16 of the Northern Ireland protocol to the Withdrawal Agreement. Nor should we assume that Steven Swinford, political editor of The Times and Oliver Wright, the paper’s policy editor, were briefed by Braverman’s team. Their scoop seems more likely to have come from Liz Truss, the foreign secretary or Jacob Rees-Mogg, the Brexit opportunities minister, who are said to favour introducing the legislation as soon as next week.
But there will now be pressure on the attorney to publish the advice she has given the cabinet or, at least, to provide a summary for MPs. Lawyers will also be very interested to know whom she consulted before preparing her submissions. The BBC confirms that Braverman “has received legal advice that it would be lawful to override parts of the post-Brexit treaty for Northern Ireland”.
In the meantime, it seems to me, we are back to the position in September 2020 where the Northern Ireland secretary Brandon Lewis was telling parliament that proposed legislation, subsequently dropped, “does break international law in a very specific and limited way”.
That led to the resignation of Lord Keen of Elie QC as one of the government’s law officers. The person to watch now is Braverman’s deputy, the solicitor general Alex Chalk QC MP.