Breaking international law is no way to protect peace in Northern Ireland

By admitting that it is prepared to break international law “in a very specific and limited way” if an agreement was not reached on certain aspects of the Northern Ireland protocol, the government raised the stakes in the negotiations with the EU.

It is not clear whether the prime minister is attempting to put pressure on the EU, tank negotiations altogether or play to certain factions of his party. The UK Internal Market Bill, published on Wednesday, included provisions that would empower ministers to disregard the words of the Northern Ireland protocol and instead apply their preferred interpretation of its provisions. Facing a backlash from the opposition – and his own MPs – and following an angry response from the EU, Boris Johnson has attempted to argue that the proposed legislation is designed “to protect the Northern Irish peace process and the Good Friday Agreement”. However, breaking international law risks having the opposite effect.

The government should not pretend that it is motivated only by the interests of Northern Ireland

The bill sets out two ways in which the UK government is prepared to break the law, both of which seem motivated by the Johnson government’s own interests rather than those of Northern Ireland. The first would allow the Westminster to waive exit summary declarations – a simple form that has little cost implication for NI businesses. As such, this appears to be less about the burden on traders and more about symbolism, with the UK government wanting to deliver on its commitment to ‘unfettered access’ for NI businesses to the UK internal market. 

The second relates to state aid. Under Article 10 in the protocol, EU state aid law will apply to measures which affect “trade between Northern Ireland and the [European] Union”, but the UK government has only now realised that this could include business that operate UK-wide, who could then also be subject to the EU rules. The decision to empower ministers to apply Article 10 of the protocol according to their own interpretation again appears to be motivated more by a desire to advance the UK’s own political interests – the UK’s insistence on having complete autonomy over any new subsidy has been a stumbling block in future relationship talks with the EU – than to protect Northern Ireland trade.  

In both cases, these “specific and limited” interventions do little to address concerns raised by unionists in Northern Ireland. Extensive checks and processes will still be required on goods moving from Great Britain to Northern Ireland, and a no-deal Brexit would result in an even harder border.

The UK Internal Market bill will put the Northern Ireland executive in a difficult position

This is a UK government bill, but its implications for devolved competencies – placing new constraints on what the devolved legislatures can and can’t do – means it has the potential to destabilise the Northern Ireland executive. In accordance with the Sewel Convention, which states that the UK government will not normally legislate on these matters without the consent of the devolved legislates, the Northern Ireland assembly will be expected to vote on the bill.

Westminster’s latest move risks triggering constitutional rows among the often-fragile multi-party executive – only returned from a three-year collapse in January this year. Three out of five of the parties that make up the executive – Sinn Féin, the SDP and Alliance – have already expressed outrage at the UK government’s plans. The unionist parties, who are strongly opposed to the NI protocol, have welcomed the bill and its commitment to unfettered access, even if they woulld like it go further.

Last week, first minister Arlene Foster has accepted the “reality” of the protocol, but has come under pressure from members of her party to oppose the protocol altogether. Foster has said that Northern Irish ministers would “obey the law” in the relation to the protocol, but that she would not stop them seeking to make changes to it. Far from putting the matter of the protocol to bed, the bill has instead reopened previously solved questions, and a protracted dispute over its endorsement seems likely.

The government’s latest move risks reopening the Irish border question

The bill has also reignited the Brexit debate at Westminster, with members of the Conservative’s European Research Group, an influential collective of MPs lobbying for a hard Brexit, planning to table amendments that would give ministers powers to disregard other elements of the protocol, too. These could include on the requirements for checks and processes on goods moving between Great Britain and Northern Ireland.

While the EU could pursue a number of legal routes to force the UK to comply with the protocol, it may conclude that the UK’s latest moves poses a threat to the single market. If so, the politically sensitive question – and one which brings security risks – of border infrastructure on the island or Ireland may be reopened.  

Once again, Northern Ireland finds itself at the centre of Brexit negotiations, and once again it appears to be being used as a political football. The government’s motivations may not be clear, but there can be no doubt that breaking international law risks serious consequences in Northern Ireland. If the government really wants to protect peace in the region then it should rethink this move.