European judges to be stripped of protocol powers
Johnson expected to face fresh rebellion over Bill that opponents say would break international law
EUROPEAN judges will be blocked from having the final say on Northern Ireland disputes under a new Brexit law set to prompt a fresh Tory rebellion against Boris Johnson.
The proposed legislation, being unveiled today, will remove the oversight of the European Court of Justice (ECJ) and hand the final judgment on disputes to the British courts under powers that will effectively mean parts of the Northern Ireland Protocol no longer apply.
“There will still be a limited role for European courts but they won’t get the final say,” said a government source.
The Bill, to be presented to the Commons today by Liz Truss, the Foreign Secretary, aims to reverse the damaging effect of border checks introduced as part of the Brexit deal to allow Northern Ireland unique dual access to both EU and UK markets.
It seeks to remove almost all customs checks on products entering the province from mainland Britain, creating a “green lane” for those goods destined for shelves in Northern Ireland.
Northern Irish businesses will be allowed to choose between following UK or EU regulations. It will also fix “the unacceptable situation” where people in Northern Ireland cannot benefit from the same tax benefits as everyone else in the UK, Whitehall sources said.
The move to limit the ECJ’S role will be seen as a tactic to force the EU back to the negotiating table rather than spark an immediate trade war with the bloc given that it is expected to be resisted in the Lords for months and unlikely to become law for a year.
Mr Johnson is understood to have agreed to a more hard-line version of the Bill supported by Ms Truss and senior Brexiteer Tory MPS despite reported opposition from Michael Gove, the Levelling Up Secretary, and Rishi Sunak, the Chancellor.
It comes as the Prime Minister seeks to shore up his support on the Right of the party in the wake of last week’s confidence vote in which 41 per cent of his MPS called for his removal.
A source close to Ms Truss said: “The logic of this is simple. The EU won’t agree to change the protocol – even though it is undermining the Belfast Good Friday Agreement – so therefore we’re obliged to act. This isn’t about picking a fight with the EU, it’s about doing right by the people of Northern Ireland.”
One senior Brexiteer MP gave the proposed law “eight out of 10” as he claimed it was likely to be opposed only by those Remainers who would “vote against it no matter what was presented in front of them”.
It will, however, spark a fresh Tory rebellion, with MPS opposed to the Protocol plan this weekend sharing a briefing document setting out why they intended to vote against the Bill. The note said the proposed legislation was “damaging to everything the UK and Conservatives stand for”, was “toxic to the very swing voters the Union depends on” and “breaks international law”.
There is, however, thought to be a large section of Tory MPS who voted to stay with the EU but who will back the Bill provided it is shown to be lawful.
Yesterday Brandon Lewis, the Northern Ireland Secretary, sought to reassure MPS as he pledged the legislation would not breach international law and that the Government would set out its legal position in a separate document.
“What we’re going to do is lawful and it is correct,” he said. But he added that the situation was “wrong at the moment”. “And it’s proving part of the problem of having a UK internal market having governance from the ECJ. There’s no logic to that,” he said.
Sir James Eadie, the first Treasury
counsel, the government’s independent barrister on nationally important legal issues, was consulted but unusually was not asked for a specific legal opinion.
Suella Braverman, the Attorney General, is believed to have legally greenlighted the Bill on the basis that it is necessary to defend the higher-priority Good Friday Agreement, which ended conflict in Northern Ireland and the Government says is being endangered by the protocol.
The Bill follows months of pressure from the Prime Minister on the EU to agree “significant change” to the protocol including freeing Northern Ireland from the ECJ.
Mr Johnson dropped the demand earlier this year although it was revived by Ms Truss. According to reports yesterday,
The Bill follows pressure from the Prime Minister on the EU to agree ‘significant change’ to the Protocol
Michael Gove and Rishi Sunak joined forces last week to fight plans by the Foreign Secretary to force through legislation to override the protocol.
In a heated meeting on Wednesday with representatives of the eurosceptic European Research Group (ERG), Mr Johnson was said to have sided with Mr Sunak and Mr Gove against the ERG, which was arguing for all reference to the ECJ to be struck from the protocol.
However, on Thursday, the Bill was tabled with clauses limiting the role of the ECJ and giving British courts the final say, prompting claims by senior civil service officials that its writing had been “subcontracted” by Truss to the ERG, a charge strongly denied by the Foreign Secretary.
The Bill is expected to meet fierce opposition in the Lords. Writing in The Daily Telegraph, former Tory leader accused some peers, such as Baroness Wheatcroft, of already “strutting around” saying they would block the Bill because they claimed it was the job of the Lords to uphold the law.”