Overriding the Northern Ireland Protocol would be entirely legitimate

It is good to hear reports that a new Bill with regard to the Protocol will give us powers to tackle the grave problems it has created

Next week, there will be elections to the Northern Ireland Assembly at the same time as local elections on the mainland. These polls will bring to the fore the increasingly dire state of politics in Northern Ireland. Excepting some miracle, it is likely that the Northern Irish Executive will remain collapsed for the indefinite future.

The root of the problem is the Northern Ireland Protocol, which is part of the Withdrawal Agreement with the EU. It should not be confused with the later Trade and Cooperation Agreement, which regulates trade between Great Britain and the EU.

The Protocol is meant to protect the Belfast (Good Friday) Agreement and peace in Northern Ireland. Unfortunately, it increasingly has the exact opposite effect, by creating barriers within the United Kingdom between Great Britain and Northern Ireland, and forcing the people of Northern Ireland to live under EU laws over which neither they nor the Westminster parliament have any say.

Under the Protocol, large swathes of EU laws – basically, all EU laws relating to the single market in goods, or to customs, VAT and indirect taxes, and state aids – continue to apply inside Northern Ireland even though the UK has left the EU and its single market. Those laws must be kept up to date with changes made within the EU, resulting in hundreds of changes a year being imposed on Northern Ireland. The EU Commission and the European Court of Justice interpret and enforce those laws, with the Commission having the right under the Protocol to send in officials to oversee and inspect how they are being applied.

Checks on the movement of goods within this country between Great Britain and Northern Ireland are a serious and important problem. But having a foreign system of law applying within Northern Ireland – which voters there cannot change or influence and which will progressively diverge from UK law – is a fundamental problem of democracy and is actually the cause of the unwanted Irish Sea border.

This foreign law also threatens the constitutional status of Northern Ireland within the United Kingdom. The articles of union of 1800 between Great Britain and Ireland stipulated that there should be no customs duties or prohibitions on goods crossing the Irish Sea in either direction, and that subjects on both sides of the Irish Sea “in all treaties with foreign powers shall have the same privileges”.

The Allister case – the unionist-supported legal challenge against the Protocol – has (at least so far) failed in strict legal terms, but only because the Northern Ireland Court of Appeal ruled that the articles of union have been successfully “subjugated” by the 2020 Act of Parliament that gave effect in UK law to the EU Withdrawal Agreement and the Protocol.

To date, the government has mitigated some of the worst effects of the Protocol by using and extending “grace periods” to defer aspects of its implementation, while seeking to negotiate with an obdurate EU to minimise the checks on goods that cross the Irish Sea from Great Britain. But this is not a long-term or stable solution to the problems created by the Protocol, even if agreement could be reached.

That is why it is heartening to hear reports that the government is preparing a bill that would give ministers wide powers to disapply provisions of the Protocol under UK law. Such a bill is a long-overdue and very necessary step to tackle the grave problems created by the Protocol, and replace it with arrangements that control the movement of goods across the open Irish land border, while leaving Northern Ireland free to follow UK laws about goods and the Republic free to follow EU laws.

A key element of such arrangements would be a system of so-called mutual enforcement. The UK would impose a legal requirement on businesses who choose to export goods across the Irish land border to pay any EU customs duties that become due and to comply with EU laws about goods. The EU and the Republic would impose a corresponding requirement on businesses exporting from their territory into the UK.

Publishing the bill would change the dynamics of negotiating with the EU. At present, the EU can simply reject any changes to the Protocol knowing that it is embedded into UK law and ministers do not have the power to change it.

But the EU must be brought to recognise that no sovereign and independent state can possibly tolerate for more than a short time a part of its territory being subject to foreign courts and foreign laws. The EU would understand that once the bill became law, they would lose the power to continue to impose the Protocol.

The usual suspects will claim that such a bill would breach the UK’s international obligations. But the EU has obligations, too, including arguably under Article 13 of the Protocol to consider and agree in good faith changes to the Protocol that protect the Belfast (Good Friday) Agreement and that continue to protect the EU single market from duty-avoiding or non-compliant goods. It cannot be good enough for the EU simply to reject all changes under a “what we have, we hold” mentality.

The current Ukraine emergency, in which the UK is punching well above its weight in the collective defence of Europe, is not a reason for holding back. On the contrary, it is a reason for asking the EU to recognise that we too have a fundamental concern about restoring the sovereignty of our whole country.