Boris Johnson has confirmed that his government is considering legislation to unilaterally suspend parts of the protocol. Speaking to reporters in New Delhi, the UK prime minister said that problems with the protocol were "getting more acute" and had to be addressed.
"The protocol really does not command the confidence of a large, large component of the population in Northern Ireland. We have to address that, we have to fix that. We think we can do it with some very simple and reasonable steps. We have talked repeatedly to our friends and partners in the EU. We will continue to talk to them. But, as I have said many times now, we don't rule out taking steps now if those are necessary," he said.
The legislation, which could be included in the queen's speech on May 10th, would disapply articles 5-10 of the protocol, which obliges Britain to apply some EU single market rules in Northern Ireland and impose some checks on goods coming from Britain. The Stormont Assembly is due to vote on whether to retain those articles by the end of 2024 but the Westminster legislation would trump any such vote, so that Northern Ireland's elected representatives would no longer have a say.
The legislation is expected to amend the part of the EU Withdrawal Act that gives the withdrawal agreement and the protocol primacy in British law, a key part of the treaty Mr Johnson agreed with the EU. Such a move would be a more aggressive step than triggering article 16 of the protocol, and would be in clear breach of Britain’s treaty obligations and of international law.
A spokesman for the European Commission said the protocol and withdrawal agreement were "legal obligations to which the UK is bound as much as we are".
“We are fully committed to working jointly with the UK government to find long-lasting solutions for Northern Ireland, to bring about long-lasting certainty and predictability for Northern Ireland. Only joint solutions can do that – jointly agreed solutions,” he said.
“This approach is working. Only a few days ago we reached a solution on medicines for Northern Ireland, which was agreed in record time ... Last October we came forward with a number of serious, wide-ranging solutions for Northern Ireland,” he added.
“Our intention is to continue working on these solutions with the UK over the coming weeks.”
Astonishing and reckless
Labour's shadow Northern Ireland secretary, Peter Kyle, described the proposed action as astonishing and reckless, noting that Mr Johnson was in India to negotiate a trade deal with prime minister Narendra Modi.
"Boris Johnson negotiated, his team drafted the Northern Ireland protocol; they presented it to the EU, they negotiated it into the deal. It doesn't work as well as it can do, that's why the Labour policy is, you build on it, we can improve the protocol, we can smooth it, and we can do so without breaking the law and breaking our international treaty we signed with the EU," he said.
“If we just recklessly pull out of it unilaterally, how will any other country in the world sign a deal with us and think that we will honour it? How will prime minister Modi react today when Boris Johnson asks for a trade deal if he is pulling out unilaterally of the last trade deal he signed?”
Anti-Brexit parties in Northern Ireland criticised the proposals. Michelle O'Neill, Sinn Féin's deputy leader, said the "Tories are completely out of touch with the majority of people in the North, who support the protocol, which is a direct consequence of Brexit.
“Once more, any unilateral action on the protocol would derail talks with the EU and breach international law, which must be respected,” she said.
SDLP leader Colum Eastwood said it demonstrated that a government "led by minsters who broke Covid-19 laws, admitted to breaching international law in a 'limited way' [and] … are now planning further breaches of an international agreement cannot be trusted."
He said Mr Johnson was “desperate to distract from the political turmoil he is experiencing” over the so-called Partygate scandal and this was about shoring up his position in his own party and shoring up the DUP’s position ahead of an election.”
In a statement the DUP leader Jeffrey Donaldson reaffirmed the party's position on the Northern Ireland protocol, saying it was "well known".
“The protocol is not supported by unionists and it needs to be replaced with arrangements that respect to Northern Ireland’s place in the UK,” he said.
A senior DUP source was cautious and said the party would wait to see the detail of any legislation but given that no unionist MLA in the last Assembly supported the protocol, they viewed it as recognition by the UK government that it needed to find a solution to the protocol and it was time Brussels and Dublin similarly recognised the protocol was undermining stability in Northern Ireland.
Stephen Kelly from Manufacturing NI said his understanding was that drafting of the legislation was "significantly advanced" but the response to it from business would depend on what it contained.
“At the moment we have unilateral extensions to the grace periods. If the UK legislation is about making them permanent, then we would find that hard to argue with,” he said.
“I don’t think anybody in business in Northern Ireland would believe that applying the full rigours of EU customs and SPS laws on trade between Great Britain and Northern Ireland is possible or feasible, so our preference would quite clearly be that people would come to compromise and agreement.
“It appears the UK government’s patience in trying to get there is running out, and they want to try and move the process forward significantly for domestic and Northern Ireland political reasons.
Alliance MP Stephen Farry said any such action by the UK government would be “counterproductive and damaging” and accused it of “pandering to the narrative of extreme unionism or the unicorn thinking of the ERG [European Research Group]”.