The government has admitted that its plan to reinterpret the special Brexit provisions for Northern Ireland would breach international law.
Northern Ireland Secretary Brandon Lewis stunned backbench MPs when he told the House of Commons: “Yes, this breaches international law in a very specific and limited way. We take the power not to apply the concept of direct effect of EU law … in certain very narrowly defined circumstances.
In a new Internal Market Bill, the government is expected to unveil plans for national powers to govern part of the Northern Ireland Protocol, which threatened to torpedo Brexit talks which resumed in London on Tuesday .
This would have led to the resignation of the UK’s top judicial official, Jonathan Jones, on Tuesday morning.
Lewis told the House of Commons what the UK was doing was not that unusual.
“There are precedents for the UK, and indeed other countries, to consider their international obligations as circumstances change,” he said, citing changes to the finance law in 2013.
But the admission drew a torrent of criticism, including from former Prime Minister Theresa May, who questioned whether Boris Johnson risked damaging the UK’s international reputation as a trustworthy nation.
“How can the government reassure future international partners that the UK can be trusted to meet the legal obligations of the deal itself?” she asked in an exchange with Lewis during an urgent question in the Commons on the latest developments.
Irish Foreign Minister Simon Coveney said the latest revelations were “gravely concerning”.
Coveney, who was instrumental in the Irish border negotiations, said he did not understand why the UK was seeking to create a ‘backstop’ given that the Northern Ireland protocol was specifically “designed and empowered to operate under all circumstances”.
“It’s certainly not asking too much of the UK to implement the withdrawal agreement it has agreed to,” he told Dáil Éireann, the lower house of Ireland’s parliament.
Johnson’s decision to try to override part of the Northern Ireland Protocol has put Brexit talks in jeopardy, but Lewis told MPs the new legislation, which would ‘clarify’ part of the special arrangements on Northern Ireland, was intended as “limited and reasonable steps to create a safety net” in case the talks failed.
Northern Ireland’s shadow secretary Louise Haigh has accused the government of using the region as “political football”.
She also asked whether the Government would ask ministers to break the Cabinet Code and vote for the Internal Market Bill, the vehicle for the Brexit changes, which is due to be tabled in Westminster on Wednesday.
Sir Robert Neill, Tory MP for Bromley and Chislehurst and chairman of the justice select committee, said ‘the rule of law is non-negotiable’ and an international treaty signed by the government must not be breached.
Claire Hanna, the SDLP MP for Belfast South, implored Lewis not to “use the threat of a border in Northern Ireland” as a “cat’s paw in this negotiation or any other negotiation”.
DUP North Antrim MP Ian Paisley accused the government of having a ‘tin backbone’ in failing to stand up to its critics, while his colleague Sammy Wilson, one of the most vocal critics of the Brexit deal, said: ‘We still don’t know the depth and breadth’ of controls in Northern Ireland.
Law Society of England and Wales President Simon Davis said: “The rule of law is not negotiable.
“Our commitment to the rule of law is key to attracting international business to the UK and to maintaining trust in our justice system.”
Government sources have claimed the move would not breach the Ministerial Code, as the requirement for ministers to comply with international law was removed from the guidelines in 2015 by David Cameron.
However, legal experts including David Anderson, a member of the EU House of Lords subcommittee on security and justice, said the code still required ministers to follow international law after a Court of Appeal ruling in 2018 found ministers had a “primary” duty to do so.
Lewis urged critics to wait until Wednesday to see what was in the bill.
“I think it would be completely wrong for the UK government not to take the approach of ensuring that there is a safety net should [Brexit talks’] fail, to make sure that in January companies and people know that they have put in place the content of a structure to deliver on our promises.
He said the bill was intended to deliver on the government’s promise that traders in Northern Ireland would have “unfettered access” to major UK markets.
However, he brushed off a question from Hilary Benn, chair of the Brexit select committee, who asked whether, as per protocol, UK businesses would have to complete paperwork, including entry summary declarations, if they were sending goods to Northern Ireland.
That, Lewis said, was being discussed in the dedicated EU-UK committee set up under the Withdrawal Agreement.