Boris Johnson has said a legal move to ditch parts of the Northern Ireland protocol is only an “insurance” policy, as it emerged that the controversial legislation has been delayed for some weeks.
Liz Truss, the foreign secretary, is expected to give a combative statement on Tuesday threatening to bring forward the draft legislation, after a cabinet discussion on Northern Ireland.
However, the timetable for the draft laws has now slipped, with the text now only promised before the summer break, according to Whitehall sources.
The plans to take unilateral action was causing a “wobble” in Westminster on Monday night after the DUP leader Sir Jeffrey Donaldson went further than before in a press interview and warned he would not go back not go back into the Stormont executive until new laws was “enacted” .
“We’ve come all this way to get them back into the assembly; commit to legislation, risk a trade war and that’s not enough for the DUP.
There is now real concern as to whether this strategy will work at all,” said a senior source.
The prime minister came under sharp criticism from all sides on Monday when he flew into Belfast in an effort to revive the devolved government at Stormont, amid the continuing row over the protocol.
One of the major sticking points is the protocol aligning Northern Ireland’s trade with the EU rather than the rest of the UK, with the DUP refusing to return to power-sharing without major changes.
Within the UK’s Brexit withdrawal agreement with the EU, the Northern Ireland protocol lays out arrangements that effectively keep Northern Ireland in the single market, drawing a customs border between it and the rest of the UK, with checks on goods passing from Great Britain to Northern Ireland.
That means there is no requirement for checks across the UK's land border with Ireland. The 1998 Northern Ireland peace deal requires keeping the land border open and that there be no new infrastructure such as cameras and border posts.
However. both the British government and the European Union recognise that the implementation of this deal has triggered the disruption of supply chains, increased costs and reduced choice for consumers in Northern Ireland.
The rules means that goods such as milk and eggs have to be inspected when they arrive in Northern Ireland from mainland Britain, while some produce, such as chilled meats, cannot be imported at all. This is because the EU does not want to risk them entering the single market over the land border and then being transported on.
What is article 16?
Article 16 is an emergency brake in the Irish protocol, that allows either side to take unilateral action if the protocol is causing “serious economic, societal or environmental difficulties that are liable to persist”, or diversion of trade. Serious difficulties are not defined, giving both sides leeway for interpretation.
This would launch a process defined in the treaty as “consultations … with a view to finding a commonly acceptable solution”. Article 16 is meant to be a temporary timeout, not an escape hatch.
During his visit, Johnson said he was committed to negotiations with the EU on the protocol but that he would not be dragging his heels on potential legislation if talks did not result in a solution.
He said: “We would love this to be done in a consensual way with our friends and partners, ironing out the problems, stopping some of these barriers east-west.
“But to get that done, to have the insurance, we need to proceed with a legislative solution as well.”
Johnson said the UK does not want to “scrap” the Northern Ireland protocol, but believes it can be “fixed”.
He told broadcasters during a trip to Belfast: “We don’t want to scrap it. But we think it can be fixed.And actually five of the five parties I talked to today also think it needs reform.”
No 10 has not appeared to be as keen as Truss on the option of legislation to undermine the protocol in recent days.
One diplomatic source said one of the prime minister’s top aides had been privately telling people that the government was very committed to negotiations and no decision had been taken on pressing ahead with the legislation.
Delegations from the five main political parties questioned Downing Street’s credibility and post-Brexit strategy after meeting Johnson in separate back-to-back talks at Hillsborough Castle in County Down. Several hundred protesters outside the castle set the mood by jeering the prime minister’s cavalcade and holding placards saying “Back off Boris!”
Downing Street had expressed hope of calming tensions heightened by the DUP blocking an assembly and executive at Stormont in protest at the Irish Sea border. Instead rhetoric escalated, with Sinn Féin, the Social Democratic and Labour party (SDLP) and Alliance accusing Johnson of not acting in the interests of Northern Ireland. Several delegations questioned the point of the visit.
Downing Street had signalled hope that a move towards potentially overriding parts of the protocol would encourage the DUP to make a swift return to Stormont but the party leader, Sir Jeffrey Donaldson, insisted only actions, not words, would revive the Good Friday agreement institutions. “The DUP has a mandate to see the protocol replaced with arrangements that restore our place within the UK internal market. Our mandate will be respected.”
The tone reinforced signals from DUP sources who said the party will need more than an announcement of legislation to override the protocol – it will need legislation to clear hurdles at Westminster and appear on track to become law.
While the DUP publicly doubted the value of Johnson’s word, Sinn Féin accused him of complicity with the DUP in obstructing devolved government. “The British government is in a game of brinkmanship with the European institutions, indulging a section of political unionism which believes it can frustrate and hold society to ransom,” said the party leader, Mary Lou McDonald, after meeting the prime minister. She said he gave “no straight answers” during a “very tough meeting”.
Most of the protesters outside Hillsborough were nationalists who demanded that Johnson protect the protocol. Others were campaigners for an Irish language act and for justice for relatives of people killed during the Troubles, two additional controversies confronting Downing Street.
Johnson put on a brave face after the meetings. “Everybody should be rolling up their sleeves and getting stuck into the government of Northern Ireland,” he told reporters during a visit to Thales, an air defence manufacturer in east Belfast.
Naomi Long, leader of Alliance, the third biggest party, said most people and businesses in Northern Ireland favoured pragmatic solutions to the protocol. “Despite this, the foreign secretary will make a statement tomorrow to set the scene on unilaterally making changes to the protocol. That is not the way to business. Trust is the key ingredient and that involves keeping agreements, not breaking them. There is talk about safe landing zones on this matter. But as the pilot, Boris Johnson and the UK government is poised to crash the plane tomorrow.”
Colum Eastwood, the MP and SDLP leader, said he had a “robust” meeting with the prime minister. “Boris Johnson’s actions over the last two years and his words today is so great that it makes it impossible to trust the prime minister. He has recklessly used this place to serve his own narrow political interests and once again he is on the verge of overriding the interests of the majority of people here for his own ends.”
Another UK source suggested that there was an “a priori” issue with the protocol as it needed to be re-opened for issues such as governance but this was not the same as scrapping it.
The UK’s proposal to soften the role of the European court of justice and make an EU-UK arbitration board the first port of call in disputes would require a section of the protocol to be re-opened with new wording approved by each.
