European judges will be blocked from having the final say on Northern Ireland disputes under a new Brexit law set to spark a fresh Tory rebellion against Boris Johnson.
The proposed legislation will remove the oversight of the European Court of Justice (ECJ) and hand the final judgment on disputes to the British courts under new powers that will effectively mean parts of the Northern Ireland Protocol do not 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 on Monday by Liz Truss, the Foreign Secretary, aims to reverse the damaging impact 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 Great 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” whereby people in Northern Ireland cannot avail of 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.
Boris Johnson is understood to have agreed to a more hardline 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 that saw 41 per cent of his MPs call for his removal.
‘This isn’t about picking a fight with the EU’
A source close to the Foreign Secretary 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 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 an explosive briefing document setting out why they intend 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 will back the Bill provided it is shown to be lawful.
On Sunday, Brandon Lewis, the Northern Ireland Secretary, sought to reassure them 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 said it 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”.
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 on Sunday, 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 with representatives of the eurosceptic ERG on Wednesday, Mr Johnson was said to have initially sided with Mr Sunak and Mr Gove against the ERG, who were 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 Ms Truss to the ERG, a charge strongly denied by the Foreign Secretary.
UK courts ‘must have final say’
The Bill is expected to meet fierce opposition in the Lords. Writing in The Telegraph, Iain Duncan Smith, the 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”.
“The Government will only bring such a Bill in if it complies with international law…We simply cannot go on like this watching the Good Friday Agreement being damaged by the Protocol. We have to act,” he said.
“We have to ensure the UK courts have the final say in the operation of any agreement, not the European Court of Justice.”
The DUP is reportedly expected by ministers to re-enter a power-sharing arrangement at Stormont before the summer recess in order to prove to the EU and the US that issues around the Protocol can be resolved.
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Stormont is not currently sitting after Sir Jeffrey Donaldson’s party blocked the appointment of an assembly speaker in the wake of the Northern Ireland Assembly election results last month.
“The onus is on the DUP to show good faith and nominate not just a Speaker for the Stormont Assembly but also a deputy first minister to allow power-sharing to get up and running fully,” a government source told the Times.
Mary Lou McDonald, the Sinn Féin president, claimed the Government was planning to break international law and suggested it was part of an agenda to subvert the Good Friday Agreement.
Speaking on Sky News, Mrs McDonald said: “What the Tory government is proposing to do in breaching international law is to create huge, huge damage to the northern economy, to the Irish economy.
“They propose to breach international law and are on an agenda of undermining, attacking and damaging the Good Friday Agreement.”
