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LONDON — Wounded by his party and with his leadership in peril, Boris Johnson is reaching — once again — for the Brexit button.
The British prime minister this week put the finishing touches to controversial legislation which would unilaterally rewrite parts of the Brexit divorce deal he negotiated with Brussels in 2019.
The long-anticipated bill to change the rules governing trade between Great Britain and Northern Ireland was signed off by Johnson within 48 hours of the dramatic vote on his leadership Monday night, which saw 41 percent of his own MPs call for him to go.
Now preparing his political fightback, Johnson hopes to once again reap the domestic dividends of a pugnacious row with Brussels. But it’s a risky undertaking for a weakened prime minister, with an array of backbench Tory MPs, unhappy business groups, campaigning lawyers and outraged EU politicians lined up against him.
“This is a big gamble, and it’s one he’s in a less good position to take than he was a week ago because of the opposition against him,” Bronwen Maddox, director of the Institute for Government think-tank, said.
The legislation, due to be published on Monday and far-reaching in scope, is the final and most controversial step in Britain’s long-running efforts to revise the Northern Ireland protocol, which it argues creates a bureaucratic nightmare for businesses shipping goods to the region from the rest of the U.K.
The bill would allow ministers to simply disapply parts of the agreement and impose their own solutions instead. These include creating a frictionless ‘green lane’ for trusted British traders moving goods into Northern Ireland not intended for the EU single market. Products destined for the EU would be placed in a so-called ‘red lane’ and undergo full checks and customs controls, the U.K. says.
Businesses in Northern Ireland would be able to choose between meeting British or EU standards in a new dual regulatory regime — essentially allowing firms to decide whether to trade freely with the EU or the rest of the U.K. The bill would also allow the U.K. government to rewrite all tax and spend policies in Northern Ireland — meaning, for example, that U.K.-wide cuts to VAT could be applied to the region.
Most controversial of all will be the U.K. government’s push for an arbitration mechanism for disputes, limiting the role of Court of Justice of the EU.
‘Historic low point’
In a speech to the European Parliament Wednesday, Micheál Martin, the Irish premier, warned any decision by Britain to act unilaterally over the protocol would be “deeply damaging” and mark a “historic low point.”
The European Commission, which wants Britain to engage with the EU’s proposals, is “absolutely opposed” to the idea of a dual regulatory system, arguing it would be “impossible to implement,” an EU official said.
Visits of Commission officials to Britain have been temporarily frozen in a further sign of the cooling bilateral relationship, a second EU official said. Cooperation in other areas, including R&D under the EU program Horizon Europe, will remain suspended for the time being.
Some within the British government genuinely believe they have no choice but to act unilaterally. They argue the plan led by Foreign Secretary Liz Truss would remove disruption for traders operating across the Irish Sea; help Northern Ireland benefit from tax cuts offered to the rest of the country; and is ultimately needed to restore power-sharing in Northern Ireland and protect the U.K.’s territorial integrity.
“The aim is to fix the problems and provide businesses and communities with certainty,” a U.K. official said. “Obviously we’d still — and always will — prefer to do that with the EU, but in any case the quicker we can restore the balance in the Belfast / Good Friday Agreement the better. Everyone should be able to agree with that aim.”
But crucially, some within Downing Street also see a chance to shore up much-needed public support for Johnson.
The prime minister’s deputy chief of staff, David Canzini, has told Tory special advisers that Brexit should be at the very top of the government’s agenda as a way to keep Johnson’s core voters in Leave-supporting areas engaged — in particular those who swapped Labour for the Tories at the 2019 general election.
The question, following Monday’s bruising confidence vote, is whether the prime minister can take his own MPs with him too.
Legal pitfalls
Johnson has thus far retained broad support within Cabinet for his Brexit approach. But in the corridors of Westminster, some Conservative rebels who voted against him on Monday are holding tentative conversations as to whether they should oppose the bill.
At this stage, a full-scale rebellion looks unlikely. Some MPs would rather wait to see if the bill is amended, and others fear Johnson would punish rebels with the loss of the Tory whip.
“At present it does not feel like ‘die in a ditch’ — but things can become flash-points very quickly,” one Tory MP said. “Losing the whip won’t help the party at all. It doesn’t impose discipline, it simply builds a new barrier.”
There are also fears unhappy ministers — or even senior lawyers — within Johnson’s government could resign over the U.K. stance.
The bill may also hit problems in the House of Lords, which could effectively block its passage with extended amendment attempts. In normal circumstances the unelected second chamber would eventually back down, but if peers believe the bill is “improper and unconstitutional” it is “perfectly possible” for them to refuse, said Jonathan Jones, senior consultant at law firm Linklaters and the former head of the U.K. government’s legal department.
For their part, Truss and Attorney General Suella Braverman insist the government’s approach does not break international law — but have refused to release the legal advice backing that position. A second U.K. official said the government is basing its plan on the need to protect the Belfast / Good Friday Agreement, an international treaty predating the protocol which put an end to decades of sectorial violence in Northern Ireland.
Johnson hinted as much in the Commons Wednesday. “The most important commitment … is to the balance and symmetry of the Belfast / Good Friday Agreement. That is our highest legal international priority, and that is what we must deliver,” he said.
Jones, who quit government in 2020 amid an earlier row over the Northern Ireland protocol, called this argument “very unconvincing.” The government “always knew about the Good Friday Agreement” which the protocol “was designed deliberately and carefully to protect,” he said.
The EU’s most obvious route for challenging the legislation would be to reactivate infringement procedures against the U.K., which it froze last year, or to launch fresh action over the most recent breaches of the protocol. Both possibilities are very much on the table, according to a second EU official.
Disruption galore
Further legal pitfalls may lie ahead for Johnson. Businesses in Northern Ireland that can prove the U.K. proposals damage their interests could potentially seek a judicial review once the law is passed.
Truss’s dual regulatory system “looks right on paper for retailers, but it’s a disaster for anybody else,” said Stephen Kelly, chief executive of business lobby group Manufacturing NI. Agri-food producers, in particular, will suffer if the U.K. deviates from the EU’s standards in areas such as pesticides, he warned.
Political opposition in Washington also looms large in Tory MPs’ minds. However British ministers have travelled regularly to the U.S. in recent months to try to reassure both the White House and Congress about their plans, and now believe the U.S. administration has a more sympathetic understanding of the U.K. position.
At heart Johnson remains a gambler. Resorting to the Brexit button is a temptation hard to resist for a prime minister who reached power on the back of Britain’s departure from the EU.
“Brexit won’t be ‘done’ until someone finds a solution to this,” Maddox, from the IfG, said.
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