David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.

The Conservatives had a net loss of nearly 500 council seats and eleven councils in last week’s local election but there is no move to replace the Prime Minister and he is reported to be ‘buoyant’. So that is alright then.

Attention has already turned to the Queen’s Speech which is an opportunity for something of a reset.  Much of the attention will be on the Government’s approach to the Northern Ireland Protocol and the possibility of legislating to give itself the power to change it unilaterally.  A Northern Ireland Bill is unlikely to be announced but there looks likely to be reference to taking action to protect the Good Friday Agreement.  Everyone knows what that means.

The Government will argue that the current situation – with a large number of checks on goods moving from Great Britain to Northern Ireland – is unsustainable and that it is now clear that the Protocol does not have cross-community support.  The DUP, the largest unionist party, is refusing to take up the position of Deputy First Minister unless the Protocol is scrapped.  This would mean power-sharing would continue to be collapsed, ultimately resulting in potential direct rule and further elections.

In these circumstances, the Government’s case is that it needs the power to override the Protocol if the EU will not agree to satisfactory changes.  According to James Forsyth , Ministers believe this will not be a breach of international law in failing to comply with the UK’s treaty obligations because the Northern Ireland Protocol is in conflict with the pre-existing Good Friday Agreement and the latter treaty, Ministers argue, should have priority.

Some in Government also think now is a good time to act.  The UK has acquired some diplomatic capital as a consequence of its bullish approach to Russia’s invasion of Ukraine.  In particular, the Poles and the Baltic States have been appreciative and would not want the EU to respond aggressively to action taken by the UK.

There are also political considerations.  If Boris Johnson wants to recover his hold on Leave-supporting voters or maintain his support in the Parliamentary Party amongst Brexiteer MPs, a row with the EU must be tempting.

There is much that could be said about the Prime Minister’s conduct in this area but for the moment let us just focus on the issue in front of him now.  There is scope to improve the working of the Protocol (not least by aligning on sanitary and phytosanitary measures) but, however tempting it might be, legislating to take the power to change it unilaterally would be wrong for at least ten reasons.

  • We should honour our commitments. It really is not credible to argue that we did not know that the Protocol would result in checks on GB-NI trade in the way that it has.  Pretending otherwise is an act of bad faith. 
  • Not doing checks on goods going from GB to NI does not solve the problem, it merely shifts it. The fundamental difficulty is the Northern Ireland trilemma which resulted from Brexit.  We might want regulatory divergence from the EU, no border between GB and NI, and no border between NI and the Republic of Ireland but as a practical matter we can only meet two out of three objectives.  If we are diverging from the EU a border has to go somewhere.  Scrapping border checks in the Irish Sea means they have to be performed elsewhere.
  • Insisting on ‘cross community consent’ is hypocritical and unworkable in this context. If the Government is trying to argue that all customs arrangement impacting Northern Ireland must have support from both communities, it is very hard to see what arrangements could be put in place for post-Brexit trade.  Certainly, a land border with the Republic would not be acceptable to nationalists.  If we were to pursue the logic of this position fully, we would not have left the EU at all because Brexit did not have the support of nationalists (or even the majority of Northern Ireland voters).  A further point is that a consent mechanism was negotiated in the Northern Ireland Protocol by which it can be scrapped if that is the simple majority position in the Northern Ireland Assembly (the first vote due in December 2024).  But the key point is that this must be the majority position of the Assembly as a whole – there is no unionist veto.  The UK did not insist on a cross-community veto when negotiating the Protocol and it cannot reasonably insist on one now.
  • Scrapping the Protocol would be undemocratic. We have just had an assembly election and the majority of those elected do not want to scrap the Protocol. If the UK Government attempts to remove the Protocol it will be disregarding the majority opinion in Northern Ireland.
  • Continuing to complain about the operation of the Protocol prevents the Government from making a positive case for the arrangements for Northern Ireland. There was a time when Ministers talked of Northern Ireland getting ‘the best of both worlds’ with access to both EU and UK markets but instead the Government’s narrative only encourages loyalist grievances.  The reality is that Northern Ireland’s economy bounced back from lockdown faster than the rest of the UK and is forecast to grow more strongly than most UK regions and nations in the next few years.
  • This will involve a breach of international law. The argument that the Protocol is incompatible with the Good Friday Agreement and therefore we can disregard the Protocol is unconvincing, to put it mildly, even if it convinces the Attorney General.  The case is not helped by the fact that Boris Johnson assured the House of Commons in October 2019 that the Protocol was ‘fully compatible with the Good Friday Agreement’.
  • It will damage our international reputation and weaken the western alliance. The UK’s standing has been enhanced by our approach to Ukraine but this can be very easily lost with EU member states and the US.  The view that we can now act as we please is complacent and fracturing Western relationships at this point would be grossly irresponsible.
  • It will be counterproductive in addressing the issue of border checks. The EU does not trust the UK Government and it does not want to reward bad behaviour.  Behaving badly (and this is how it will be seen) is very unlikely to result in concessions – it did not in autumn 2019 when threats of a no deal Brexit were made and it did not a year later when the Internal Market Bill was proposed.
  • The Bill will probably never become law anyway because it will not get through the House of Lords. Given that the legal arguments will not stand up to scrutiny, the Lords will almost certainly reject the Bill, just as it rejected the international lawbreaking aspects of the Internal Market Bill.
  • The policy creates economic risk and uncertainty for Northern Ireland and the UK as a whole. If we did abolish the Protocol, economically painful retaliatory measures would very likely follow, just at the time when we are likely to be entering into a recession and exacerbating the cost of living crisis.

For all of these reasons, pursuing legislation that enables the Government to rewrite the Protocol unilaterally would be a reckless and ineffective course of action.  It will only make matters worse.