London plays down significance of legislation affecting the North

British officials were at pains on Monday to play down the significance of this week’s legislation affecting the Northern Ireland protocol, insisting that Boris Johnson’s government remains fully committed to its implementation.

Negotiations between Cabinet Office minister Michael Gove and European Commission vice-president Maros Sevcovic on how to implement the protocol were going well, and the EU side was alert to the sensitivities and nuances of politics in Northern Ireland. Yet in the unfortunate and unlikely event that the joint committee fails to agree all the details before the end of the year, the British government must have plans in place for how key decisions about the protocol's implementation are made.

We will have to wait until the legislation is published on Wednesday to determine whether Britain is trying to circumvent the protocol or to assert a narrow interpretation of its obligations. But Downing Street is concerned that the EU will focus on the issue of “direct effect”, a concept in EU law that allows individuals to enforce a provision of European law in member states’ courts if national governments do not have discretion in how it is applied.

Britain wants to replace this concept with ministerial control so that its ministers will be able to make key decisions under the protocol, including whether goods moving from Northern Ireland to Great Britain must be accompanied by an export declaration; which goods moving in the other direction are deemed “at risk” of proceeding into the EU single market; and which state aid decisions should be notified to the European Commission.

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“If we don’t take these steps we face the prospect of legal confusion at the end of the year and potentially extremely damaging defaults, including tariffs on goods moving from Great Britain to Northern Ireland,” a British government spokesman said.

Negotiations

News of the planned legislation coincided with a fresh display of sabre-rattling from Johnson, who has threatened to abandon negotiations on a free trade agreement with the EU if a deal is not agreed by the middle of next month.

As Downing Street scrambled to respond on Monday, it was clear that the story about the Northern Ireland protocol was not leaked as part of the hardball strategy in the broader negotiations.

If anything, the suspicion that Britain could renege on its commitments under a binding international treaty has undermined Johnson’s effort to compromise on issues like state aid to avoid a no-deal outcome. It is more likely to reinforce doubts about his reliability as a negotiating partner and to strengthen the EU’s resolve to bind Britain into solid commitments about its future behaviour.