The Northern Ireland Protocol Bill is more extreme and far-reaching than anticipated, empowering British ministers to unilaterally scrap the protocol almost in its entirety. But by leaving it up to ministers to decide if and when to override the protocol, Boris Johnson has left open the possibility that nothing will happen at all.
The British government has made clear that if the bill becomes law the protocol will continue to be implemented as it is now until ministers choose to exercise their new powers. But it allows them in some circumstances to rewrite all of it apart from commitments to the Common Travel Area, North-South co-operation and human rights.
The bill offers no basis for negotiation with the European Union, which has ruled out renegotiating the text of the protocol and has no incentive to soften its position. The European Commission and the member-states know that Johnson’s domestic position is too weak to allow him to make the necessary compromises so they will not squander concessions on what they see as a regime in its dying days.
Introducing the legislation will not be enough to persuade the DUP to go back into government in Northern Ireland, but the government expects the party to agree to nominate a speaker for the Assembly within days. If the bill passes its stages in the Commons, Johnson will try to persuade the DUP to nominate a deputy first minister before it goes to the House of Lords.
His hope would be that by restoring the Stormont institutions, the DUP would demonstrate to the Lords that the legislation is necessary and effective. And it would hold over peers the threat that if they reject the bill they will be responsible for the DUP walking out of Stormont again.
The legislation is so reckless in its scope that it should win the support of Conservative Eurosceptics in the European Research Group (ERG). And although some Conservatives who are squeamish about trampling all over the rule of law will vote against it, there will not be enough of them to threaten the government’s majority.
The majority of MLAs elected last month have written to the government to express their opposition to the bill but the legislation itself makes clear just how much their opinion matters. It does not require their approval and it neuters the protocol’s consent mechanism by removing the option for the Northern Ireland Assembly to vote in 2024 to retain the original protocol.
The only option MLAs will be able to consent to is the one the British government will impose on them, and which most of them have already said they do not want.