The British government is threatening to write new laws to unilaterally set aside parts of Northern Ireland’s Brexit protocol over concerns over “peace and stability”.
But what options are open to the UK, given that the protocol was part of a legally binding international treaty co-signed with the EU?
Catherine Barnard, professor of EU law at the University of Cambridge, thinks there are five options to consider.
Article 16 of the Protocol
This is the most quoted set of clauses allowing for “safeguard measures”, including an interruption of controls and controls on goods crossing the Irish Sea in the event of “serious economic, social or environmental problems which may persist” or in the event of referred to as “trade diversion”.
In a statement earlier this week, the government said 200 retailers have stopped supplying customers in Northern Ireland.
But while Article 16 allows the UK to take “safeguard” measures, this has already been effectively implemented through previous unilateral measures to suspend controls on many goods.
The section of the protocol also requires the UK to notify the EU one month in advance that it is invoking Article 16 and the protective measures must be reviewed with the EU every three months in the joint committee.
As a negotiating tool, this is not strong. But it could score points among union members and Brexiter backbenchers.
Article 7(a) of the European Union (Withdrawal Agreement) Act 2020
This directly reflects the supremacy of the Withdrawal Agreement over national law. It covers all three elements of the agreement: the Irish border, civil rights and the divorce law.
Invoking it completely would be tantamount to walking away from the Brexit deal completely.
Using Section 7(a) would be very serious, as it would mean scrapping the entire agreement, which would also wipe out citizens’ rights. What the government could do is simply knock out the agreement on anything to do with the Northern Ireland protocol.
Article 8(c) of the European Union (Withdrawal Agreement) Act 2020
This will enable the UK to make updates to all EU directives related to the trade agreements with Northern Ireland without having to undergo a parliamentary act.
It results in what is known as “dynamic alignment” of UK and EU laws in this limited geographic area of the UK. This would rejoice unionists who have complained that the protocol has undermined the UK’s sovereign right to make its own laws for the whole country.
Article 38(b) of the European Union (Withdrawal Agreement) Act 2020
This is known as the Bill Cash Clause, which recognizes that the UK Parliament is sovereign. Although the clause is often referred to in hearings of the EU review committee chaired by Cash, a veteran Eurosceptic, it has never been challenged. It is also seen as an obvious statement, and is unlikely to be at the heart of the legal maneuvers of the Secretary of State, Liz Truss.
Article 62 of the Vienna Convention
Barnard thinks this is where Truss and the Attorney General for England and Wales, Suella Braverman, could focus their legal arguments.
The 1969 Pact allows a country to withdraw from an international treaty when “a fundamental change of circumstances which has occurred from those existing at the time of the conclusion of a treaty and which has not been agreed by the parties cannot be invoked as a ground for denunciation or withdrawal from the treaty”.
Barnard says this is challenging as all parties were aware of the divisions in Northern Ireland and the Belfast Good Friday Agreement contains mechanisms to respect all parts of the community.
Article 62 also warns that this “change of circumstances” cannot constitute grounds for renunciation of an international treaty if “the existence of those circumstances [which allegedly changed]” were an “essential basis” of the agreement of the two parties.
Since the protocol was about protecting peace on the island of Ireland and avoiding a hard border between Northern Ireland and the Republic of Ireland, this may not be a foolproof reason not to apply the treaty, she suggests.