Boris Johnson faces fresh Brexit clash with judges

Posted By: October 11, 2021

No 10 prepares for confrontation in courts and House of Lords over Northern Ireland

https://www.telegraph.co.uk/politics/2021/10/09/boris-johnson-faces-fresh-brexit-clash-judges/

Edward Malnick and Harry Yorke. The Telegraph. London. October 9, 2021.

Boris Johnson faces fresh Brexit clash with judges

Boris Johnson is gearing up for a second explosive confrontation with Parliament and the courts over Brexit as he demands a new deal with the EU which would free Northern Ireland from the oversight of European judges.

Downing Street is preparing for a major clash with the House of Lords and Supreme Court as soon as next month, with senior officials drawing up plans to unilaterally suspend swathes of the Northern Ireland Protocol if Brussels refuses to make “significant changes” to the current deal.

The Telegraph understands that Lord Frost, the Cabinet Office minister, will make it clear to his EU counterpart that removing European Court of Justice (ECJ) oversight of the Protocol is a “red line” for Britain.

In a speech this week, he will warn that “no one should be in any doubt about the seriousness of the situation”, adding: “The commission has been too quick to dismiss governance as a side issue. The reality is the opposite.”

Lord Frost will unveil “a new legal text” reflecting the UK’s proposals. In a bid to reinforce Britain’s sovereign status outside the EU, he is expected to insist that the proposed new Protocol should form part of the recent UK-EU trade agreement, unlike the current version which sits within the withdrawal deal signed as the UK quit the bloc.

The disclosures came as a senior minister claimed the EU’s rigid approach over Northern Ireland was being heavily influenced by an “anti-Brexit” and “anti-British” French regime.

The minister claimed Emmanuel Macron’s hostility towards Brexit and Britain, rather than genuine concern about the goods trade on the island of Ireland threatening the EU’s single market, was behind France’s hard-line on Northern Ireland.

This week, Maros Sefcovic, the European Commission vice president, will set out the EU’s response to the UK’s demands, with claims on Saturday that the proposals would be “substantive and far-reaching”.

However, a concession allowing “national identity goods” such as sausages to enter Northern Ireland – despite EU rules restricting chilled meats from non-EU countries – was dismissed by UK sources as only addressing a “tiny” part of the problem.

In the event that the EU refuses “significant changes” both to remove trade barriers between Britain and Northern Ireland and eliminate the role of the ECJ, Number 10 is planning to trigger Article 16 of the Protocol in order to unilaterally suspend parts of the agreement.

However, senior figures believe the Government may be required to pass legislation enacting the move – setting up a potentially major clash with the House of Lords.

For years, the Conservatives have been heavily outnumbered by Labour and Liberal Democrat peers, although Tory figures said the party was now significantly closer to being able to win votes in the Lords partly because of a slew of appointments under Mr. Johnson’s premiership.

One senior MP urged Mr. Johnson to continue appointing new peers to increase the party’s presence in the Lords. The MP even claimed that Dominic Raab, the Lord Chancellor, and Jacob Rees-Mogg, the Leader of the Commons and Lord President of the Council, could use archaic rights to vote in the Lords if a division came down to a knife-edge.

Tory whips are more relaxed about the prospects of passing Article 16 legislation in the Commons, where Mr. Johnson enjoys a working majority of 81.

The Conservatives’ 2019 manifesto pledged to “ensure that Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK”, which the Prime Minister has said is under threat from the implementation of the Protocol.

Writing in The Telegraph, Sir Jeffrey Donaldson, the leader of the Democratic Unionist Party, said the Prime Minister agreed with his view that the UK should trigger Article 16 “if the EU does not step up and restore Northern Ireland’s place within the UK internal market”.

If Mr. Johnson opts to trigger Article 16 without legislation, he is expected to face a legal challenge similar to the cases mounted by the anti-Brexit campaigner Gina Miller in 2017 and 2019, which could force his hand.

The Northern Ireland Protocol is the part of the UK’s exit deal from the EU which covers the goods trade on the island of Ireland. Mr. Johnson and Lord Frost have demanded changes to the document on the basis that the EU’s “rigid” application of its rules is causing significant disruption to businesses and risks “economic damage” in Northern Ireland.

In a speech in Lisbon on Tuesday, Lord Frost will say: “We are working to reflect the concerns of everyone in Northern Ireland, from all sides of the political spectrum, to make sure that the peace process is not undermined. The EU now needs to show ambition and willingness to tackle the fundamental issues at the heart of the Protocol head-on.

“The UK-EU relationship is under strain, but it doesn’t have to be this way. By putting the Protocol on a durable footing, we have the opportunity to move past the difficulties of the past year.”

The peer will add that “without new arrangements” to replace the ECJ’s current role in policing the terms of the Northern Ireland deal, “the Protocol will never have the support it needs to survive”.

Tory sources believe the EU is likely to offer sufficient concessions for the Government to agree to enter several weeks of talks from this week, but that the UK could trigger Article 16 at the end of those discussions if Brussels fails to meet Lord Frost’s red lines, including the replacement of the ECJ’s role in the Protocol with a form of international arbitration.

Mr Johnson could simply opt to suspend specific and limited parts of the Protocol or to effectively suspend the whole agreement, as some Tories are urging him to do.

Martin Howe, a Brexiteer QC, said: “Because the Protocol is causing problems across the board, you can take measures across the board. They could seek an across-the-board removal of barriers against the importation of goods from Great Britain into Northern Ireland.”