UK’s new NI Protocol legislation is a breach of Brexit deal

The government of the United Kingdom has introduced draft legislation that will enable it to break the Northern Ireland Protocol.

This protocol is part of the withdrawal agreement that provided the terms on which the UK left the European Union. In particular, the protocol has special provisions that address how a “hard border” can be avoided between Ireland and Northern Ireland. The lack of such a border is part of the Good Friday Agreement that brought an end to decades of conflict in the north of the island of Ireland.

This legislation will be a breach of the withdrawal agreement. There is no dispute about whether there will be a breach. The UK government, however, maintains that the breach is somehow justified. Ministers are maintaining that the legal doctrine of “necessity” enables the government to break its obligations to the EU. They even say they have legal advice that supports this contention.

Few if any experts outside of the government believe that the proposed breaches are legally justified by “necessity” or any other legal basis. Indeed, there appears to be significant doubt within government as to whether this official stance is lawful. A leak indicates that the government’s most senior external legal adviser is privately not convinced.

The reason for this lack of support for the government’s legal position is simple. It is not true. This was an agreement that was voluntarily entered into by the government after a long period of discussion and heated debate about the post-Brexit position of Northern Ireland. Indeed, the last prime minister, Theresa May, was replaced with Boris Johnson because of the failure to get support for her alternative approach to addressing this problem. This is not an external, unexpected problem inflicted on a surprised United Kingdom.

And not only was it not a surprise, but the UK and the EU even agreed a detailed process in the protocol for dealing with difficulties, known as “Article 16”.  The UK, despite many threats, has refused to trigger this process that would lead to negotiations and possible safeguard measures. That the government is now seeking to rely on “necessity” to break the protocol without going through the Article 16 process has no sensible explanation.

The UK government has got itself into a predicament. It negotiated and signed an agreement either without understanding it or not intending it to have effect. This was done so as to “get Brexit done”. The government now wants to change that agreement – but agreements can only be changed by the parties agreeing, and the EU does not want to change.

The government now wants to coerce the EU into changing the protocol by this threat of agreement-breaking legislation. This is risky and discrediting.

It is risky because the outcome of such an aggressive approach is uncertain, especially given the delicate politics in Northern Ireland. It is discrediting because no other nation will now easily accept the UK’s word in international agreements. It is difficult to conceive of a more unwise course of action.

But the UK government wants to press on with the approach, regardless of the criticism. It is using its post-Brexit freedoms so as to weaken if not destroy its remaining international reputation. Perhaps the government may back down, or perhaps there may be some compromise. But the damage will be done. And, to coin a word, it will have not been “necessary” at all.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.