Boris Johnson faced growing condemnation on Wednesday as he pressed ahead with a controversial bill to unstitch parts of the UK’s Brexit treaty, prompting Brussels to set out its options for legal action.
The European Commission confirmed on Wednesday that the plans violated the treaty, saying in an internal analysis paper that they amounted to “a clear breach of substantive provisions” of the protocol on Northern Ireland agreed as part of last year’s deal with Boris Johnson.
In the analysis paper, seen by the Financial Times, Brussels also laid out options for pursuing Britain if it presses ahead, including hauling the country before the European Court of Justice or initiating a dispute-settlement process — with the possibility that either course of action could result in fines.
Brussels’ damning assessment of the proposals was part of a chorus of criticism on Wednesday that included a warning from Irish prime minister Micheál Martin that the bill was “a very serious development” that would damage trust on both sides.
Meanwhile John Major, former Conservative prime minister, added his voice to criticism of Mr Johnson for planning to override the UK’s exit treaty, in what UK ministers admit is a breach of international law.
Sir John said: “If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained.”
One EU diplomat said: “This must be the absolute nadir of four years of negotiations by a country known as the cradle of democracy.”
The three-page analysis by the EU commission’s UK Taskforce warns that, even by just tabling the bill, Britain “is in violation of the good faith obligation” enshrined in its EU withdrawal agreement.
“A breach of the obligations . . . would open the way to the legal remedies available under the Withdrawal Agreement,” the document says. These include initiating proceedings before the ECJ that could lead to Britain facing “a lump sum or penalty payment” if the government did not comply with the ruling. Alternatively, the document says, the EU could embark on a dispute settlement process “which may ultimately also result in the imposition of financial sanctions”.
Despite the anger, Michel Barnier, EU chief negotiator, arrived in London on Wednesday to try to unblock the stalled Brexit trade talks, which have foundered on disputes about fisheries and state aid policy.
Within hours of Mr Barnier’s arrival, business secretary Alok Sharma published a statement intended to set out broad principles over the future of state aid in the UK after Brexit.
Mr Sharma said Brexit would not be used as an excuse to “return to the 1970s approach of picking winners and bailing out unsustainable companies with taxpayers’ money”.
But the statement did not meet Brussels’ key demands for a rigorous legal framework of subsidy control. Mr Sharma said only that the UK would abide by loose World Trade Organization rules and that he would not finalise the new UK regime until next year.
If approved by MPs, the UK internal market bill, published on Wednesday, would allow Britain to unilaterally interpret the Northern Ireland protocol agreed by Mr Johnson as part of the withdrawal treaty agreed with the EU last October.
It includes the crucial phrase “notwithstanding inconsistency or incompatibility with international or domestic law”.
Speaking to MPs during prime minister’s questions, Mr Johnson defended the new bill. “My job is to uphold the integrity of the UK but also to protect the Northern Ireland peace process and the Good Friday Agreement,” he said. “And to do that, we need a legal safety net to protect our country against extreme or irrational interpretations of the protocol.”
Downing Street’s latest attempt to explain its breach of international law — that Mr Johnson did not fully understand what he was agreeing in his deal with the EU last October — is unlikely to impress fellow leaders.
“The treaty was written in a rush and was never meant to be the final agreed text between the UK and the EU,” Number 10 said.
“The withdrawal agreement and Northern Ireland protocol aren’t like any other treaty. It was agreed at pace in the most challenging possible political circumstances to deliver on a clear political decision of the British people and with the clear overriding purpose of protecting the special circumstances of Northern Ireland.”
The internal market bill would allow Britain to insist on no export paperwork for goods moving from Northern Ireland to Great Britain and to restrict the application of EU state aid rules in the case of Northern Ireland.
Ministers also want to take powers to decide which goods travelling from Great Britain to Northern Ireland should be subject to EU tariffs — in other words, those goods “at risk” of moving across the open border into Ireland.
A number of Conservative MPs have strongly criticised the bill and one senior government figure admitted: “We may have to amend it along the way.”
Ministers are considering whether to make clear that the powers in the bill would only be applied in the event of no UK/EU agreement being in place before the end of the Brexit transition period on December 31.
Additional reporting by Sebastian Payne in London and Arthur Beesley in Dublin