Fresh fears have been raised within the government that the UK would breach international law if it goes ahead with plans to tear up the Northern Ireland Protocol.
In leaked correspondence, a senior legal adviser warned it could not be “credibly” argued that there was no alternative to unilaterally canceling the Brexit deal.
It would be “very difficult” for the government to make that point, the adviser to ministers said, according to the PoliticsHome website that saw the correspondence.
Separately, it is believed that James Eadie, the government’s independent lawyer on domestic legal matters, was not consulted on whether a bill would breach international law.
Sky News reported that Sir James indicated he thought it would be very difficult for the UK to defend its unilateral decision as legal – while a former minister said The Independent it was “unprecedented” not to consult the First Treasury Board on such a matter.
Boris Johnson denied in the Commons that Sir James had not been consulted, telling MPs: ‘The information this morning is not correct’. His official spokesman later confirmed the Prime Minister was referring to Eadie, telling reporters it was “not correct to say he was not consulted in this process”.
However, the spokesman was unable to say whether Sir James had been asked to comment on the merits of the government’s proposed course of action.
Legislation is expected within days to remove trade border checks in the Irish Sea, which Boris Johnson has agreed is the price for leaving Northern Ireland within the EU single market and the territory of the Customs Union.
However, it will go much further than border controls – also targeting the European Court of Justice’s role in overseeing disputes and aiming to restore the UK’s ability to decide VAT rates.
Suella Braverman, the attorney general, concluded the legislation is legal, arguing that the greatest need is to protect the Good Friday Agreement amid unionist opposition to the protocol.
But she rejected calls to publish her legal opinion. The EU argues that the protocol itself protects the 1998 agreement by avoiding a land border in Ireland.
The legislation is also under threat in the Commons from Tory MPs who oppose it and will now be tempted to use it as a flashpoint to boost the chances of ousting the PM.
Jesse Norman, the former Treasury minister who called on Mr Johnson to quit, called it ‘economically very damaging, politically reckless and almost certainly illegal’.
Brussels has threatened a trade war and may even tear up the Brexit trade deal in retaliation – but will likely wait for the bill to pass, if it does.
The bill is expected to introduce a ‘dual regulatory regime’ which would allow goods produced in Britain to enter Northern Ireland and vice versa unchecked.
But, in a move that will stoke doubts about the plan, the government will likely ask companies to figure out for themselves how it can be put into practice.
The EU insists it has tabled proposals to ease the burden of checks and points to the UK’s refusal to sign up to common veterinary rules to reduce the need for much red tape
Last month, Mr Johnson admitted he had signed on to the trade barriers created by the Northern Ireland Protocol – while saying he hoped the EU would not ‘enforce’ them.