Liz Truss’s threat to ‘tear up’ the Northern Ireland protocol is not what it seems

Truss has a good case for invoking Article 16, but she and Johnson seem keen for the EU side (and Joe Biden) to believe that the UK is threatening to break international law, writes John Rentoul

The foreign secretary appears to be threatening to act within the terms of the treaty (Getty)

The leak of parts of the legal advice given by Suella Braverman, the attorney general, to the government is embarrassing for Boris Johnson because it reveals that he is threatening to abide by international law. This is awkward because his negotiating strategy with the EU seems to involve threatening to “tear up” the Northern Ireland protocol, unilaterally repudiating a treaty, and daring the EU to do its worst.

But the wording of Braverman’s advice suggests that what Liz Truss, the foreign secretary, is actually threatening to do is to invoke Article 16 of the protocol, which allows either side to suspend some of its rules in case of serious problems.

The attorney general’s advice claims that “trade is being diverted” and that the protocol is causing “societal unrest”. Those are two of the conditions laid down in Article 16 that allow either side to take emergency action. This suggests that what Truss is proposing is to invoke the emergency clauses of the protocol – that is, to act within the terms of the disputes procedure in the treaty.

“Societal unrest” is unconvincing at this stage, although it is wise to be careful about the return to violence, but there is no doubt that trade has been diverted significantly, from east-west (Northern Ireland to the rest of the UK) to north-south (Northern Ireland to the Republic). So Truss has a good case for invoking Article 16, but she and Johnson seem keen for the EU side (and Joe Biden) to believe that the UK is threatening to break its international obligations.

Presumably, this is because the threat to invoke Article 16 has so far failed to shift the EU in the negotiations over the operation of the protocol, so it is felt that something stronger – the Johnson Madman Theory – is needed for extra leverage. Thus the government fails to contradict reports that it intends to break international law, but if you attend carefully to Johnson’s and Truss’s words, they never actually say it.

This has echoes of the hoo-ha over the prorogation of parliament in 2019, which turned out to be unlawful after it was done, although the government’s legal advice was that it was fine. It didn’t actually achieve anything, because parliament had already passed the Benn Act, which prevented a no-deal Brexit; all it did was drive Johnson’s opponents into a frenzy of indignation and persuade Jo Swinson, leader of the Lib Dems, that an election was the way to stop Brexit.

It is hard to see what such a tactic will achieve in negotiations with the EU, though, because its effect seems to have been to make Maros Sefcovic, the EU negotiator, less likely to compromise, and EU leaders less likely to change his negotiating mandate. Especially as they can work out when Johnson and Truss are bluffing.

Yours,

John Rentoul

Chief political commentator