Rishi Sunak must defy Brexit ‘puritans’ to get protocol deal, top lawyers warn

Exclusive: Former EU court lawyers warn that the ongoing row damages UK’s reputation as a negotiating partner

Rishi Sunak should defy the “purist ideology” of hardline Brexiteers to solve the row over the Northern Ireland protocol and other post-Brexit problems, top lawyers have argued.

In a paper shared with The Independent, former EU court lawyers said the prime minister had to show “political courage, in the national interest, to displease a faction of Brexit purists”.

Eleanor Sharpston KC, former advocate general at the Court of Justice of the European Union, and Ian Forrester KC, a former judge at the same EU court, said it was time for “pragmatic good sense” to prevail in order to repair ties with Brussels.

The Tory government’s approach to the protocol row – including the threat to unilaterally rip up the agreement – was “an astonishing manifestation of bad faith” and “deeply damaging to the UK’s future credibility as a negotiating partner”, they warned.

The senior lawyers also criticised the planned “bonfire” of retained EU law, arguing that it would be better to focus “our regulatory effort on resolving problems ... Brexit has created”.

The legal paper, commissioned by Gina Miller, leader of the True and Fair Party, said greater cooperation with the EU was needed to fix ongoing problems – including some of the red-tape issues suffered by small businesses and touring musicians.

“The UK’s political leaders and key players now require the political courage, in the national interest, to displease a faction of Brexit purists,” wrote Ms Sharpston and Mr Forrester.

The lawyers added: “It hurts us to see the unnecessary damage currently being caused by the way Brexit is being implemented. Small businesses and ordinary people on both sides of the Channel are suffering in multiple ways. It is not their fault and it is not unavoidable.”

Ms Miller – the campaigning lawyer who launched a legal challenge against the triggering of Article 50 in 2016 – said reversing Brexit “will not be possible for at least a generation”.

Arguing that Tory Brexiteers should not “oversee” the UK’s future outside the bloc, she added: “As this important paper shows, their ideological puritanism trumps any pragmatic common sense, dooming the country to a worse Brexit than even the staunchest Remainer could have ever envisaged.”

It comes as hopes rise of a compromise deal to ease protocol checks, after talks between UK and EU officials intensified in recent weeks.

One British official told The Sunday Times “We have a deal” and suggested that Brussels was prepared to accept a “green lane” that would scrap physical checks for a proportion of goods sent from Great Britain to Northern Ireland.

However, No 10 played down the idea of a major breakthrough, insisting that “scoping” talks were continuing. The DUP, together with Tory MPs in the European Research Group, have warned that they will not accept anything that compromises Northern Ireland’s place in the UK.

Meanwhile, Mr Sunak’s government has suggested that the refusal of Joe Biden’s administration to engage in talks over a trade deal with Britain is to blame for the failure to meet a Tory manifesto promise.

In a written response to Labour, trade minister Nigel Huddleston said the failure to achieve a goal of 80 per cent of UK trade being covered by free trade agreements within three years was partly down to the US president’s “different approach”.

Mr Huddleston said: “When the government adopted this target, the US was in ongoing talks on a free trade agreement with the UK, but has since taken a different approach to [free trade agreement] talks under the Biden administration.”