The Tory politics behind the wrangling over Northern Ireland Brexit bill

British foreign secretary Liz Truss was braced for an angry European response this week when she set out legislation to rip up Boris Johnson’s 2020 Brexit deal, unilaterally rewriting trade rules for Northern Ireland.

But some of the most venomous comments came from her own party, with senior moderate Tories claiming she had “pandered” to Eurosceptic MPs, picking a fight with Brussels to further her party leadership ambitions.

Simon Hoare, Tory chair of the House of Commons Northern Ireland committee, told the Financial Times: “Truss realised she didn’t have the personality or skills to negotiate. She prefers the sledgehammer.”

With the EU threatening legal reprisals against London and Simon Coveney, Ireland’s foreign minister, saying Truss’s tactics marked a “new low” in the Brexit saga, some MPs were asking how it had reached this point.

Truss had not originally planned this. In January, she invited Maroš Šefčovič, European Commission vice-president, to her Chevening country retreat, convinced a deal was possible to fix problems with the so-called Northern Ireland protocol that governed the region’s trading relations with both Great Britain and the EU.

The weekend went well but it soon became clear that while he could offer some technical fixes on the ground Šefčovič had no mandate to change the legal text.

Liz Truss bumps elbows with European Commission vice-president Maroš Šefčovič during a meeting at Chevening in January © Ben Stansall/AFP

From an EU point of view, why should he? It had been agreed by Johnson less than two years ago and French president Emmanuel Macron was among those insisting the British premier could not renege on the deal.

By early 2022, as the partygate scandal engulfed Johnson, domestic politics began pushing Truss towards taking a much tougher stance towards addressing the impasse over the protocol.

The DUP, the biggest unionist party in Northern Ireland, warned it would not rejoin the region’s power-sharing assembly until the protocol — which created an internal UK trade border in the Irish Sea — had been rewritten.

Meanwhile, the European Research Group of hardline pro-Brexit Tory MPs, which had helped to break the premiership of Theresa May in 2019 and install Johnson in her place, stepped up its calls for unilateral action.

Truss, a Remainer in the 2016 EU referendum, proposed in late March — with her eye on Johnson’s slipping crown — unilateral legislation to rewrite key parts of the Brexit treaty.

“The ERG was driving it,” said one former Tory cabinet minister. Johnson, also relying on ERG support to keep him in Downing Street, could not afford to be outflanked by a leadership rival and so seized on the idea.

Previously, the plan had been to use the protocol’s Article 16, a temporary override mechanism which could be used by the EU or UK in the event of societal or political unrest, to resolve issues.

An anti-protocol sign near Larne port, Northern Ireland.
An anti-protocol sign near Larne port, Northern Ireland. The protocol has created an internal UK trade border in the Irish Sea © Liam McBurney/PA

But the ERG wanted a permanent solution. For the Eurosceptics it was not just about fixing the border friction but also — as they saw it — “completing” Brexit: ending all remaining EU sway over Northern Ireland.

“Boris recognised that Article 16 didn’t actually solve the problem,” said one senior ERG MP. “For example, it could not end the jurisdiction of the European Court of Justice in Northern Ireland.”

Downing Street said this week that the legislation provided a “stable solution”, including reducing the role of the ECJ to a bare minimum and removing checks on goods from Great Britain destined for Northern Ireland’s shops.

Truss said she spoke to all wings of the Tory party as she prepared the legislation but her critics claim the ERG, battle-hardened after years of Brexit skirmishes, were given special treatment.

“By Sunday evening, the bill was on version 16(a),” Hoare said. “The ERG had seen all previous 16 versions, I had seen none.”

Lord David Frost, former Brexit secretary, Martin Howe, a pro-Brexit lawyer, John Bew, an Ulsterman and adviser to Johnson, and Bernard Jenkin, a senior Tory MP, all played a key role in shaping the bill.

But by the time Truss presented the latest draft to the “global Britain strategy” meeting of cabinet ministers last week, even Johnson chided his foreign secretary for giving too much ground to the ERG.

DUP leader Sir Jeffrey Donaldson
DUP leader Sir Jeffrey Donaldson has to contend with hardliners within his own party © Liam McBurney/PA

Chancellor Rishi Sunak, levelling up secretary Michael Gove and international trade secretary Anne-Marie Trevelyan were among those warning that the draft bill would make a negotiated settlement with the EU near impossible, according to people briefed on the meeting.

In the event, Johnson ordered some watering down, including leaving the ECJ with a residual role in Northern Ireland — in some circumstances — in advising British courts on issues of EU law.

The ERG’s demands for “sunset clauses” to turn off parts of the protocol automatically were also removed, along with a suggestion that Northern Ireland should apply only UK rules for goods, instead of a dual regulatory approach.

Others at the cabinet committee meeting pointed out that there was not even a commitment from the DUP that it would rejoin the Stormont assembly if the bill was published.

“It was agreed there should be no second reading of the bill [its decisive House of Commons stage] until the DUP had given those assurances,” said one person briefed on the discussion.

So far, DUP leader Sir Jeffrey Donaldson, who has to contend with hardliners within his own party, has not given such a promise. A second reading debate, which many Tory MPs had expected on Monday, is on hold.

The ERG’s “star chamber” of lawyers is this week scouring the text to make sure it meets the group’s requirements on sovereignty. “If it doesn’t, we’ll vote against it,” said one Tory Brexiter MP.

Meanwhile, the One Nation group of moderate Tory MPs has — to the relief of Truss and Johnson — agreed not to vote down the legislation. “We’re not ‘happy’ exactly, but content for now,” said one member of the group, arguing the ERG had not secured everything it wanted.

Truss’s allies said that the fact the One Nation group was broadly on side, while the ERG was reserving its judgment, was “proof” that the Eurosceptics had not received a “sweetheart deal”.

Privately, many moderate Tory MPs are relying on the House of Lords to amend and delay the bill — probably for months.

“It has been suggested we’ll lose the whip,” admitted one MP, who said he would probably be “out of London” when the bill reaches the House of Commons, rather than voting against it and being booted out of the party.