Rishi Sunak faces a Commons clash with Eurosceptic Tory backbenchers after they published a damning verdict of his Brexit deal.
The European Research Group (ERG) has accused the Prime Minister of making “misleading” claims about the upsides of the Windsor pact with the EU.
In a legal paper drawn up by a “star chamber” of lawyers and MPs, it said that his claim to have fundamentally rewritten the Northern Ireland Protocol is “not correct”.
Ahead of a crunch Commons vote on the pact on Wednesday, the ERG outlined the key areas where it says the Government’s rhetoric does not match reality.
Here are seven flashpoints where eurosceptics plan to take Downing Street to task over whether its claims about the deal really stack up.
The deal’s legal status
Mr Sunak said when the deal was signed in February that “it does what many said could not be done” by securing “legally binding changes to the Protocol treaty itself”. He added at a press conference with Ursula von der Leyen: “Together we have changed the original Protocol.”
In its report the ERG said that the deal “makes only limited legal changes” to the Protocol and that “claims this amounts to a new framework or structure are not correct”. It added that “the Northern Ireland Protocol remains intact” and “the UK cannot hold the EU to its commitments which will ultimately be governed by the ECJ [European Court of Justice]”.
The application of EU laws
In its description of the deal the Government said it “establishes new arrangements in which UK, not EU, standards and regulations apply for essential retail trade and tax”. It added that the framework will “disapply over 1,700 pages of EU law in the process, and the ECJ oversight which comes with it”. Downing Street has acknowledged that some EU law will continue to be enforced in Northern Ireland.
The ERG’s star chamber said there was “no evidence” for the claim that 1,700 pages of EU law had been disapplied nor would they be, “contrary” to Downing Street’s claims”. “Northern Ireland will remain subject to the power and control of EU law,” it said. The report added: “Not a single EU Single Market law has been removed from Northern Ireland. At most there has been ‘keyhole’ surgery within the scope of these laws.”
The Stormont Brake
No10 has heavily sold the Stormont Brake, which will give Stormont the possibility to veto new EU laws from applying in Northern Ireland, as a big upside of the deal. It says the mechanism amounts to an “ability for the Assembly to block new EU goods laws as they come down the pipe if Assembly Members are not happy with them”. Downing Street has said the brake will give the UK “control over dynamic alignment”.
But in its most stinging criticism the ERG said that the number of conditions attached to using the brake means “it is likely to be useless in practice”. Its report points out the mechanism only covers “a limited range” of EU laws relating to goods and not those in areas like state aid, tax and customs. The star chamber adds there is a “good faith” threshold to apply the brake otherwise “adjudicators could find against the UK and reapply the law”.
Scrapping customs checks
The other major selling point is the creation of a “green lane” which will allow registered firms to ship goods from Great Britain to Northern Ireland virtually red tape free. The Government says this means both “burdensome customs bureaucracy” and “routine checks and tests” will be scrapped. It insists that “the only checks will be those required to stop smugglers and criminals”.
But the ERG has warned that the fact that companies have to sign up to a trusted trader scheme to access the green lane means many smaller businesses are set to miss out. As a result, it says, “full customs formalities will remain for many businesses” which will “complicate Northern Ireland firms’ supply chains”. It also warned of businesses making “precautionary usage” of the red lane, which will attract full checks, to avoid falling foul of the complex rules.
Northern Ireland’s place in the Union
At the heart of the row over the Protocol, and its rejection by the DUP, is the fact that Unionists feel the creation of the Irish Sea border and imposition of EU law threatens Northern Ireland’s place in the UK. Mr Sunak addressed this head on when agreeing the deal, arguing: “I can say with conviction that it does address the issues that were raised, that it does secure Northern Ireland’s place in the Union and safeguard sovereignty.”
The star chamber says that despite the claims the agreement still amounts to Northern Ireland being subject to “different treatment under a treaty with a foreign power”. As a result, it says, the rights of the Province’s people to enjoy the same trading terms as the rest of the UK under the 1800 Act of Union have not been restored. Unionists previously brought forward a court case arguing the Protocol breaches the act, but it failed.
The supply of medicines
One of the biggest early problems created by the Protocol was that it disrupted the supply of medicines from Great Britain to Northern Ireland. The Government says the new deal means that it will be the UK regulator that approves drugs for use in the Province with “no role” for the European Medicines Agency”. It adds: “That fully protects the supply of medicines from Great Britain into Northern Ireland.”
But the ERG has warned that the UK’s regulator, the MHRA, will still be subject to EU laws when authorising some drugs for use in Northern Ireland. It also warns that Brussels could pull the plug on this part of the deal at any point. “The concession could be removed by EU legislation or withdrawn under the legislation if the UK is judged to have contravened its term.”
Shackling the UK to EU rules
The Government insists that the agreement will not affect Britain’s ability to diverge from EU rules in future, a key reason why many MPs supported Brexit. One of Eurosceptics’ big objections to the Protocol was that it effectively made divergence impossible, because any change to rules in Great Britain would create barriers with Northern Ireland and split the UK. Ministers insist that under the agreement “there are opportunities to do things differently across the UK to drive growth and prosperity”.
But the ERG has expressed fears over the fact the deal effectively bakes in the existing Protocol and keeps Northern Ireland following EU rules. It says this means that “in practice the Windsor deal will incentivise the UK and its future governments to copy future EU rules, and adjustments to existing rules, so as to avoid the imposition of new checks across the Irish Sea”.