The government is planning to publish legislation to override the Northern Ireland Protocol, but Sky News understands the cabinet has still not agreed the wording.
The Democratic Unionist Party (DUP) are demanding the trade border in the Irish Sea, created by the treaty, be removed before they restore power sharing at Stormont.
Sources close to the discussion claim ministers are concerned the bill could be rendered ineffective if the government is judged to have broken international law.
Explainer:
What is the Northern Ireland Protocol and why does it matter?
Given the obvious potential for resistance in parliament, they may be forced to include protections, meaning any action must be consistent with the Withdrawal Agreement.
The UK’s exit from the European Union raised the prospect of a hard border between Northern Ireland (the UK) and the Republic of Ireland (the EU).
To avoid this, the UK government conceded on a trade border in the Irish Sea – between Northern Ireland and GB – but the unionists felt betrayed.
Under pressure from the DUP, the UK government has repeatedly accused the EU of not showing enough flexibility when implementing customs and regulatory checks.
Sky News understands the legislation being drawn up by Foreign Secretary Liz Truss would effectively remove the sea border in a bid to restore power sharing.
There are six key elements:
- A green lane for trusted traders transporting goods to Northern Ireland and a red lane for products destined for the Republic of Ireland
- Increasing penalties for infringement and smuggling
- Measures enabling firms to produce goods to UK standards in Northern Ireland
- Transferring oversight from the European Court of Justice (ECJ) to UK courts
- Granting Northern Ireland same VAT cuts as the rest of the UK
- Explicit pledge that the UK will never impose border infrastructure between Northern Ireland and the Republic
The transfer of governance from ECJ to UK courts is just one example of where the government could be deemed to have broken international law.
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The debate about the need for protections to secure passage through parliament casts doubt on the legal advice given by the attorney general last week.
Suella Braverman, the government’s chief legal adviser, approved scrapping large parts of the protocol with emergency legislation, describing the action as “painfully necessary.”
Ireland’s Foreign Minister Simon Coveney said there was a “landing zone” to agreement if the UK and EU work together and he condemned the UK’s “sabre rattling”.
He told Sky News’ Sophy Ridge On Sunday programme: “Ireland is also frustrated.
“We are dealing with the consequences now, of a decision by the British people, on our own country that’s cost us hundreds of millions of euro, that is risking the peace process and its institutions on the island of Ireland.
“So where we focus on frustrations, we need to think beyond Westminster.”