Thread by @mdouganlpool

A serious question for my UK law colleagues:

By refusing properly to implement the NI Protocol, is HMG acting in breach not only of EU-UK withdrawal agreement as matter of international law; but also of EU (Withdrawal) Act 2018 as matter of domestic UK law?

Here's why I wonder:

EU (Withdrawal) Act 2018 - as amended by EU (Withdrawal Agreement) Act 2020 - makes provision for EU-UK withdrawal agreement, including NI Protocol, to take full effect under domestic law. Protocol provisions thus have direct legal effects in UK, with force of primary legislation

True: Act also creates various delegated ministerial powers relating to Protocol. But I'm not sure those are very relevant to Johnson Government's conduct. And in any event, surely powers should only be for purpose of implementation - not to contravene/frustrate Protocol itself.

Which raises the question: is the UK Government's failure to respect the binding provisions of the Protocol / its adoption of measures that do not comply with Protocol's legal duties, actionable under UK (not just international) law, i.e. by way of judicial review...

I ask because (since I finished my book and moved on to new stuff) I haven't spent any serious time following the detailed UK legal developments. But I'm not aware of any changes to primary legislative framework. So the analysis feels like it is at least worth further exploration

... and the answer is potentially very important. This debate is conducted as if Johnson's illegality were only of concern to international law. Yet if HMG's deliberate refusal to comply with Protocol is treated as direct breach also of UK law itself = a different kettle of fish.

In particular: those parties who support Protocol (e.g. Alliance in NI) and / or those NGOs who defend rule of law (e.g. Good Law Project) could bring Johnson Government to court for breaching binding obligations under UK law itself. Not just left to international law / EU action