The government plans to publish legislation to override the Northern Ireland Protocol, but Sky News understands that the wording has yet to be agreed by cabinet.
The Democratic Unionist Party (DUP) demand that the trade border in the Irish Sea, created by the treaty, be eliminated before they restore shared power to Stormont.
Sources close to the discussion say ministers are concerned that the bill will become ineffective if the government is found to have broken international law.
What is the Northern Ireland Protocol and why is it important?
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 departure of the United Kingdom from the European Union raised the prospect of a hard border between Northern Ireland (the United Kingdom) and the Republic of Ireland (the EU).
To prevent this, the UK government granted 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 in implementing customs and regulatory controls.
Sky News understands the legislation being drafted by the Chancellor liz truss it would effectively remove the maritime border in an attempt to restore power sharing.
There are six key elements:
- A green lane for trusted merchants shipping goods to Northern Ireland and a red lane for goods destined for the Republic of Ireland
- Increased penalties for infringement and smuggling
- Measures allowing companies to produce goods to UK standards in Northern Ireland
- Transfer oversight from the European Court of Justice (ECJ) to UK courts
- Granting Northern Ireland the same VAT cuts as the rest of the UK
- Explicit commitment that the UK will never impose border infrastructure between Northern Ireland and the Republic
The transfer of governance from the CJEU to the UK courts is just one example of where the government could be found to have broken international law.
The debate over the need for protections to ensure passage through parliament casts doubt on the legal advice provided by the attorney general last week.
Suella Braverman, the government’s top legal adviser, approved scrapping much of the protocol with emergency legislation, describing the action as “painfully necessary”.
Irish Foreign Minister Simon Coveney said there was a “landing zone” for the deal if the UK and EU work together and he condemned UK “saber rattling”.
He told Sky News’ Sophy Ridge On Sunday: “Ireland is frustrated too.
“We are dealing with the consequences now, of a decision by the British people, in our own country that has cost us hundreds of millions of euros, which is putting the peace process and its institutions on the island of Ireland at risk.
“So when we focus on frustrations, we need to think beyond Westminster.”