Richard North, 10/09/2020  

Well, now we've seen the United Kingdom Internal Market Bill, we have a better idea of what we're dealing with, although it is not as straightforward as some might think.

Since Brandon Lewis has already admitted that the Bill (when passed into law) will breach international law, in a "very specific and limited" way, there can be no dispute about the basics, and what we appear to be looking at are Clauses 42 and 43, which apply to Northern Ireland.

Clause 42 is intended to give the minister power to disapply or modify export declarations and other exit procedures in relation to goods when moving from Northern Ireland to Great Britain, including "any exit procedure that is applicable by virtue of the Northern Ireland Protocol or otherwise".

Here, having devoted more time to this than I would care, it would seem that the application here will indeed be very limited. As it stands, the Protocol acknowledges the importance of maintaining the integral place of Northern Ireland in the United Kingdom's internal market.

Also allowed for is "unfettered market access" for goods moving from Northern Ireland to other parts of the United Kingdom's internal market, and provisions of Union law made applicable by the Protocol which prohibit or restrict the exportation of goods "shall only be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by any international obligations of the Union".

It is that very last bit which would seem to be relevant although, given that "unfettered access" will apply, it is hard to see when, or under what circumstances and Union provisions will apply.

Clause 43 looks somewhat more serious. It refers to Article 10 of the Protocol, which deals with state aid and can be used to limit "measures supporting the production of and trade in agricultural products in Northern Ireland". And here the Clause allows the Secretary of States to make provision in domestic law for interpreting Article 10, or "disapplying, or modifying the effect of, Article 10".

On the face of it, this would appear to allow a British Minister to overturn a provision of the Protocol – which is an integral part of the Withdrawal Agreement – potentially putting the UK breach of international law.

There can be no doubt that this is the intended purpose of the law. Clause 45 unambiguously states that Sections 42 and 43 (i.e., when they become law) - and any regulations made thereunder – will have effect "notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent".

That, very clearly, puts the UK on the path to a breach of international law. In general terms, we're looking at the Vienna Convention on the Law of Treaties, to which the UK is a party.

Specifically, the UK would be in breach of Article 26, headed: "Pacta sunt Servanda", which states: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith". The UK would also fall foul of Article 27, which states that: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

Here, a more normal circumstance might be that, having agreed a treaty, a party might find a provision of domestic law contradicts it, in which case the treaty provision must take precedence.

I can't think, though, that the UK has ever gone out of its way deliberately to promulgate a law with the specific intention of contradicting a treaty provision. One should never say never, but I can't think of any example where this has been done. The more normal course of action would simply be to abrogate the treaty.

This does put the EU in a rather awkward position – which Pete has explored. The action is extremely provocative but, if the Commission responds sharply, it could find itself being blamed for any adverse outcome.

Some, therefore, see this as part of the end-game posturing – even arguing that it actually brings us closer to a deal. Personally, I don't see it that way. The British government could have made the same point, by way of a formal proposal in the current round of talks, without putting itself potentially in breach of international law.

If the Bill is a tactical ploy, for instance – and it goes through the procedures and becomes law, would the government then repeal it, if it got what it was looking for? And could the ploy even succeed, given that the Withdrawal Agreement is not on the table and Barnier has no mandate to negotiate amendments?

Unsurprisingly, therefore, we are seeing reports that the Commission is considering "legal action", although there can't actually be a breach of international law until the Bill receives Royal Assent and is implemented.

However, there is no doubt that the Commission is perturbed by this action, and a draft working paper is circulating to Member States, expressing the view that the UK Internal Market Bill represents a "clear breach" of the Withdrawal Agreement, which would "open the way to legal remedies".

There is something of a problem here for the Commission as the Agreement has an "exclusivity" provision (Article 168), which states that, in the event of a dispute, the parties "shall only have recourse to the procedures provided for" in the Agreement.

The end point of the procedure is arbitration, with the provision for a lump sum or penalty payment in the event of non-compliance and, in the event that that is not paid, the Commission would be entitled to suspend application of parts of the Agreement (with the exception of citizens' rights).

If it is the intention of the UK to dump the Withdrawal Agreement, however, then manoeuvring the Commission into suspending it hardly seems an appropriate move, and it puts the EU on the back foot as the initiator of the process, after going through the full dispute procedure. Clearly, it was not designed to deal with such an egregious example of bad faith.

The more immediate response might be for the EU to suspend the Future Relationship talks. There are, in fact, emergency talks today, aimed at salvaging some form of agreement, with little expectation of success.

It must be very difficult though for the Commission to deal with No.10 which is currently churning out contemptible gibberish. It talks, for instance, of the Withdrawal Agreement having been signed "at pace", asserting that it had always been intended that "grey areas" in the treaty could be clarified later on.

But these are not grey areas and, as von der Leyen says, the legal principle of pacta sunt servanda is the "foundation of prosperous future relations". She is supported by European Council President, Charles Michel, who adds that the "breaking international law will not create the confidence we need to build our future relationship".

Basically, if the UK government was deliberately setting out to sabotage the talks, it is going the right way about it, forcing the Commission to walk while they maintain a studied air of injured innocence.

With the media focused on Covid-19, Johnson could get away with it in the short-term, if Parliament allows it. But we have probably never been closer to a no-deal, and when the blame game comes round, we all know where to look.

Also published on Turbulent Times.

comments powered by Disqus

Log in

Sign THA

The Many, Not the Few