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The UK prepares to breach its International Law obligations under the UK/EU Withdrawal Agreement.


The UK Government is prepared to act in breach of International Law. It has introduced into the UK Parliament a bill which will give UK Ministers power to make secondary legislation in flagrant breach of its obligations under the Withdrawal Agreement between the UK and EU.




The UK Secretary of State for Northern Ireland has expressly said in Parliament that the bill is intended, in specific circumstances, to allow the UK Government to contravene its international obligations. It raises serious questions about whether the UK, at one time a strong proponent of the rule of law and the international legal order, has become an unreliable international partner under Boris Johnson’s Government.

The UK Internal Market Bill (“the Bill”) is as a whole intended, in the light of Brexit and the repatriation from the EU of several law-making powers to the devolved administrations in Scotland, Wales, and Northern Ireland, to ensure that the UK internal market functions seamlessly.

Ironically, the Bill introduces into the so-called UK internal market the EU concept of mutual recognition, as well as a set of provisions on non-discrimination. The application of these concepts is beyond the scope of this article. But the Bill is likely to cause a major dispute with the Scottish Government, with unquantifiable consequences for the unity of the UK.

Context

The basic facts which are relevant to the arguments are (briefly and non-exhaustively)as follows:
A. The Northern Ireland Protocol agreed by the UK and EU (“the Protocol”) is part of an international agreement (the Withdrawal Agreement) which the UK has signed, ratified, and implemented into UK law by virtue of the EU (Withdrawal Agreement) Act 2020.

B. Inter alia, Article 5 of the Protocol provided for customs duties for goods brought into Northern Ireland from elsewhere in the UK if the goods are “at risk of subsequently being moved into the Union”. The Protocol also required the application of some EU Single market rules in Northern Ireland. This kind of mechanism, which will be underpinned by rules agreed in the EU/UK Joint Committee, will keep open the NI/Ireland border and will safeguard the Good Friday Agreement.

C. Article 4 of the Withdrawal Agreement also stated that the provisions of the Withdrawal Agreement and of EU Law (to the extent made applicable by the Agreement) shall produce the same legal effects as those which they produce in the EU (Article 4 of the Withdrawal Agreement). The principle of direct effect is expressly preserved only in respect of provisions of the Withdrawal Agreement which are capable of meeting the conditions for direct effect in EU Law.

D. That inevitably meant that there would be fiscal and non-fiscal barriers to trade across the Irish Sea although the UK Prime Minister frequently asserted the contrary. It is not clear whether he understood what he had negotiated. But the UK now says that it believes that the EU will seek to prevent the movement of goods between Great Britain and Northern Ireland. Therefore, the UK needs a safety net to prevent the EU from imposing an internal border between Great Britain and Northern Ireland.

E. Nothing in the Protocol was to prevent the UK from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the UK Internal Market (article 6).

F. Subject to a few exceptions, the EU’s state aid rules were agreed to apply to the UK in respect of measures that affect trade between Northern Ireland and the Union which are subject to the Protocol (Article 10 of the Protocol).

G. Under the Bill, clause 41 provides for unfettered access to the UK Internal Market for Northern Ireland goods. The clause prevents the exercise of administrative functions if they would result in certain kinds of NI/Great Britain border checks. But it does not prevent the exercise of a function that is necessary to secure compliance with the UK’s international obligations.

H. Clause 42 of the Bill will permit UK Ministers to make regulations on the application of exit procedures to goods moving from Northern Ireland to Great Britain. This includes disapplying or modifying an exit procedure agreed in the Protocol.

I. Clause 43 of the Bill will permit Ministers to make provision for the purposes of domestic law in connection with the state aid provisions of Article 10. This includes disapplying or modifying Article 10 of the Protocol, including its provisions on following, in respect of state aid, the case-law of the Court of Justice, or relevant legislative acts of the EU.

J. Clause 45(1) of the Bill expressly states: “ the following [including clauses 42 and 43] shall have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.”

K. Clause 45(2)(a) of the Bill expressly states: “regulations under section 42 (1) or 43(1) are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law”.

L. In effect, Clause 45(2)(b) of the Bill sets aside the right to rely on direct effect to the extent that that would not be compatible with regulations under clause 42 or 43 (or sections 42 or 43, which the clauses will become upon enactment of the Bill). This is achieved by setting aside section 7C of the European Union (Withdrawal ) Act 2018, inserted by section 26 (2) of the European Union (Withdrawal Agreement) Act 2020. Section 7C concerns the interpretation of the Withdrawal Agreement.
 

Breach of International Law


 
M. Clause 45 of the Bill is contrary to the Withdrawal Agreement and in breach of International Law. Why?

N. It is not legally possible for the UK Government unilaterally to amend an international treaty unless the treaty provides for such a power. There is no such power in the Withdrawal Agreement.

O. There is therefore a legal obligation on the UK to comply with its treaty obligations. But the UK Government states in a brief written explanation of its position that the UK Parliament has the right to assert its sovereignty through a national act of parliament.

P. But Article 26 of the Vienna Convention on the law of treaties is perfectly clear: “ every treaty in force is binding upon the parties to it and must be performed by them in good faith”. Article 27 is also clear: “ a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

Q. A failure to comply with international obligations can be enforced in a variety of ways. Specifically, the Withdrawal Agreement provides for a dispute resolution mechanism. The EU has asked the UK to withdraw the Bill by 30 September. The UK has refused to do so.

R. in any event, there are constitutional limitations on UK Ministers. While the UK has an unwritten constitution. Ministers must follow the rules in the Ministerial Code, most recently endorsed by Mr Johnson himself in August 2019: “ The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life”.

S. UK Ministers may argue that there is no breach of International law unless the power is in due course exercised. This argument is, in my view, sophistry. Indeed it would be odd to take such a power if the UK Government had no intention of using it. The UK may also argue that the threat of enactment of clause 45 is a legitimate ploy to adopt in the negotiations.
 
On the night of 14 September, the House of Commons voted in favour of the principle behind the Bill ( at so-called Second Reading of the Bill) by a majority of 340 votes to 263. Some Conservative MPs abstained from voting or voted against it because they were very concerned about a breach of International Law. It is a measure of the nationalist fervour in the House of Commons that a majority of MPs were prepared to contemplate contravening the rule of law.
 
The consequences of the UK Parliament’s enacting clause 45 will not end with the final exit from the EU. It is very doubtful whether the EU and Member States’ officials and ministers can now be confident that a Johnson-led UK Government will honour its Brexit obligations. That is a serious indictment of the UK. The UK’s high reputation for acting in accordance with the rule of law is at serious risk.
 
The former UK Prime Ministers, Tony Blair and Sir John Major, said on 13 September: “ As the world looks on aghast at the UK - the word of which was once accepted as inviolable - this government’s action is shaming itself and embarrassing our nation”.
 

 

Christopher Muttukumaru CB DL

Chair, International Committee, FIDE and consultant to Eversheds Sutherland (International) LLP. The views expressed in this article are the author’s alone.