Brexit's International Law Conundrum: Breaking The Rules?

The UK government's Internal Market Bill, which deals with trade between Northern Ireland and Great Britain, has been criticised for potentially breaching international law. The bill would allow the UK to override parts of the Brexit withdrawal agreement, an international treaty, which could break the government's international obligations. This has caused controversy, with some arguing that any breach of international law, regardless of its extent, is unacceptable. The European Union has warned the UK that keeping to agreements is essential for future relations.

The Internal Market Bill

The bill was controversial as it gave the government the power to change aspects of the legally binding EU withdrawal agreement. This included the Northern Ireland Protocol, which was designed to avoid a hard border on the island of Ireland. The bill stated that ministers could have the power to disapply previously agreed rules relating to the movement of goods, including any under the Northern Ireland Protocol. It also said ministers could provide financial assistance to any person or company, which could mean overriding state aid rules set out in the Withdrawal Agreement.

The bill was criticised by some senior Conservatives and all five living former prime ministers at the time: Theresa May, Sir John Major, Tony Blair, Gordon Brown and David Cameron. May argued that the bill would damage "trust in the United Kingdom" and tarnish" the country's reputation. Labour and some Conservative MPs also raised concerns over the bill's legal implications.

Despite the opposition, MPs initially backed the bill by 340 votes to 263, with the government arguing that it contained vital safeguards to protect Northern Ireland and the rest of the UK. However, the government later agreed to amend the bill so that Parliament would have a vote before using the powers involved in breaking international law.

The Northern Ireland Protocol

The protocol was designed to address the unique circumstances of the island of Ireland, where the border between Northern Ireland and the Republic of Ireland became the only land border between the UK and the EU. The aim was to avoid a 'hard border' that could incite conflict and destabilise the peace established by the Good Friday Agreement.

Under the protocol, Northern Ireland remains in the EU single market for goods, while the rest of the UK does not. This arrangement allows for the maintenance of an open border between Northern Ireland and the Republic of Ireland, but creates a de facto customs border in the Irish Sea between Northern Ireland and Great Britain.

The protocol includes provisions for:

• Unfettered access for Northern Ireland goods to the rest of the UK market.
• Customs duties on goods moving between Northern Ireland and Great Britain, depending on their intended destination and risk of onward transfer to the EU.
• The application of EU rules on state aid for goods related to Northern Ireland.
• Common travel area between the UK and Ireland, allowing free movement of citizens between their jurisdictions.
• Protection of human rights and equality measures, including specific EU anti-discrimination measures.
• A mechanism for democratic consent in Northern Ireland, allowing the Northern Ireland Assembly to decide on the continuation of the protocol arrangements.

In 2020, the UK government proposed the Internal Market Bill, which included measures that would have overruled parts of the Northern Ireland Protocol. This led to accusations that the UK was attempting to breach international law and unilaterally change a recently agreed international treaty. The controversial clauses were later withdrawn following an "agreement in principle" between the UK and the EU on issues such as border control and state aid.

The UK Withdrawal Agreement

The agreement covers matters such as money, citizens' rights, border arrangements, and dispute resolution. Notably, it includes a transition period during which the UK remained in the single market to ensure frictionless trade until a long-term relationship was agreed upon. The transition period lasted until 31 December 2020, with a provision for extension by mutual consent. During this time, EU law continued to apply to the UK, and the UK continued to pay into the EU budget, but the UK was not represented in EU decision-making bodies.

The Withdrawal Agreement also includes a protocol on Northern Ireland/Ireland, often referred to as the "Irish backstop". This protocol aims to prevent a hard border in Ireland after the UK's withdrawal from the EU. It allows Northern Ireland to remain out of the EU Customs Union de jure but not de facto, and provides for a unilateral exit mechanism for the Northern Ireland Assembly.

The agreement was ratified by the UK Parliament on 23 January 2020 and by the European Parliament on 29 January 2020. The United Kingdom's withdrawal from the Union took effect at 11 p.m. GMT on 31 January 2020, with the Withdrawal Agreement entering into force simultaneously.

The UK's international obligations

The UK government has admitted that its plan to reinterpret the special Brexit arrangements for Northern Ireland will break international law. Brandon Lewis, the Northern Ireland Secretary, told the House of Commons that the government's Internal Market Bill would 'disapply' or override parts of the Brexit withdrawal agreement, specifically the Northern Ireland Protocol. This protocol was designed to ensure that border checks would not be imposed in Ireland, even in the event of a no-deal Brexit.

The Internal Market Bill would give UK ministers the power to override rules on checking goods travelling from Northern Ireland to other parts of the UK, and change articles on state aid. It would also allow ministers to interpret rules on financial support for businesses in Northern Ireland, stating that this should not be done in accordance with the case law of the European Court of Justice.

The UK government has argued that these measures are necessary to prevent disruption to trade between Northern Ireland and the rest of the UK, and that they would only come into force if the UK and the EU failed to reach a trade deal. However, the EU has warned that breaking international agreements is unacceptable and would put future relations at risk.

The UK's proposed breach of international law has been criticised by legal experts, politicians, and business leaders. Dr Holger Hestermeyer from King's College London stated that there is no such thing as a "partial" breach of international law. Theresa May, the former prime minister, questioned whether the UK's reputation as a trustworthy nation was being put at risk. The president of the Law Society of England and Wales, Simon Davis, emphasised the importance of the rule of law in attracting international business and maintaining faith in the UK's justice system.

The rule of law

The controversy surrounding the Internal Market Bill lies in its potential conflict with the Brexit withdrawal agreement, particularly the Northern Ireland Protocol. The withdrawal agreement, now an international treaty, includes Article 4, which stipulates that the provisions of the treaty take precedence over UK domestic law. By introducing measures that contradict this agreement, the UK government risked breaching its international obligations.

Brandon Lewis, the British minister responsible for Northern Ireland, acknowledged that the Internal Market Bill would break international law but characterised it as a "very specific and limited" breach. Legal experts, however, challenged the notion of a "partial" breach, arguing that breaking the law, even in a limited way, is still a violation. Dr Holger Hestermeyer from King's College London emphasised the unprecedented nature of a government announcing its intention to breach international law before parliament.

The UK bill sought to grant ministers powers to override specific aspects of the Northern Ireland Protocol, such as rules on checking goods travelling between Northern Ireland and the rest of the UK, as well as provisions related to state aid. This unilateral attempt to change an international treaty drew criticism from the EU, which emphasised the importance of upholding agreements as a foundational aspect of diplomacy.

The controversy surrounding the Internal Market Bill and its potential breach of international law underscores the complexities and challenges associated with the Brexit process. It highlights the tensions between domestic political considerations and international legal commitments, with potential implications for the UK's standing on the world stage.

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