Threat to Northern Ireland Protocol could be a dangerous breach of national and international obligations
By Dr John Stanton
In the autumn of 2019, Boris Johnson triumphantly announced that a Brexit deal was done. Agreement had been reached with the relevant parties on the details surrounding the UK’s departure from the European Union.
A fundamental part of that agreement was a feature known as the “Northern Ireland Protocol”. Designed, in effect, to avoid the creation of a hard border between Northern Ireland and the Republic of Ireland, the protocol would see EU customs rules remaining in force in Northern Ireland, meaning that goods could pass across the Irish border with no checks.
Of course, the effect of such an arrangement is essentially to create a customs border between Great Britain and Northern Ireland. “[I]n order to comply with EU requirements, some checks will be needed on certain goods entering Northern Ireland from Great Britain (England, Scotland and Wales) - creating a regulatory and customs border in the Irish Sea” (BBC, 2020). It was a contentious part of the Brexit deal, dominating political discourse throughout the autumn and winter of 2019 and 2020.
It was, though, seen (by some, at least) as a necessary part of striking a deal whilst also protecting measures, introduced in the late 1990s, designed to ensure peace in the region in light of historic troubles on the question of Irish unity.
The deal was formally signed a few months later, “Brexit”, taking effect from 31st January 2020. The Agreement, itself the product of intense negotiation, creates international obligations for both the UK and the EU going forward to ensure smooth working relations in the years and decades to come.
Before Parliament this week, however, is the Internal Market Bill, which has just passed its first vote in the House of Commons. Ostensibly introduced to make provision for “the internal market for goods and services in the United Kingdom … [,] in connection with provisions of the Northern Ireland Protocol … [and] to authorise the provision of financial assistance by Ministers of the Crown”, certain clauses within the Bill run directly counter to the UK’s international legal obligations. Clause 42(1) of the Bill states that “A Minister of the Crown may by regulations make provision about the application of exist procedures to goods, or a description of goods, when moving from Northern Ireland to Great Britain”. Clause 42(2) adds that this “includes any exit procedure that is applicable by virtue of the Northern Ireland Protocol or otherwise”.
In simple terms, this clause - if enacted into law - would empower Government Ministers to pass regulations that “disapply exit procedures … required by the Northern Ireland Protocol … [and] the Withdrawal Agreement” (Elliott, 2020). The effect of this is plain. Government Ministers would be empowered under the Bill to disapply provisions of the Agreement reached with the European Union, thereby potentially effecting a breach of the international legal obligations that the Agreement represents. Clause 43 is equally dangerous. This permits the “Secretary of State … [to] make provision for the purposes of domestic law in connection with Article 10 of the Northern Ireland Protocol [relating to] (State aid)”. Clause 43(2) adds that such regulations “may … make provision … disapplying, or modifying the effect of, Article 10” of the Northern Ireland Protocol. In similar fashion, therefore, Clause 43 of the Bill also expressly empowers the UK Government to act contrary to International Law.
The Government itself makes no secret of its intentions. Clause 45(1) of the Bill underlines the proposed breach by providing that clauses 42 and 43 - and regulations passed pursuant to those clauses - “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent”. Clause 45(4) expressly lists the Northern Ireland Protocol and the EU withdrawal agreement as an example of such “relevant international … law”.
The concerning legal effect of these provisions has been the subject of much criticism directed at the Government in recent days. All five living former Prime Ministers have spoken openly about their concern for the Bill. David Cameron noted “misgivings about what is being proposed”; whilst John Major and Tony Blair jointly wrote to The Sunday Times fearful that the Bill “questions the very integrity of our nation”. What is more, MPs from across the Commons - including former Lord Chancellor, David Gauke; former Attorney-General, Geoffrey Cox; and Labour leader, Sir Keir Starmer - have expressed concern for the Government’s proposed breach of International Law.
The proposed contents of the Internal Markets Bill, including its provisions to empower the Government to act contrary to what withdrawal agreement, is more than of mere political concern. Not only is Government action taken contrary to International Law expressly against the Ministerial Code, such blatant plans to act in this fashion are an affront to constitutional principle. At the centre of any constitutional democracy should be appreciation of the rule of law and the underlying principle that Government must act according to established law, rather than on the basis of arbitrary or subjective political preferences. This notion is firmly established, with philosophers, commentators, academics, judges and politicians from all corners of the earth and as far back as Aristotle, acknowledging its timeless relevance.
As the House of Lords Select Committee on the Constitution correctly observed last week, in a letter to the Prime Minister, former Senior Law Lord, Tom Bingham, wrote in 2010, that “[t]he rule of law requires compliance by the state with its obligations in international law as in national law”. This would include, quite plainly, the contents of the negotiated agreement between the United Kingdom and the European Union and the obligations to which this gives rise.
Any actions taken contrary to such obligations could, indicates Bingham, reflect “serious deficiencies of the rule of law in the International order … [by] the willingness of … states [(i.e. here, the UK)] in some circumstances to rewrite the rules to meet the perceived exigencies of the political situation”. This is unacceptable and the long-term ramifications of such circumstances are likely to far outweigh the more immediate political advantage that the Government seeks to gain through the Internal Market Bill. “However attractive it might be for a single state to be free of the legal constraints that bind all other states, those states are unlikely to tolerate such a situation for every long and in the meantime the solo state would lose the benefits and protections that international agreement can confer”.
Brexit has, of course, been political contentious and wrought with division. Agreement between the European Union and the United Kingdom was a long time in coming and the contents of the deal represents consensus and compromise, designed to take the two parties forward in a cordial working relationship.
Through the threatening of such blatant breaches of the Agreement - and, thus, International Law - the UK Government and its Internal Market Bill seeks to undo much of the work it has pursued to date and to jeopardise future relations with the European Union. More than this, though, it threatens something rather more worrying: a disregard for the rule of law; constitutional principle that, above all else, must be preserved at the very centre of any democratic system.