AS the coronavirus pandemic, ‘Golfgate,’ Phil Hogan’s escapades around the country and his flawed understanding of public health guidelines dominated the headlines during the month of August, you’d be forgiven for thinking that Brexit negotiations were plodding along without incident.
That’s until plans by the British government to table the so-called ‘UK Internal Market Bill’ were leaked by the Financial Times on September 6th, sparking uproar in London, Dublin and beyond
The British government published a Bill which would renege on the provisions of the Withdrawal Agreement with the EU, something it has already admitted is contrary to international law, prompting angry reactions from the EU and resignations among its top legal officials.
Published on September 9th, the 49-page proposal, entitled ‘United Kingdom Internal Market Bill’ would give UK Ministers power to interpret the Northern Ireland protocol’s provisions on checks on goods travelling from Northern Ireland to Britain.
It says that the protocol will ‘not be interpreted in accordance with case law of the European court’ or ‘in accordance with any legislative act of the EU,’ contradicting the deal signed by UK Prime Minister Boris Johnson in January, under which companies or individuals would be able to rely on EU law in court.
Ahead of the Bill’s publication, Northern Ireland Secretary, Brandon Lewis, told the House of Commons on September 8th that ‘this does break international law in a very specific and limited way.’ He said: ‘We’re taking the powers to disapply the EU law concept of direct effect in a certain very tightly defined circumstance.’
The move appears to be an attempt to rewrite the Withdrawal Agreement to turn it into what Johnson now appears to wish he had managed to agree with Brussels. If the UK Prime Minister has a defined aim, it may be to appear tough in front of his supporters, while creating a scenario in which he can paint the EU as intransigent, at least in the eyes of his right-wing voters. The advocates of Brexit are likely to be happy with this treatment of negotiating partners, but former Prime Minister John Major warned about the effect on Britain’s reputation. “If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained,” he said in a statement.
In response, the Commission has threatened legal action against the British government if it does not reverse plans to introduce the controversial Bill. In a statement issued on September 10th, following an emergency meeting of the EU-UK Joint Committee in London between Commission Vice-President Maro efčovič and Michael Gove, Chancellor of the Duchy of Lancaster, the Slovak politician reminded the UK government that the ‘Withdrawal Agreement contains a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text - which the EU will not be shy in using.’
The timely and full implementation of the Withdrawal Agreement, which entered into force on February 1st, including the Protocol on Ireland-Northern Ireland, which Prime Minister Boris Johnson and his government agreed to, and which the UK Houses of Parliament ratified less than a year ago, is ‘a legal obligation,’ the Vice-President stated. The EU ‘does not accept the argument that the aim of the draft Bill is to protect the Good Friday (Belfast) Agreement,’ he told his British counterpart, adding that ‘in fact, it is of the view that it does the opposite.’
The bloc ‘expects the letter and spirit of this Agreement to be fully respected … violating the terms of the Withdrawal Agreement would break international law, undermine trust and put at risk the ongoing future relationship negotiations,” he added. efčovič urged the UK government to ‘withdraw these measures from the draft Bill in the shortest time possible,’ giving a deadline by the end of the month. However, UK Cabinet Office Minister Michael Gove said the government ‘could not and would not’ withdraw the legislation. In a written ‘legal position,’ published on the same day, the British government said that parliament would not be acting ‘unconstitutionally’ in enacting the Internal Market Bill. ‘It is an established principle of international law that a state is obliged to discharge its treaty obligations in good faith … this is, and will remain, the key principle in informing the UK’s approach to international relations.’
An Taoiseach Micheál Martin said he was not optimistic about a bilateral deal between the EU and UK, saying Dublin was preparing for a no-deal Brexit scenario. ‘Trust has been eroded,’ the Fianna Fáil leader stated, adding that the British Premier ‘made it clear to me … (during a “forthright” phone-call on Wednesday night) … that the UK was fully committed to meeting the obligations of protecting the single market and fluidity of trade north and south.’
The move to amend the Brexit treaty ‘runs counter to that,’ the Corkman said.
• Rose O’Donovan is the editor-in-chief of the Brussels-based agricultural policy newsletter Agra Facts.