What just happened?
The UK Government has proposed a controversial Internal Market Bill which would come into effect from 1 January 2021.[1]
What does this mean?
The proposed bill has raised controversy over its impact on international law with relation to the Withdrawal Agreement. The European Commission released a statement that the bill as it stands would violate Article 5 (3) & (4) and Article 10 on custom legislation and State aid, including the direct effect of the Withdrawal Agreement (Article 4). As well as the good faith obligation under the Withdrawal Agreement (Article 5).[2]
'Incompetence and failure of governance' Ed Miliband slams Boris Johnson's Internal Markets Bill
The main area of controversy is that it may break Article 4 of the Withdrawal Agreement. Article 4 specifically outlines the methods and principles for the implementation of the agreement and the Union law made applicable by the agreement, within UK law.[3] The Withdrawal Agreement was ratified and entered into force on 31 January 2020,[4], and therefore is now law. For those readers who may not know, ratification is the process of making an international treaty binding in the UK, it becomes a part of the domestic law. The concern is that the proposed bill will break areas of the Withdrawal agreement relating to the Northern Ireland Protocol and by proxy Article 4. To recap, the protocol essentially ensures that there is not a return to a hard border between Northern Ireland in the UK and the Republic of Ireland in the EU. Therefore, it was agreed that Northern Ireland would remain in the EU single market for goods but that their goods could also be accessed without issue within the rest of the UK.
The proposed internal market bill will give power to the government to legislate in relation to state aid and exit procedures, which are two elements integral to the Northern Ireland Protocol. In particular, clause 42 which authorises UK Ministers to disapply the exit procedures that are required by the Northern Ireland Protocol.[5] Essentially, it gives the UK government power to unilaterally alter or disapply export rules for goods traveling from Britain to Northern Ireland.
David Anderson (pictured above) a member of the House of Lords EU security and justice sub-committee, said the code still required ministers to uphold international law after a 2018 court of appeal ruling concluded there was an “overarching” duty to do so
How does it impact the legal sector?
Whilst the bill only imposes a minor breach at this time, in creating the potential to re-write international law, should the government go ahead and use these powers it could lead to a much bigger breach with serious consequences.
Should the UK implement the bill, the EU would be able to take action. Although Brussels would likely try to pressure the UK into complying with the Withdrawal Agreement, they could take action through arbitration or take the UK straight to the ECJ. It has been reported that the EU have advised the UK to remove the controversial aspects of the bill by the end of the month, or they will threaten legal action.[6] The UK would be unable to stop this as aforementioned they have ratified the withdrawal agreement in UK law. Under the withdrawal agreement, EU institutions have the same powers in relation to the protocol in Ireland and Northern Ireland as they do in other member states. As such the EU can take the UK government to the European Court of Justice as dictated under UK law.
The proposed renege from the Withdrawal Agreement may also pose important questions for the rule of law. In particular whether under the ministerial code civil servants are required to respect the rule of law in relation to international law as well as domestic law. This is a question that has previously divided commentators but David Anderson, a member of the House of Lords EU security and justice sub-committee, said the code still required ministers to uphold international law after a 2018 court of appeal ruling concluded there was an “overarching” duty to do so.[7] It remains to be seen whether the Government will proceed with the bill in its current form and if so, whether they will seek to rely on the provisions which would further break international law.
Written by Gabriella Cinotti
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References:
[1] ‘UK Internal Market Bill Introduced today’ (Office of the Secretary of State for Scotland, 9 September 2020).
[2] ‘The European Commission following the extraordinary meeting of the EU-UK Joint Committee’ (The European Commission, 10 September 2020).
[3] European Union (Withdrawal Agreement) Act 2020, Article 4.
[4] Joe Owen, ‘Brexit deal: The Withdrawal Agreement’ (Institute for Government, 2 July 2020).
[5] Mark Elliott, ‘The Internal Market Bill – A Constitutional Storm’ (Public Law For Everyone, 9 September 2020).
[6] Sebastian Payne and others, ‘New Law will stop EU ‘breaking up our country’ (Financial Times, 11 September 2020).
[7] Lisa O’Carroll, ‘Government admits new Brexit bill ‘will break international law’ ( The Guardian, 8 September 2020).
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.