I am sorry that once again we are seeing so much concern and division during a time of pressure in our negotiations with the European Union. Much of what is being said, as so often, is alarmist.
There is no question of the UK acting lawlessly. Of course, it is highly undesirable there is the possibility of the UK legislating in a way incompatible with another party’s interpretation of our treaty obligations. We are a rule of law nation: we keep our promises, seeking to resolve any incompatibility between domestic and international law, just as we should.
The Internal Market Bill reinforces the right of people and business to work and trade freely across the whole of the UK, including Northern Ireland (NI). In it, the Government is necessarily asking for a power in the context of an ambiguous treaty and a fierce, unprecedented negotiation which threatens the integrity of the UK.
The crucial negotiating point won in the negotiation on the Northern Ireland Protocol (NIP) was to place NI in the UK’s customs territory as a matter of law. One would think this obvious but the EU wanted NI to be in the EU’s customs territory, eventually conceding the point.
This has important implications for what documentation is required on the movement of goods and for the regulation of subsidy through state aid rules. Since NI is in the UK customs territory, is it for the UK to regulate the movement of goods and state aid where goods are not to enter the EU.
Unfortunately, the NIP is ambiguous and capable of a range of interpretations.
Our Chief Negotiator, Lord Frost has set out some of the pivotal issues on Twitter:
- To preserve peace and the Good Friday Agreement, a careful balance was negotiated. The Government now needs reserve powers to preserve it.
- The EU has threatened to deny us 3rd country listings on food on the same basis as many other countries, and they have said if we are not listed, we would not be able to move food to NI.
The Bill will remedy these problems, clarifying that Northern Ireland is in the UK customs territory, with all that entails. It cannot, for example, be right that the EU could insist on regulating the movement of goods exclusively within the UK after we have left, or apply EU state aid rules to all of the UK through the back door of the NIP.
These things need clearing up in the interests of all parties.
Unfortunately, it appears these issues have been used as leverage by the EU in negotiations. This risk was foreseen by me and other Eurosceptics. That is why I wrote the Better Deal and Clean Managed Brexit proposals to ensure we could keep our promises without being severely disadvantaged in negotiations.
However, these proposals could not be delivered with the divided, weak and incompetent Parliament which we endured until the general election. When, under some duress, I and other Eurosceptics agreed to back Boris’ deal, we were clear it offered “a tolerable path to a great future”. We understood that if the EU exploited the Withdrawal Agreement in negotiations, we might need, with great regret and with regard to the implications, to legislate notwithstanding our treaty obligations.
We therefore insisted on section 38 of the EU (Withdrawal Agreement) Act, relating to Parliamentary sovereignty. Geoffrey Cox was Attorney General at the time and evidently permitted the legislation. I am not aware of any Conservative MP objecting to that clause at the time, despite it making clear we would legislate notwithstanding the Withdrawal Agreement if that prove necessary in the national interest.
The Government now proposes to take powers to defend the integrity of the United Kingdom in that context.
I do not propose to wrestle here with the arguments of lawyers but I note the following:
Our Judge who ruled in favour of the government when it broke the Geneva Convention of the Sea, said this:
‘the Crown [The Government] has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before’.
…
There are endless examples of breaches of international law by the 193 nations. The UK is, rightly, one of the good guys.
via Why didn’t the EU punish Germany when it broke international law? by barrister Steven Barrett
The article goes on to explain
that Germany, with its unimpugnable commitment to international law, found as a matter of principle that it can over turn international law (break it), if an international law obligation asked Germany to do something which was a fundamental breach of its constitution.
I also recommend No, Boris isn’t breaching the rule of law. Here’s why by David Wolfson QC.
These and other articles demonstrate not that the matter at hand is a small one – it is not – but that much of the commentary we are suffering is simplistic and not grounded in truth. In reality, international law is not susceptible to offhand arguments, stripped of political reality.
I am delighted we have concluded a trade agreement with Japan which improves on the EU’s and that we are accelerating towards completing better deals with Canada, the USA, Australia and New Zealand, in addition to acceding to the Comprehensive and Progressive Trans Pacific Partnership. We are distinctly on our way in the world. This is not the time to undermine the UK’s negotiating position through rebellions in the Commons related to our negotiations.
A brighter future is tantalisingly within our grasp. We need good will and recognition of our separate and independent status from the EU. I maintain the hope that this will follow soon and that the present difficulties will swiftly recede.
