Peter Donnelly, Editor
The emergency of the coronavirus and combatting it encouraged cross-party and European unity. However, the Prime Minister’s Internal Market Bill, which Northern Ireland Secretary of State Brandon Lewis confessed would “break international law,” has been the recent manifestation of Brexit wrangling provoking the old acrimony to resurface.
The acrimony which dominated the UK political system from the Brexit referendum result which came to be almost a type of ritual was largely overtaken by the greater, destructive forces which were unleashed courtesy of the global coronavirus pandemic from March.
The ‘B-word’ (and yes that refers to Brexit) formed a part of the daily discourse of the media before March this year and for a while it seemed that the shadows of the pandemic engulfed the memory of the UK-EU Brexit squabbling. It was suggested by commentators, still with one eye on the Brexit process, that the crisis would foster a spirit of goodwill and compromise between the UK and the EU who have been mutually aggrieved by the grim reality of daily Covid-19 fatalities. This was a reasonable suggestion but one which has proven to have been hopelessly naive. As the Summer has produced little in the way of progress in the UK-EU endeavour to secure a free trade agreement, prior to the conclusion of the Transition Period on 31st December, Boris Johnson has publicly proclaimed 15th October to be the ‘make or break’ deadline for such consensus. Areas such as the EU’s insistence on access to UK territorial waters for fishing, state aid and inherent ambiguities in the Northern Ireland protocol have proven insurmountable to an agreement.
The Prime Minister’s Internal Market Bill, which Northern Ireland Secretary of State Brandon Lewis confessed would break international law,’ has been the recent manifestation of Brexit wrangling across the party spectrums. Introduced on Wednesday, 9th September, during Boris Johnson’s weekly appearance at Prime Minister’s Questions, the rapidly concealed divisions over Brexit, in the Commons spurred by the newfound Covid-19 unity of purpose, did not take a great deal of probing before they faltered and ultimately broke loose once more.
The contentious bill and its potential economic, social and constitutional consequences occupied the week’s headlines prompted by a Sunday evening report in The Financial Times, 6th September; despite the fact that the bills’ contents were not fully known or understood until Wednesday.
Arguably, the Government’s actions are not entirely surprising given previous legislative assurances contained within the Withdrawal Agreement which has been criticised for its significant ambiguity.
The Current Position
In 2020, the ‘New Decade, New Approach‘ document was the prelude to the restoration of devolutionary governance in Northern Ireland, Within the document which received cross-party consensus the UK Government was clear in its commitments: “The Government is absolutely committed to ensuring that Northern Ireland remains an integral part of the UK Internal Market [within the UK Customs Territory]. We will legislate to guarantee unfettered access for NI’s businesses to the whole of the UK Internal Market.”
Now that a bill designed to advance this purpose has been presented to the Commons, some may be questioning whether such frenzy – from the media, EU and the Government’s other detractors – was wholly warranted and whether the Government’s seemingly ‘subversive’ tactics, in light of the bill’s contents, have produced a damp squib effect even for those who were critical of the Government’s stance.
This analysis has been rejected outright by constitutional law practitioners and academics in the strongest possible terms, chief amongst them Northern Ireland’s Lord Chief Justice, Sir Declan Morgan QC. Lord Chief Justice Morgan expressed his concerns that the Government’s open admission of its intended action to breach an international legally binding treaty, as the Withdrawal Agreement is, would potentially have knock-on societal effects: “Where there is an indication that a state intends to break international law….it may have a domestic effect on the confidence that the public may have in the legal system.” It is a hard-hitting admission from the one of the most senior lawyers in Northern Ireland. Could those societal effects be the adoption of a generally lax attitude towards coronavirus regulations.
The Northern Ireland Protocol
Reaching agreement on the controversial Northern Ireland/Ireland Protocol, was the direct product of much disquiet between the two blocs in discussions preceding the Withdrawal Agreement. It has been front and centre of this week’s rhetoric.
When the Transition Period concludes, Northern Ireland will continue to follow EU regulatory rules on goods and services coming from Great Britain to Northern Ireland whilst the rest of the UK will cease to align with EU single market procedures. This framework was crafted as a necessary measure for the avoidance of a hard border on the island of Ireland, which had the potential to damage the Good Friday Agreement, cross-border business and result in a deterioration of public order. The Northern Ireland Protocol details that trade between Northern Ireland and the Republic of Ireland is to be determined by the EU’s Union Customs Code, meaning no trading tariffs would be incurred.
Upon the Protocol receiving agreement in January, the Institute For Government outlined that the European Commission and the European Court of Justice would have enforcement jurisdiction with reference to EU rules and standards in Northern Ireland, when the Transition Period ends. Additionally, the Commission will possess “wide-ranging rights to ask for information and intervene” in the operations of UK enforcement bodies. For many wanting to see the whole of the UK have a “clean cut” break from the subjection to EU institutions and regulations, this has always been a bitter pill to swallow.
In connection with the continuity of the applicability of EU Single Market rules in Northern Ireland, following December 2020, that is governed by the Democratic Consent Procedure enshrined within the Protocol’s Article 18 (given domestic sanction by the European Union Withdrawal Agreement Act 2020). The Consent mechanism was designed to garner “cross-community consultation” before the Northern Ireland Assembly voted on the continuation of adherence to EU rules. The NI Protocol also includes wider commitments ensuring that “all the rights and privileges contained in the Common Travel area” between the UK, Ireland, The Isle of Man and The Channel Islands are upheld.
Old habits die hard and the fact that the Northern Ireland parties have resurrected their positions on the old Brexit arguments with such ease, reinforced the accuracy of this established mantra.
DUP First Minister Arlene Foster re-emphasised known unionist concerns that the Protocol would be prejudicial to seamless trading between Great Britain and Northern Ireland and thus create an internal UK economic barrier in the Irish Sea. She cautiously welcomed the bill, however, her distrust of the Johnson administration evidently not far away from her thoughts. Her joint First Minister Sinn Féin counterpart, Michelle O’Neill, SDLP leader Colum Eastwood and Alliance’s Stephen Farry rehearsed the Irish remain stance that the Good Friday Agreement faced a significant threat by these latest Government moves. Taoiseach Micheal Martin described the Government’s position as “a new departure.”
Just when there was an inkling that the language of borders – hard or soft – and backstops had partially faded from popular memory, reversion to the old routine and discourse has proven to be seamless for the disparate sects in Northern Ireland.
Discretion to Disapply
Clause 3 of the bill enumerates the broad executivediscretionary powers exercisable by the Secretary of State to potentially enact regulations which would have the effect of “disapplying” or “modifying” Article 10 – the NI Protocol. The draft bill will therefore permit the Government at a whim – in bad temper who knows – to unilaterally alter the Protocol. The Government’s Commons majority will make it unlikely that any fundamental alterations or amendments will be attached to the bill while navigating its way through the parliamentary stages.
Leading experts in devolution and European Union law, including Queen’s University law Professor Colin Harvey, Professor Catherine Barnard at Trinity College, Cambridge and Liverpool University Professor Michael Dougan have actively criticised the Government’s action. Professor Dougan, writing on social media, suggested that “for devolution it’s as bad as many had feared….for the NI Protocol and the UK’s reputation in the rules-based international order, it’s as scandalous as recent reports suggest.”
Scottish Secretary of State Alister Jack suggested that the Internal Market Bill would enhance the powers and competencies of devolved regions:
“We are taking action to protect the vital UK internal market, while respecting and strengthening devolution, by ensuring that goods can continue to travel barrier-free through the UK when the Transition Period ends.”
The Government’s desire for harmonisation between it and the devolved regions was, to put it diplomatically, certainly far from public view when Scottish First Minister Nicola Sturgeon held nothing back, effectively blackballing the Prime Minister’s perceived assault on devolution structures and the semblance temporary clarity as enshrined within the Withdrawal Agreement. In the context of a looming second Scottish Independence referendum this will not endear many in the Unionist case for a willing and content Scotland within the Union.
Likewise, in Northern Ireland where last year there was a Civic Nationalist forum in Belfast’s Waterfront Hall, the issue will only serve to intensify calls in sections of Nationalism for the calling of a border poll. Now in this time of increased uncertainty, however, whether in the UK, across Europe or even in the United States, there should be no further space for friction and division to fester.
The Government has been at pains to emphasise that it remains firmly wedded to working its obligations as outlined in January’s UK-EU Withdrawal Agreement despite widespread pronouncements that it is actively contravening the rule of law. Yes it was January of 2020 when the Agreement was reached; a lot of water has passed between the Channel since that. Boris Johnson and his Cabinet ministers have highlighted that the new bill would legally safeguard the repatriation, to the UK, of powers to regulate trade between the four UK nations and maintain harmonisation of rules in the fields of mutual recognition and non-discrimination of goods and services between the devolved regions.
Despite this uproar what can become blurred is that throughout the sorry and sordid saga that is Brexit, the EU and its leaders such as European Commission President Ursula von der Leyen, her predecessor Jean-Claude Juncker and the the head of the Commission’s UK relations task force Michel Barnier have persistently championed the sanctity of its single market requiring gold-plated guarantees from the UK before any withdrawal agreement was reached.
Similarly is the UK Government, now evidently flexing its credentials as a sovereign non-EU state, not entitled to clarify the operations and integrity of its own internal market?
EU ire was on full display, following the bill’s publication. The Commission President took to Twitter: “Very concerned about announcements from the British government on its intentions to breach the Withdrawal Agreement. This would break international law and undermines trust. Padcta sunt servanda = the foundation of prosperous future relations.”
As the EU now have called for an urgent convening of a conference to address the UK Government’s position there will likely be those closer to home who will be determined to seek legal action against the Government.
Whether this is just a heating up of the bluff and bluster between both sides to encourage progress remains to be seen and the coming days will tell the tale of whether the Government will back down with the corresponding effect of EU concessions in the future relationship trade talks.
You can follow the latest developments on BBC News’ UK-EU Trade Talks portal, https://www.bbc.co.uk/news/topics/c4vm89lx8e8t/eu-uk-post-brexit-trade-talks