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The Internal Market Bill: Breaking International Law

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Georgia Katsigiannis

Section Editor for International Law



Introduction

The new United Kingdom (UK) Internal Market Bill has spurred extensive debate amongst scholars and politicians alike. The aforementioned bill was introduced to the House of Commons on the 9th of September 2020 and seeks to ensure that there are no internal barriers to trade within the UK after it leaves the EU.[1] The bill is controversial for a myriad of reasons, but critically, it has been condemned for breaching the UK’s international obligations.


Historical context

In 1973, the UK joined the European Economic Community (EEC).[2] The EEC eventually developed to form what is now known as the European Union. Being part of EU meant that the UK was subject to a number of EU-wide rules and regulations. Following Brexit negotiations, the UK decided to formally leave the EU on the 1st of February 2020. The Withdrawal Agreement[3] is an international treaty which outlines the terms of the UK’s orderly withdrawal from the EU, subject to Article 50 of the Treaty on European Union (TEU). [4] The agreement was implemented into UK domestic law by virtue of the European Union ( Withdrawal Agreement) Act 2020.[5]


One of the most contentious issues following Brexit negotiations, concerns the unique relationship between Ireland and Northern Ireland. Brexit meant that, whilst Northern Ireland had to leave the EU, the Republic of Ireland would still remain a Member State – creating potential problems as concerned trade between the UK and Ireland.[6] To deal with this issue, the Northern-Ireland Protocol was established.[7] The Protocol seeks to abstain from the creation of a ‘hard-line border’ in Ireland and intends to uphold the Good Friday Agreement. Moreover, it includes a number of specified EU laws dealing with trade and regulatory rules for goods in Northern Ireland; specifically, customs and state aid. [8]


In order to avoid the need for customs checks on goods moving within the island of Ireland, the protocol stipulates that Northern Ireland is to be included in the EU’s customs union. Hence, customs control would take place between Northern Ireland and Great Britain. Article 10 of the Protocol also provides that the UK agrees to the continuation of the application of EU provisions concerning state aid in Northern Ireland.


The protocol is an integral part of the Withdrawal Agreement and is expected to come into full force from 31 December 2020. Although technically it is yet to come into effect, pursuant to Article 5 of the Withdrawal Agreement, the EU and UK agree to assist each other “in full and mutual respect and good faith” when carrying out the requirements of the Withdrawal Agreement. [9]


The Internal Market Bill included clauses which challenge, or rather breach, the terms of the Withdrawal Agreement and consequently the NI protocol.


The Internal Market Bill and breaches of International law

The provisions of the Bill - especially section 42 to 45 - deliberately breach the UK's treaty obligations under international law.


If enacted, section 42 would allow UK ministers to unilaterally set aside - or rather “disapply, or modify” - relevant parts of the NI Protocol.[10] Section 43 would permit the Secretary of State to essentially disregard the effect of Article 10 of the NI Protocol - under which the UK agreed to the continuation of EU state aid in Northern Ireland.[11] Lastly, section 45 of the Bill provides that any regulations enacted by the government would have the effect “notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent”. Indeed, section 45(6) of The Bill states that this includes ‘any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal.’[12]


The bill has aroused political upheaval, with Northern Ireland Secretary Brandon Lewis explicitly acknowledging in the House of Commons that the bill breaches international law, albeit in a “specific and limited way”. [13]


The Attorney General, in her defence, has presented a rather unconvincing argument based on the principles of parliamentary sovereignty and dualism. It has been argued that due to the doctrine of parliamentary sovereignty, the UK government is within its ‘rights’ to renege on its international law obligations. As noted by Mark Elliot, the principle of parliamentary sovereignty essentially becomes irrelevant when dealing with international law – seeing as international law is an altogether separate legal system. Moreover, it was also argued because of the UK’s dualist legal system, treaty obligations are not binding upon the UK unless “enshrined in domestic legislation”.


Indeed, as per the case of Miller I [2017], it was emphasized by the courts that “treaties between sovereign states have effect in international law and are not governed by the domestic law of any state”.[14] It is therefore arguable that international law perhaps supersedes the doctrine of parliamentary sovereignty and dualism. As such, international treaty obligations are binding upon the UK as they would any other nation.


It is especially interesting to see the effect this will have on the UK’s reputation in the international arena. The UK, since as far back as the dawn of the League of Nations, has had a strong presence in international law. The current circumstances, however, seem to indicate that the UK is not as committed to the international legal order when it is politically inconvenient to do so at a domestic level. Nonetheless, we shall see how everything will eventually pan out.



 

Sources [1] United Kingdom Internal Market HC Bill (3) [135], cl 1 [2] ‘The EEC and the Single European Act’ <https://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/overview/britain-and-eec-to-single-european-act/> accessed 3 December 2020. [3] EU-UK Withdrawal Agreement [2019] OJ C 384/ 1 [4] Consolidated Version of the Treaty on European Union [2012] OJ C 326/ 43 [5] The European (Withdrawal Agreement) Act 2020 [6] S Palmer, ‘Crossing the Rubicon: Brexit, International Law, and the Internal Market Bill’ (Just Security, 22 Oct 2020) <https://www.justsecurity.org/72995/crossing-the-rubicon-brexit-international-law-and-the-internal-market-bill/> accessed 1 December 2020 [7] Department for Exiting the European Union, Protocol on Ireland/Northern Ireland, 2019, www.gov.uk/government/publications/new-protocol-on-irelandnorthern-ireland-and-political-declaration accessed 2 December 2020. [8] ‘The Internal Market Bill, the EU Withdrawal Agreement and the risk of no deal on the EU-UK future relationship’ (White case, September 17 2020) <https://www.whitecase.com/publications/alert/internal-market-bill-eu-withdrawal-agreement-and-risk-no-deal-eu-uk-future> accessed 1 December 2020. [9] [9] EU-UK Withdrawal Agreement, cl 5. [10] United Kingdom Internal Market HC Bill (3) [135], cl 42 [11] United Kingdom Internal Market HC Bill (3) [135], cl 43 [12] United Kingdom Internal Market HC Bill (3) [135], cl 45 [13] R Hogarth, ‘he Internal Market Bill breaks international law and lays the ground to break more law’ (Institute for Government, September 9 2020) <https://www.instituteforgovernment.org.uk/blog/internal-market-bill-breaks-international-law> [14] Miller I [2017] UKSC 5


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Smith Colin
Smith Colin
Apr 21, 2021
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