The seemingly unending Brexit saga has taken yet another unexpected twist with the introduction of a draft Internal Market Bill by the UK government on 9 September 2020, seeking to “protect jobs and trade” within the UK’s internal market. The proposed new legislation, although welcomed by “hard” Brexiters, has been widely criticised by many others. The list of those not amused includes opposition politicians, the devolved British administrations, the Irish and other foreign governments, EU officials, constitutional lawyers, and the Speaker of the US House of Representatives, as well as several Conservative MPs, peers and ex-politicians, some of also whom happen to be Brexiters. The Bill has even met with disapproval from civil servants, prompting the resignation of Sir Jonathan Jones, Head of the Government Legal Service, as of 8 September.
The Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, “oven-ready” in the words of British Prime Minister Boris Johnson, and came into effect on 31 January 2020. A revised Withdrawal Agreement and Political Declaration had earlier been signed by the UK and the EU, on 17 October 2019. The Bill was then passed in the House of Commons on 9 January, followed by the House of Lords on 21 January 2020, after a further five amendments. Given the time that has elapsed since the agreement became legally binding for both parties, this seemingly late intervention by the UK government is being seen in some circles as a reckless act of brinkmanship, possibly even deliberately aimed at cynically achieving a no-deal Brexit outcome.
At the time of ratification, the Withdrawal Agreement failed to satisfy many “hard” Brexiters, who were seeking a complete break from the EU and the unconditional return of UK territorial integrity. Their wishes may yet be realised in some modified form. The amended Bill allows the UK government to override not only some provisions of the Northern Ireland Protocol, intended to protect the all-island economy and the Belfast (Good Friday) Agreement by avoiding a so-called “hard border” within the island of Ireland, but also “any other EU law or international law” when felt to be in the best interests of UK trade.
The Withdrawal Agreement involves a compromise, whereby Northern Ireland is to remain loosely aligned with the EU for another four years, staying within both the UK and the EU customs unions. Northern Ireland also has to continue to submit to EU state aid rules that limit the amount of government subsidies to businesses to avoid unfair competitive advantage in the market. When it comes to trade, the EU is particularly concerned about British goods “at risk” of bypassing tariffs and entering the EU’s single market from Great Britain through Northern Ireland and then across the North-South Irish border. This explains the perceived need for east-to-west border customs checks and the imposition of duties on “at risk” goods travelling between the British mainland and Northern Ireland.
The proposed Internal Market Bill is seen by many as a breach of international law, even by Northern Ireland Secretary Brandon Lewis, who admitted in the House of Commons that “this does break international law in a very specific and limited way”. If passed, the Bill can be expected to cause lasting damage to the UK’s international reputation as a reliable trade partner. It will also raise questions about the government’s regard for the letter of the law, and demonstrate a willingness to renege on previously agreed commitments. Even as the Bill awaits a vote in the House of Commons, an amendment has been proposed by Sir Robert Neill, chairman of the Justice Select Committee, as a damage-limitation exercise. Meanwhile, the EU has issued its own ultimatum to the UK government, asking for the Bill to be withdrawn by the end of September. It seems that the gloves are now off in anticipation of a bruising encounter.
The seemingly delayed response of the UK government to some “damaging” clauses of the Withdrawal Agreement is hard to understand, coming as it does months after the treaty was signed and despite a ten-page “official sensitive” briefing document issued by the civil service back in January 2020, forewarning the government of potential Northern Irish issues. But then we live in an ever-changing world, and when it comes to matters of international dialogue,the accepted rules of engagement no longer seem applicable . We will just have to await events as they unfold and keep hoping for the best.
Ashis Banerjee