Brexit: Is Boris Johnson justified in breaching international law?
by Alasdair Sandford
The British government insists that its proposed legislation which would override part of the Brexit divorce agreement — breaching international law — is an "insurance policy". It passed its first parliamentary hurdle on Monday.
The controversial UK Internal Market bill gives ministers powers to "disapply" parts of the rules agreed in October 2019 for goods that cross in and out of Northern Ireland – which under the EU accord will continue to follow some EU rules from 2021 to keep an open border with the Irish Republic.
The rules are set out in the Northern Ireland Protocol as part of the binding Withdrawal Agreement that set the divorce terms between the UK and the EU and has the force of an international treaty.
Ministers and government supporters argue that problems with the deal, and the EU's stance in trade negotiations, justify the move.
Euronews asked Simon Usherwood, Professor of Politics at Surrey University, to examine some of their claims.
EU 'trying to impose full border' between Britain and Northern Ireland
In an article for the Daily Telegraph, Boris Johnson acknowledged that under the divorce deal Northern Ireland would continue to follow EU law for four years unless the Northern Irish assembly voted to continue it.
The UK also agreed to some "light-touch checks" on goods entering Northern Ireland from Britain, to avoid checks on the North-South border should the products go on to Ireland, the prime minister said. Details would be thrashed out by a newly-created Joint Committee.
However, the prime minister added: "We are now hearing that, unless we agree to the EU's terms, the EU will use an extreme interpretation of the Northern Ireland protocol to impose a full-scale trade border down the Irish Sea."
The EU's chief Brexit negotiator Michel Barnier denied the claim on Twitter, saying the Protocol was "not a threat to the integrity of the UK".
Simon Usherwood: "The Irish Protocol to the Withdrawal Agreement specifies that the EU and UK will jointly agree which products crossing the NI-GB border can be exempted from checks: if they can’t agree, then the default is that checks apply in all cases. Progress on that list has been positive so far, according to reports from the negotiations, so there was no particular reason to think that the EU was planning to block this working as planned."
EU threatening to 'blockade food'
The British government claims that it might be impossible to send food from Britain to Northern Ireland, as the EU is refusing to guarantee listing the UK as a third country for food imports.
"We are being told that the EU will not only impose tariffs on goods moving from Great Britain to Northern Ireland, but that they might actually stop the transport of food products from GB to NI," Johnson wrote in his Telegraph article.
UK chief Brexit negotiator David Frost alleged in a Twitter thread that the EU had made clear "there is no guarantee of listing us" and that if Britain was not listed "it would be automatically illegal for NI to import food products from GB".
He was replying to Michel Barnier, who wrote earlier that the EU was "not refusing to list (the UK) as a third country for food imports (SPS). To be listed, we need to know in full what a country's rules are, incl. for imports. The same objective process applies to all listed countries."
Even if a threat materialised as alleged by the UK, the Internal Market bill doesn't deal with the issue. Its concerns are over divorce deal provisions on "state aid" rules, and export declarations on goods sent from Northern Ireland to Britain.
The Protocol also says that if "serious economic" difficulties persist as a result of its application, the UK like the EU "may unilaterally take appropriate safeguard measures".
Simon Usherwood: "This comes from the recent round of negotiations, where the EU noted that the UK has still to clarify its plans for safety standards on food and agricultural products. While the UK has committed to maintaining the EU standards it’s been using until now, UK law allows British ministers to change rules as they see fit, so the EU would like to know what plans there might be and how that would fit with any future deal. However, the EU’s left it mainly at the level of wanting to know more, not least because the UK is the largest export market for EU farmers, so any retaliatory action would be potentially very damaging all round. However, even if this did occur, the Internal Market Bill wouldn’t address it all, so it’s hard to see how it helps as a protection against this."
EU plan 'goes against Good Friday Agreement (GFA)'
UK chief Brexit negotiator David Frost tweeted that in order to preserve the Belfast (Good Friday) Agreement, the government "needs powers in reserve to avoid it being disrupted".
Boris Johnson said in his article that the EU's restrictions on trade would amount to a threat to "destroy the economic and territorial integrity of the UK... completely contrary to the letter and spirit of the Good Friday Agreement".
Michel Barnier insists the Protocol was agreed as a "delicate compromise with Boris Johnson and his government in order to protect peace and stability on the island of Ireland".
"The EU does not accept the argument that the aim of the draft (UK) Bill is to protect the Good Friday (Belfast) Agreement. In fact, it is of the view that it does the opposite," EU Commission Vice-President Maros Sefcovic said in a statement.
Simon Usherwood: "The Withdrawal Agreement makes repeated references to the GFA and was negotiated with close reference to the obligations of that Agreement, not least because the Irish government pushed very hard on the matter. The Johnson renegotiation of the Protocol in 2019 resulted in the addition of a consent clause, which gives the Northern Irish Assembly the power to stop application of the Protocol, so it controls the effects of the Withdrawal Agreement on the region. As such, there’s no good evidence that the Withdrawal Agreement or its application would go against the GFA."
A legal 'safety net' to 'sort out inconsistencies'
Johnson says the UK internal market bill would counter this "theoretical power to carve up our country" by an international organisation, acting as a "legal safety net... to clarify the position, and to sort out the inconsistencies". It seeks to prevent barriers to trade and "protect the free flow of goods and services between NI and the rest of the UK".
UK Justice Secretary Robert Buckland described the plan to potentially override the Withdrawal Agreement as an "insurance policy" that it was hoped would never be needed.
Simon Usherwood: "The Bill gives very extensive powers indeed to British ministers to make their own rules in relation to several key parts of the operation of the Irish Protocol: the wording of the text makes clear that this is not well-defined and that it also removes any powers of courts to review those decisions. In any case, the Withdrawal Agreement contains a commitment to apply all provisions in good faith and to make sole use of the dispute mechanism contained in the Agreement to address any problems that occur, so even if the Bill doesn’t result in use of these new powers, it still would seem to breach the terms of the Agreement."
- On Tuesday (September 15) UK Home Secretary (interior minister) Priti Patel repeated in media interviews that the bill was a "safety net". She claimed the Joint Committee of UK-EU representatives had been "established to iron out inconsistencies in the Protocol" and yet this had not happened so far. Several experts have pointed out that the Joint Committee was in fact set up to implement the accord and sort out practicalities. But its remit is not to change the essence of the Withdrawal Agreement concerning Irish Sea arrangements the Johnson government signed up to.
EU 'not playing fair'
Some Conservative ministers and MPs have asserted that the EU's failure to "negotiate in good faith" justifies the move to re-establish UK control over Northern Ireland.
"This will only come into place if there is no agreement between the UK and the EU," Universities Minister Richard Holden told the BBC. "If they're not negotiating in good faith, they've already broken the Withdrawal Agreement."
"The EU has not acted in good faith, that puts them in breach of the Withdrawal Agreement," Tory MP Lucy Allan posted on Twitter.
Simon Usherwood: "International negotiations are not well known for those involved to play gently: the need to secure benefits for home producers and consumers and the desire to not be taken for a ride by the other side tends to result in robust negotiations. Moreover, it’s a good rule of thumb that the more dominant party in such talks tends to lead on setting terms, just because they have more weight – the US is famed for being very uncompromising, for example. However, being tough doesn’t mean being unfair: the Commission – which negotiates on behalf of EU member states – is bound by a legal mandate and has to answer to national governments. As such, it tends to place a lot of weight on legal powers, rather than brute force, as seen here, where its arguments have always been grounded in the letter of the law, especially those to which the UK has already signed up to."
EU 'promised a trade deal'
The internal market bill is also justified, according to some Tories, because they claim that the EU is refusing to deliver on promises to agree a free trade deal.
"The EU refuses to implement the two main points of the Withdrawal Agreement, a free trade agreement and UK sovereignty," tweeted former Tory minister John Redwood.
This claim prompted a terse response from Phillip Lee, a former Conservative MP who crossed the floor of the House of Commons in 2019 to join the opposition Liberal Democrats in protest at the Johnson government's Brexit strategy.
"The Withdrawal Agreement does not include a fully negotiated and legally agreed UK/EU free trade deal. Stop spouting nonsense," he wrote.
Simon Usherwood: "The Political Declaration that accompanied the Withdrawal Agreement set out the ambitions of the two sides to conclude a trade agreement by the end of the transition period. However, it did not include an obligation to do so, for the simple reason that there would be no way to enforce such a rule. Instead, both sides promised to make their best efforts to reach a deal. However, the existence of the Irish Protocol precisely points to the planning that they also undertook should a deal not be possible: hence the ‘backstop’ label often used to described it – it applies unless and until a more general UK-EU deal is concluded to cover the areas it applies to."
Divorce deal was 'rushed through'
Reports quoting a Downing Street spokesman last week said the divorce deal contained ambiguities as it was written quickly, and it was always expected for details to be hammered out later.
"The Withdrawal Agreement and the Northern Ireland protocol, aren’t like any other treaty. It was agreed at pace in the most challenging possible political circumstances, to deliver on a clear political decision by the British people, with the clear overriding purpose of protecting the special circumstances of Northern Ireland," the spokesman said.
Simon Usherwood: "First point to make here was that all the relevant provisions of the Withdrawal Agreement (WA) that the Internal Market Bill challenges were included in draft versions of the WA from 2018 onwards and were much discussed at the time, so there cannot be described as surprises in any way.
"Secondly, the UK sought and secured a number of extensions to Article 50 in 2019, to allow for more time to negotiate and ratify the WA: on none of those occasions did it mention or seek specific changes to these provisions.
"Thirdly, the UK’s domestic ratification of the WA in January 2020 was very short indeed, mainly because the government said there was no need for more time in Parliament as the content had been very extensively discussed in the years beforehand."