Violating the EU Withdrawal Agreement – disentangling fact and opinion

breaking the law

Answers to 20 questions explain factually how we reached a situation where the UK intends to violate international law.

Daniel P. Moynihan once said: “Everyone is entitled to his own opinion, but not his own facts.” Although some seem no longer to believe this, I still do.

In that spirit, let me set out my opinions first.

Then I give 20 answers, which are as factually correct as I can make, them to 20 questions intended to explain what last week’s UK/EU news was all about.

Finally, I gave my personal forecasts about how this might turn out.


My opinions

I believe that Britain’s membership of the EU was good for the UK and good for the other members of the EU. In the 2016 Referendum I voted Remain, and until we left the EU on 31 January 2020, I campaigned for a second referendum to overturn the first.

I would like the UK to one day rejoin the EU, and to adopt the euro and to join the Schengen agreement.

Accordingly, no reader should have any doubts about my opinions.


20 questions

The 20 questions below are intended to be comprehensive, and to be as objective as possible. If you are familiar with the early history, feel free to skip over as much of the text as you wish.


1. What is the Good Friday agreement?

The website of the Northern Ireland Assembly explains what the agreement is and how it came about. It also has the full text of the agreement. I have quoted from the explanation below.

The Belfast Agreement / Good Friday Agreement 1998

The Belfast Agreement is also known as the Good Friday Agreement, because it was reached on Good Friday, 10 April 1998. It was a peace agreement between the British and Irish governments, and most of the political parties in Northern Ireland, on how Northern Ireland should be governed. The talks leading to the Agreement addressed issues which had caused conflict during previous decades. The aim was [to] establish a new, devolved government for Northern Ireland in which unionists and nationalists would share power.


2. What does the Good Friday agreement say about the border between Northern Ireland and the Republic of Ireland?

The word “border” appears in the agreement nine times. On eight of those occasions, it is part of the term “cross-border” and in the final mention it is used simply for geographical categorisation “in urban, rural and border areas,”.

Looking at all the individual nine mentions, the agreement says nothing specific about what should happen at the border.

I believe that there is a straightforward explanation for this.

At that time, in 1998, there was (and continues to be) a common travel area between the Republic of Ireland and the UK. Accordingly, apart from special arrangements at the border made during “the troubles” to counter the risk of terrorism, individuals have always been free to cross backwards and forwards across the border without formalities.

Also in 1998, both the Republic of Ireland and Northern Ireland as part of the UK were full members of the European Union which in 1992 had introduced the single market with the abolition of customs formalities at borders within the EU and with regulatory alignment regarding goods sold within the EU.

Accordingly, the agreement did not need to talk about the border. Once there was no longer a risk of terrorism, all security posts were removed.

I have visited Northern Ireland once, in March 2018. On that trip we crossed the border several times in a minibus without ever being aware that we were crossing between two different countries.


3. Absent special provisions, what would happen when the UK leaves the EU and any transitional arrangements end?

The border between the Republic of Ireland and Northern Ireland becomes the border between the EU and the UK.

South of the border, EU law applies to govern goods that may be made and sold to consumers, and EU customs duties apply to any goods that enter the EU. North of the border, UK law applies to govern goods that may be made and sold, and UK customs duties apply to any goods that enter the UK.

Both the EU and the UK would then have reasons to inspect goods crossing that border and to require customs declarations. Furthermore, goods crossing that border have to be approved by the receiving country as acceptable for sale within that country.


4. Why is this a problem?

The Belfast Agreement / Good Friday Agreement ended “the troubles” by enabling and facilitating the residents of Northern Ireland to express their identities as they wished. Residents who wish to take up citizenship of the Republic of Ireland in addition to their UK citizenship are free to do so.

Citizens of Northern Ireland of a nationalist persuasion who wish to see Irish reunification would regard the creation of a tangible border between Northern Ireland and the Republic of Ireland as a very retrograde step. Furthermore, restrictions at the border would be very problematical for businesses which rely upon extensive cross-border movements, for example herds of cattle that regularly cross the border in both directions, and manufacturers who rely upon frequent cross-border movements of goods.

At its most extreme, there is a genuine concern held by many that the re-imposition of such a border could eventually lead to the resumption of nationalist terrorism. A realistic scenario is for small-scale vandalism of border infrastructure leading to an increase in security arrangements at the border, with that in turn leading to greater vandalism and attacks upon those providing the security in a downward spiral.

This was of great concern to the Republic of Ireland.

Accordingly, in its 22 May 2017 negotiating mandate for the European Commission for the purposes of agreeing the terms of the UK’s departure from the EU, the European Council set out specific objectives regarding Northern Ireland in paragraph 14 which is reproduced below. Both here and elsewhere on this page, when quoting large paragraphs from original documents, I have inserted breaks to make the text easier to read.

14. In line with the European Council guidelines, the Union is committed to continuing to support peace, stability and reconciliation on the island of Ireland.

Nothing in the Agreement should undermine the objectives and commitments set out in the Good Friday Agreement in all its parts and its related implementing agreements; the unique circumstances and challenges on the island of Ireland will require flexible and imaginative solutions.

Negotiations should in particular aim to avoid the creation of a hard border on the island of Ireland, while respecting the integrity of the Union legal order. Full account should be taken of the fact that Irish citizens residing in Northern Ireland will continue to enjoy rights as EU citizens.

Existing bilateral agreements and arrangements between Ireland and the United Kingdom, such as the Common Travel Area, which are in conformity with EU law, should be recognised. The Agreement should also address issues arising from Ireland’s unique geographic situation, including transit of goods (to and from Ireland via the United Kingdom).

These issues will be addressed in line with the approach established by the European Council guidelines.

The key phrase in the text above is “avoid the creation of a hard border on the island of Ireland.”


5. How did Theresa May try to solve this?

Once the EU and the UK have different regulatory regimes and different customs regimes post Brexit, as explained above, a border has to exist somewhere between the two.

Theresa May’s first negotiating position was that a hard border between Northern Ireland and the Republic of Ireland could be avoided by close alignment of EU rules and Northern Ireland rules. (Without constraining the arrangements in the Rest of the UK.) This leaked on 4 December 2017 and led to conflict between the Arlene Foster, Leader of the Democratic Unionist Party, and the UK Government which needed DUP votes to survive.

The RTE website has some text about the provisions that were unacceptable to the DUP:

“The text, which was worked on intensively over the weekend and into the early hours of the morning, contained the following paragraph on Ireland:

“In the absence of agreed solutions the UK will ensure that there continues to be no divergence from those rules of the internal market and the customs union which, now or in the future, support North South cooperation and the protection of the Good Friday Agreement.”

It was one of around 100 paragraphs in all on the three issues, in a text which runs from four to five pages.

It is understood the text on Ireland was updated to refer to “continued regulatory alignment” on the island of Ireland.”

Accordingly, there were further negotiations between the UK and the EU which led to a framework agreement being signed on 8 December 2017. The Northern Ireland provisions are in paragraphs 42-56. The key provisions are paragraphs 49 and 50.

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements.

The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship.

Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland.

In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.

In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

Paragraph 49 reproduced above, once embedded in a legally enforceable document, would ensure that there was no hard border between the Republic of Ireland and Northern Ireland.

However, it also contained a commitment that “in the absence of agreed solutions” not just Northern Ireland but also the Rest of the UK “will maintain full alignment with those rules of the Internal Market and the Customs Union…”

This deal had satisfied the objections of the DUP that Northern Ireland should not be treated differently from the Rest of the UK. Paragraph 50 reproduced above gave a clear commitment on the part of the UK Government to avoid restrictions applying between Northern Ireland and the rest of the UK, usually referred to as “a border down the Irish Sea.” However, the price of doing so was the commitment in Paragraph 49 to “maintain full alignment with those rules of the Internal Market and the Customs Union…” in the absence of agreed solutions.

During further negotiations during 2018 between the UK and the EU, Theresa May’s Government converted this framework text into the legal language of a draft treaty. On 25 November 2018 the UK Government website published the “Withdrawal Agreement and Political Declaration on the future relationship between the UK and the EU as endorsed by leaders at a special meeting of the European Council on 25 November 2018.”

The key document is the Withdrawal Agreement, since that would be legally binding, whereas the Political Declaration was a declaration of (sincere) intent. The Withdrawal Agreement is 599 pages long and few people have read every word. I am not one of them! However, I paged through the full document when it was first published.

The Northern Ireland issues are addressed as follows. The Protocol on Ireland / Northern Ireland begins on page 301.

Article 1(4) explains that “The provisions of this Protocol are therefore intended to apply only temporarily, taking into account the commitments of the Parties set out in Article 2(1). The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement.”

The protocol goes on to provide that, during the temporary period, in rather convoluted language, goods could flow freely between Northern Ireland and the EU (which begins at the border with the Irish Republic) and between Northern Ireland and the UK. However, at the same time the UK would be bound by various regulatory and customs commitments.

Accordingly, there would be no hard border either between Northern Ireland / the Irish Republic or between Northern Ireland / the Rest of UK. The price was many regulatory and customs commitments given by the UK to the EU. Obviously all of this would fall away if the UK and EU agreed permanent arrangements satisfactory to both parties which superseded the Protocol.

Many people talked about “backstops.” The arrangement is best thought of in two parts.

  1. The Northern Ireland backstop. This would apply in all circumstances, (until there was a permanent UK / EU trading arrangement) to ensure that there was no hard North / South border. It required Northern Ireland to follow EU regulations. It would become irrelevant if the UK and EU reached a sufficiently comprehensive trade deal.
  2. To avoid the above backstop creating a customs and regulatory border between Northern Ireland and the Rest of the UK, the UK gave a large number of commitments to the EU regarding customs and other matters applicable in the Rest of the UK. While these were less comprehensive than those applicable in Northern Ireland, they were significant. This could be thought of as the Rest of the UK backstop, needed to avoid the “border in the Irish Sea.”

6. Why did Brexiteers object to Theresa May’s deal?

Very simply, Brexiteers were concerned that the the Withdrawal Agreement meant that the UK could be trapped within these arrangements forever, extensively aligned with the EU for regulatory purposes. Their view was that this would vitiate the benefits they sought to achieve from Brexit.

Theresa May put her deal to the House of Commons on several occasions. It was voted down on each occasion, the first time by a historic margin of defeat.

On 16 January 2019 Theresa May was subject to a vote of no confidence as Leader of the Conservative Party. She survived this vote. However, after poor results in the local authority elections and the European Parliament elections, and the extensions of the deadline for leaving the EU, Theresa May resigned as Leader of the Conservative Party and as Prime Minister to be replaced by Boris Johnson.


7. What did Boris Johnson’s Government agree with the EU?

Mr Johnson sought changes in the Withdrawal Agreement and Political Declaration negotiated by Theresa May. Agreements were reached with the EU on 17 October 2019 and the “New Withdrawal Agreement and Political Declaration” published on the Government website.

Again, the Withdrawal Agreement was to be legally binding while the Political Declaration was a statement of (sincere) intent.

The Withdrawal Agreement is 541 pages long. Theresa May’s former chief of staff, Lord Barwell, has said that 95% of the agreement is the same as Theresa May’s November 2018 withdrawal deal.

The Protocol relating to Northern Ireland starts on page 292. It seems to say very little about trade between Northern Ireland and the EU, except in the preamble, with some provisions quoted below:

“AFFIRMING that the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom, the Government of Ireland and the other participants in the multi-party negotiations (the “1998 Agreement”), which is annexed to the British-Irish Agreement of the same date (the “British-Irish Agreement”), including its subsequent implementation agreements and arrangements, should be protected in all its parts,”

“RECALLING the commitment of the United Kingdom to protect North-South cooperation and its guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls,”

Once you assume that there are no checks of any kind at the North / South border, the rest of the Protocol starts to become easier to understand. The Protocol needs to put in place rules for Northern Ireland which protect the EU, especially in relation to state aid in Northern Ireland and goods moving from outside Northern Ireland into Northern Ireland, and then into the EU.

At the same time, the UK needs to be able to operate as a single customs union including Northern Ireland.

Article 5(1) begins:

“No customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport, notwithstanding paragraph 3, unless that good is at risk of subsequently being moved into the Union, whether by itself or forming part of another good following processing.”

Article 5 then goes on to require that the Joint Committee (to be established by the UK & EU) set out rules for determining when goods might be at risk of subsequently being moved into the EU.

For goods moving from Northern Ireland to the Rest of the UK, Article 6(1) provides:

“Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.

Provisions of Union law made applicable by this Protocol which prohibit or restrict the exportation of goods shall only be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by any international obligations of the Union.

The United Kingdom shall ensure full protection under international requirements and commitments that are relevant to the prohibitions and restrictions on the exportation of goods from the Union to third countries as set out in Union law.”

Again, the detailed procedures are to be set out by the Joint Committee.

The EU is protected against the UK giving excessive state aid in Northern Ireland by Article 10, where 10(1) provides:

1. The provisions of Union law listed in Annex 5 to this Protocol shall apply to the United Kingdom, including with regard to measures supporting the production of and trade in agricultural products in Northern Ireland, in respect of measures which affect that trade between Northern Ireland and the Union which is subject to this Protocol.

The Protocol also contains provisions within it for it to be terminated by the devolved administration in Northern Ireland. Due to the provisions of the Good Friday Agreement, any such termination could not happen without cross community Nationalist and Unionist support.


8. What does the Withdrawal Agreement mean for arrangements between Northern Ireland and the Republic of Ireland?

Broadly speaking, trade between Northern Ireland and the Republic of Ireland can continue as at present. There would be absolutely no checks at the North/South border. There are already rules in place from the time when the UK was a member of the EU governing procedures for charging VAT on sales into the other territory etc.

The key point is that a hard North / South border is avoided. At the same time, the EU is protected against Northern Ireland being used as a conduit for goods from elsewhere in the UK, or from outside the UK, into the EU taking advantage of the absence of any checks at the EU border, being the boundary line between the North and the South.

Also, since goods manufactured in Northern Ireland can move freely into the EU, Northern Ireland (but not the Rest of the UK) is required to abide by a long list of EU regulatory standards.


9. What does the Withdrawal Agreement mean for arrangements between Northern Ireland and the rest of the UK?

Trade between the UK and Northern Ireland can continue to take place with the UK as a whole constituting a single customs and regulatory territory.

However, certain procedures would apply to goods moving from the rest of the UK to Northern Ireland. Those procedures would be intended to ensure that the goods could not move on to the EU through the North / South border in violation of any applicable EU rules.

The detailed procedures would be agreed by the Joint Committee but would require the completion of documents for goods moving between Northern Ireland and the Rest of the UK which are not required today.


10. Did the Government understand the Withdrawal Agreement when it signed it?

The “deal” was agreed during personal negotiations between the UK Prime Minister Johnson and the Irish Prime Minister Leo Varadkar. I have not checked to see how many officials were present.

However, the long technical text of the Withdrawal Agreement would have been worked on by many civil servants, including lawyers, and discussed by Ministers.

Even though the deal was agreed in a rush, any argument that the UK Government did not understand it cannot be correct. (If the argument were correct, and the UK Government signed such a significant international treaty without understanding it, that in itself would be very disquieting!)


11. Why does Mr Johnson not like the Withdrawal Agreement?

The Withdrawal Agreement imposes certain requirements in relation to trade between the Rest of the UK and Northern Ireland that do not apply within the Rest of the UK. It also requires Northern Ireland to follow EU regulatory standards in many areas, even if the Rest of the UK adopts different standards.

Very little detail has been provided by Mr Johnson regarding the question of how onerous such additional requirements are. Instead, it seems to be a matter of principle with him, even though he agreed to that principle when he entered into the Withdrawal Agreement in 2019.


12. Does the Withdrawal Agreement require any particular EU / UK trade agreement or any special rules for the rest of the UK?

No.

The entire point of the Withdrawal Agreement is that it governs the departure of the UK from the EU. The Northern Ireland Protocol is intended to apply indefinitely unless terminated by the devolved Northern Ireland government.

Many of the provisions within it could fall away in the future depending upon the precise trading arrangements (if any) agreed between the UK and the EU.

To illustrate the point, if (somewhat unlikely) the UK chose to become a full member of the European Economic Area (“EEA”) and therefore a member of the single market, and also chose to join the Customs Union, all of the provisions of the protocol relating to goods would become irrelevant, just as they were irrelevant when the UK was a member of the EU.


13. What is the UK seeking in a trade deal with the EU?

Based upon multiple statements from UK ministers and the trade negotiator Lord Frost, the UK wants a trade agreement with the EU which has no tariffs and no quotas on goods moving between the two. It also is not willing to give undertakings regarding future state aid within the UK.

This unwillingness to give undertakings regarding future state aid contradicts what the UK agreed to in the non-binding Political Declaration of October 2019.

Below is a quote from the Political Declaration, paragraph 21 from Part II Economic Partnership section II Goods Part A Objectives and Principles:

21. However, with a view to facilitating the movement of goods across borders, the Parties envisage comprehensive arrangements that will create a free trade area, combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition, as set out in Section XIV of this Part.

Section XIV is reproduced below.

77. Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field.

The precise nature of commitments should be commensurate with the scope and depth of the future relationship and the economic connectedness of the Parties. These commitments should prevent distortions of trade and unfair competitive advantages.

To that end, the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters.

The Parties should in particular maintain a robust and comprehensive framework for competition and state aid control that prevents undue distortion of trade and competition; commit to the principles of good governance in the area of taxation and to the curbing of harmful tax practices; and maintain environmental, social and employment standards at the current high levels provided by the existing common standards.

In so doing, they should rely on appropriate and relevant Union and international standards, and include appropriate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement.

The future relationship should also promote adherence to and effective implementation of relevant internationally agreed principles and rules in these domains, including the Paris Agreement.

None of the above text in the Political Declaration is legally binding (unlike the Withdrawal Agreement). However the EU reasonably assumed that when the UK agreed to that Declaration it was indicating what it would be likely to sign up to in future. Otherwise why say it?


14. Why does the EU not want to agree to the UK’s requests?

The UK will be a very large trading partner of the EU, since the UK’s GDP is almost 25% of the EU’s. It is also geographically very close. Accordingly, the EU is concerned that the UK could give its businesses excessive subsidies to enable them to export into the EU.

In a trade negotiation, both parties pursue their interests while negotiating. An agreement is reached if they are prepared to concede some of the things that they want in order to reach an agreement.


15. What happens to Northern Ireland if the UK disregards the Withdrawal Agreement and refuses to abide by it?

If the UK refuses to abide by the Withdrawal Agreement, the Republic of Ireland has two unpalatable choices. Any decision it reaches has to comply with EU rules unless it receives a “derogation” from complying with EU rules.

The first choice would be to continue with no hard border North / South. This would be a violation of the Irish Republic’s EU obligations to protect the EU customs border, unless it received a derogation.

The second choice would be to reinstate a hard border North / South. This would be extremely unwelcome to citizens of both the Republic of Ireland and Northern Ireland, and could eventually lead to an upsurge in terrorism.


16. How has the EU reacted to the UK’s threat of violating the Withdrawal Agreement?

Many EU officials have expressed serious concern.

Maroš Šefčovič the EU Commission’s Vice-President for Interinstitutional Relations and Foresight, tweeted as follows:

17. How will the USA react?

One of the major goals of the UK is to reach a trade agreement with the USA, since the USA is the world’s largest economy. All US trade agreements have to be ratified by Congress.

At present, the House of Representatives is controlled by the Democratic Party, and the Speaker of the House is Nancy Pelosi. She has said that there is absolutely no chance of the House approving any UK / USA trade deal if the UK Government imperils peace in Northern Ireland by violating the Withdrawal Agreement.

“The UK must respect the Northern Ireland Protocol as signed with the EU to ensure the free flow of goods across the border.

If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.

The Good Friday Agreement is treasured by the American people and will be proudly defended in the United States Congress.”

The same point has been made by Democrat Presidential Candidate Joe Biden, and other senior Democrats (as well as Republican Congressman Peter T. King) as mentioned in Biden’s tweet below.

18. Does the Withdrawal Agreement contain a mechanism within it for resolving disputes about its meaning or its implementation?

Yes.

Where any disputes arise between the UK and the EU, the Withdrawal Agreement sets out detailed dispute resolution procedures in Title III which starts on page 270 of the Withdrawal Agreement. It proceeds to set out detailed rules for how arbitration is to take place.

Such provisions are commonplace in international treaties.


19. Why is the Government saying that the UK will potentially disregard parts of the withdrawal agreement?

The Secretary of State for Northern Ireland, Rt Hon Brandon Lewis MP, spoke to Parliament on 8 September 2020.

The last paragraph of his opening answer is reproduced below:

“Our approach guarantees that we will be able to deliver the objectives that we set out for implementing the protocol in a way that protects the interests of the people and the economy of Northern Ireland.

We are working hard to resolve any outstanding issues through the Joint Committee and will continue to approach those discussions in good faith, but we are taking limited and reasonable steps to create a safety net that ensures that the Government are always able to deliver on their commitments to the people of Northern Ireland and in line with the protocol.”

The steps he is referring to is the introduction of the United Kingdom Internal Market Bill 2019-21. The Bill has led to a great deal of media comment, which began with a leak to the Financial Times which ran the story on 6 September 2020 “UK plan to undermine withdrawal treaty puts Brexit talks at risk.”

The provisions causing the fuss are in Clause 45 which I have reproduced in full below:

45 Further provision related to sections 42 and 43 etc

(1) The following have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent—

(a) section 42;

(b) any regulations made under section 42(1);

(c) section 43;

(d) any regulations made under section 43(1);

(e) this section;

(f) any other provision of this Act so far as relating to the provisions in paragraphs (a) to (e).

(2) Accordingly (among other things)—

(a) regulations under section 42(1) or 43(1) are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law;

(b) all rights, powers, liabilities, obligations, restrictions, remedies and procedures which are, in accordance with section 7A of the European Union (Withdrawal) Act 2018, to be recognised and available in domestic law, and enforced, allowed and followed accordingly, cease to be recognised and available in domestic law, or enforced, allowed and followed, so far and for as long as they are incompatible or inconsistent with a provision mentioned in paragraphs (a) to (f) of subsection (1);

(c) section 7C of that Act ceases to have effect so far and for as long as it would require any question as to the validity, meaning or effect of any relevant separation agreement law to be decided in a way which is incompatible or inconsistent with a provision mentioned in paragraphs (a) to (f) of subsection (1);

(d) any other provision or rule of domestic law that is relevant international or domestic law ceases to have effect so far and for as long as it is incompatible or inconsistent with a provision mentioned in paragraphs (a) to (f) of subsection (1).

(3) In section 7A of the European Union (Withdrawal) Act 2018, in subsection (5)—

(a) omit the “and” at the end of paragraph (e);

(b) at the end of the subsection insert “, and

(g) the provisions mentioned in paragraphs (a) to (f) of section 45(1) of the UK Internal Market Act 2020 (provisions to which this section is subject).”

(4) In this section—

“relevant international or domestic law” includes—

(a) any provision of the Northern Ireland Protocol;

(b) any other provision of the EU withdrawal agreement;

(c) any other EU law or international law;

(d) any provision of the European Communities Act 1972;

(e) any provision of the European Union (Withdrawal) Act 2018;

(f) any retained EU law or relevant separation agreement law;

(g) 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;

“relevant separation agreement law” has the meaning given by section 7C(3) of the European Union (Withdrawal) Act 2018.”

He was asked by Sir Robert Neill MP “Does he recognise that adherence to the rule of law is not negotiable? Against that background, will he assure us that nothing that is proposed in this legislation does, or potentially might, breach international legal obligations or international legal arrangements that we have entered into?”

Parts of Mr Lewis’s response have received a great deal of media coverage: “I would say to my hon. Friend that yes, this does break international law in a very specific and limited way.”

Readers can decide for themselves whether the list of laws overridden by clause 45 is “specific and limited.”

I recommend reading Mr Lewis’s remarks in the entire session in full as I cannot see from them why it is necessary for the UK to introduce this Bill.


20. What can the EU do if the UK disregards the Withdrawal Agreement?

The Withdrawal Agreement is a legally binding treaty agreed by the UK and EU, signed on behalf of each entity, and registered with the United Nations as an international treaty.

If the UK acts in contravention of that treaty, the EU can be expected to invoke the dispute resolution mechanisms set out within the treaty. I would expect any arbitrators to rule in favour of the EU (especially since the UK has said in words of one syllable that it intends to violate the treaty) and award appropriate monetary penalties to the EU.

If the UK failed to pay such an award, it would incur significant international condemnation, with major implications for any future treaties it sought to agree with any countries regarding any subject.


My personal forecast

As Yogi Berra once said, “It’s tough to make predictions, especially about the future.” There are two contradictory scenarios.

Mr Johnson wants deadlock with the EU but without taking the blame

In this scenario, Mr Johnson regards his red lines, in particular the ability to give state aid without any external constraints, as so important that he is willing to accept having no trade deal of any kind with the EU. However, he wants to be able to blame the EU and claim that the EU has been intransigent.

On 1 January 2021 trade between the UK and the EU would revert to World Trade Organisation terms, with significant tariffs and disruption at ports and airports since the UK is presently unready to apply all of the paperwork formalities required.

Relations between the UK and the EU are likely to become very frigid. Many international businesses are expected to commence reducing the scale of their UK operations. I wrote about a worst-case scenario four years ago in my article “Who would suffer most from UK / EU trade restrictions?”

Mr Johnson wants a deal with the EU and is using the threats to the Withdrawal Agreement for negotiating leverage

In this scenario, I expect “back channel” negotiations with the EU, rather than the somewhat public negotiating sessions between Lord Frost and Michel Barnier. Once the UK and the EU strike a deal, Mr Johnson would decide that he no longer needed to violate the Withdrawal Agreement.

My forecast is that the EU will not abandon the Withdrawal Agreement. It was created specifically because the EU could not rely upon informal assurances from the UK.

In trade negotiations, President Trump cancelled the North America Free Trade Agreement (which he was legally entitled to do under the agreement) and negotiated with Mexico and Canada what is now the United States–Mexico–Canada Agreement which he regards as more favourable to the USA. That was easy for him to achieve, since the USA’s economy dwarfs that of Canada and Mexico combined.

It is an inevitable consequence of trade negotiations that the more powerful country gets more of what it wants.

That is why the EU will not “blink first.” It knows that it has much greater negotiating power than the UK and that any downward spiral in trading arrangements will hurt the UK much more than it hurts the EU. The EU’s economy is more than four times the size of the UK economy, and exports to the UK are far less important to the EU than the importance to the UK of exports to the EU.

Mohammed Amin is a former Conservative Party member and is now a Liberal Democrat. He writes in a personal capacity.