On Wednesday the government asked parliament to vote for a bill that would enable ministers to break an international treaty. The Internal Market Bill, which aims to ensure that the UK’s own internal market is legally ready after the end of the Brexit transition period, says that ministers would have the power to override international law, and in particular the EU Withdrawal Agreement. What exactly does the government propose?
First of all, it should be noted that the government does not say that it is trying to denounce the entire withdrawal agreement. Nor does the bill try to give the government powers to breach all of it. There are no powers proposed, for instance, to breach the rules on the rights of EU citizens staying in the UK, or the financial settlement. Instead, the bill proposes to give ministers power to breach some—but not all—parts of the protocol agreed with respect to Northern Ireland.
In particular, the bill gives ministers two such powers. The NI protocol states that the UK has to comply with any EU rules on exports which stem from the EU’s international obligations. The reasoning is that goods might pass from Ireland to Northern Ireland without being checked, providing an opportunity to evade any law governing those exports. If passed, the new bill would enable ministers to implement their own rules on export declarations and other procedures for products moving from NI to GB, in effect deciding that international law need not apply. Obligations in the withdrawal agreement might be overridden.
The state aid clause is more blatant, stating that the minister can disapply the state aid article in the NI Protocol, designed to ensure the free trade in goods between NI and the EU is not distorted by subsidies. The bill specifically states that ministers can block key parts of that article: the jurisdiction of the European Court of Justice to rule on state aid which “affects” trade between NI and the EU, and the power of the commission to make decisions on such state aid based on the protocol. Competing companies can also be blocked from going to UK courts to complain about UK state aid decisions.
Further, the bill makes clear that these two clauses, along with…