A former Lord Justice of Appeal says this legislation is contrary to the rule of law and British self-interestby Richard Aikens / November 9, 2020 / Leave a comment
The UK Internal Market Bill (UKIMB), currently making its way through the Lords, has caused much excited comment. The government has been accused by highly respected figures in law and politics of subverting the rule of law, of bad faith and of attacking democracy. The government’s top legal civil servant, Jonathan Jones, resigned over the bill. What’s it all about?
The problem starts with the Protocol on Ireland/Northern Ireland, attached to the revised Withdrawal Agreement (WA) concluded between the EU and Boris Johnson’s government in October 2019. The WA is a treaty, valid in international law. The WA and protocol were given the force of law in the UK by the EU (Withdrawal Agreement) Act 2020, which modified the Withdrawal Act 2018. The protocol is contradictory. It recognises the imperative of keeping an open border between Northern Ireland and the Irish Republic for both people and goods. Yet Articles 4 and 6 also announce that N Ireland is part of the customs territory of the UK and that nothing in the protocol will prevent unfettered market access for goods moving from N Ireland to the rest of the UK. The EU insisted on maintaining the integrity of its internal market. But the only way to preserve an open Irish border and the integrity of the European internal market is by requiring N Ireland to retain regulatory alignment with the EU.
Therefore, under the protocol the EU’s customs laws and VAT regime will continue to apply to goods going to N Ireland from Great Britain, even after the end of the transition on 1st January 2021. Article 5 of the protocol treats virtually all goods moving from Great Britain to N Ireland as if they were imports into the EU (Ireland) from outside the EU (viz GB). Goods moving from N Ireland to GB will have to comply with EU export procedures. The Prime Minister’s assertion in December 2019 that “there’s no question of there being checks on goods going NI/GB or GB/NI” is inconsistent with the protocol. The provisions in the UKIMB to circumvent aspects of the protocol are, effectively, an admission that Johnson’s statement was wrong.
Article 10 of the protocol also stipulates that EU rules will remain operative in respect of state aid affecting trade between N Ireland and the EU. In addition,…