Is the government serious about breaking international law, or just indulging in populist rhetoric? 

Dismantling the hard border between Ireland and Northern Ireland made a significant contribution to the success of the peace process and the Good Friday Agreement, and the establishment of power-sharing in Northern Ireland.  After the UK Brexit referendum in 2016, the UK and the EU were agreed that Brexit must not result in a return to a hard border, and in 2018 they agreed a Northern Ireland Protocol (NIP), as part of the Withdrawal Agreement, to ensure that this did not happen. In 2019 the new UK Government of Boris Johnson insisted on renegotiating the NIP, and this amended agreement included special customs and other arrangements for Northern Ireland that would ensure frictionless trade across an open border between Northern Ireland and Ireland, either in the event of a post-Brexit free trade agreement between the UK and the EU, or in the event of no-deal and a future trade relationship based on WTO terms.

Ed Miliband goads Boris Johnson for Brexit incompetence

The UK Government introduces draft legislation to disapply key terms of the NIP and admits the rules will break international law

Then the UK Government of Boris Johnson dropped a bombshell, in the shape of clauses in the United Kingdom Internal Market Bill which, the Government stated, would breach, “in a limited and specific way”, key provisions of the NIP.  The controversial provisions would allow the UK Government to disapply checks and paperwork on the movement of goods from NI to the rest of the UK, and to disapply the application of EU state aid rules in Northern Ireland. These provisions of the NIP are part of a package of provisions designed to ensure that goods sourced in Northern Ireland have free access to the EU internal market across the open border between Northern Ireland and Ireland. Disapplying these provisions could require alternative measures to be put in place which could put the open border at risk.

Further breaches of the NIP are in the pipeline. The UK Government plans to introduce clauses in a Finance Bill which would allow suspension of the provisions in the NIP which provide for the imposition of customs duties on goods moving from the rest of the UK to Northern Ireland, if those goods are at risk of accessing the EU market over the open border between Northern Ireland and Ireland.

The Government’s plan to break international law attracted criticism at home and abroad, and it accepted an amendment to its draft legislation, though the amendment fell short of bringing the legislation into line with international law

The UK Government’s admission that the bill would breach international law attracted strong criticism both from opposition parties, and from its own supporters in the UK Parliament. The UK Government was accused of undermining the rule of law, and damaging the UK’s reputation as a country which honoured its international obligations. The European Commission stated that it regarded the UK’s conduct as “undermining trust” and said it would “not be shy” in initiating proceedings under the Withdrawal Agreement if the UK Government did not withdraw the offending provisions before the end of September. UK Foreign Secretary Dominic Raab visited the United States and reassured US politicians that the UK would do nothing to threaten the Good Friday Agreement, while some US Senators said they would vote against a UK-US trade deal if the UK failed to honour the NIP.

The UK Government then accepted an amendment to its draft provisions, tabled by one of its own supporters, which would require a further Parliamentary vote before the provisions could be applied. The amendment will not prevent the controversial provisions breaking international law if they are enacted, since they are stated to override any inconsistent international law. But the amendment was accompanied by a highly significant statement by the UK Government.

The UK Government did not withdraw the draft provisions by the end of September, and the European Commission stated on the 1st October that it was initiating proceedings against the UK before the European Court of Justice, by sending a letter of formal notice to the UK. The European Court retains jurisdiction in respect of the Withdrawal Agreement, including the NIP, until the end of the year, after which it is the dispute settlement provisions of the Withdrawal Agreement which are applicable. The Commission’s letter of formal notice emphasises that the controversial provisions will, if enacted, “flagrantly violate” the NIP, but the Commission also says that the failure to withdraw the draft provisions will in itself amount to a breach of the “good faith” obligation in Article 5 of the Withdrawal Agreement.

It seems that the UK Government only plans to use its controversial powers to override international law where this would be consistent with international law 

A statement issued by the Prime Minister’s office (the “Downing Street Statement), announced that if the UK Government applied the controversial provisions, or any similar subsequent provisions (such as the Finance Bill referred to above), “it would always activate appropriate formal dispute settlement mechanisms with the aim of finding a solution through this route.” This sounded distinctly conciliatory, and a commitment to respect the dispute settlement mechanisms in the Withdrawal Agreement, but a UK Government Minister refused to confirm that if those mechanisms produced an arbitration award against the UK, the UK would comply.

The amendment accepted by the Government would make exercise of the proposed powers to override international law subject to a further vote in the House of Commons. The Downing Street Statement said that the UK Government would only ask Parliament to support its use of powers to breach the NIP if, in its view, the EU were engaged “in a material breach of its duties of good faith or other obligations, and was thereby undermining the fundamental purpose of the NIP”. This commitment would also apply to similar subsequent provisions, such as the Finance Bill referred to above. The Statement goes on to give examples of breaches of the NIP by the EU which would trigger a UK response, and these alleged breaches include EU insistence on the excessive application of tariffs on goods moving from the rest of the UK to Northern Ireland, and an unreasonable refusal by the EU to recognise UK food safety standards for agricultural products; I come back to these issues below.

Despite the requirement of a further Parliamentary vote, and the contents of the Downing Street Statement, the enactment into UK law of the controversial clauses, or any similar subsequent clauses, would still amount per se to a breach of the Withdrawal Agreement, and thus a breach of international law, as the UK Government has acknowledged.

Are the UK Government’s mixed messages a sign it has had second thoughts about breaking international law?

The significance of the Downing Street Statement is that the UK Government is now describing UK draft legislation, which it admits will breach international law when enacted, as necessary to enable it to respond to anticipated prior breaches by the EU of the Withdrawal Agreement and the NIP. Such a response would not itself be a breach of international law by the UK at all, provided that there actually has been a prior breach of international law by the EU, and the UK response is a proportionate one. The UK Government also commits under the Downing Street Declaration to initiate appropriate dispute settlement mechanisms if it ever uses its powers to override international law.

The UK Government’s narrative on potential disapplication of provisions of the NIP has undeniably changed. The UK Government is still pressing ahead with draft legislation which it admits would break international law, yet it has signalled it would only apply that legislation consistently with international law. If the UK is signalling a u-turn, it is a welcome u-turn to make, from the perspective of compliance with the rule of law.

The UK Government has said that having the right in UK law to disapply provisions of the NIP is a vital insurance policy to prevent a “blockade” of Northern Ireland in the event of a no-deal

The UK Government has identified potential breaches of the NIP by the EU which it says could result in a “blockade” of Northern Ireland. One would be the “manifestly unreasonable” refusal of the EU to recognise UK food safety standards, which would result in the UK being bound under the NIP to restrict the movement of food from the rest of the UK into Northern Ireland. Another would be the insistence by the EU that tariffs should be charged on goods moving from the rest of the UK to Northern Ireland in ways that are not related to the real risk of goods transiting on into Ireland and the EU internal market. In the absence of such agreement, the default position would oblige the UK to impose tariffs at the EU rate on all products moving from the rest of the UK to Northern Ireland.

The UK Government does not need the insurance policy of breaking international law – it has a lawful insurance policy under the NIP 

The UK Government does not need an unlawful insurance policy in order to deal with problems which might result from restrictions on the movement of goods from Northern Ireland to the rest of the UK, and vice versa, under the NIP. The UK Government already has an entirely lawful insurance policy, in the form of the right to take unilateral safeguard measures under the NIP if the application of the NIP leads to serious economic difficulties.

Article 16 of the NIP gives the UK the right to take unilateral safeguard measures if the application of the NIP leads to serious economic difficulties 

Article 16 of the NIP give the EU and the UK the right to take unilateral safeguard measures if the application of the NIP “leads to serious economic, societal, or environmental difficulties that are liable to persist.” Such measures shall not go further than is strictly necessary to remedy the situation.  If one party takes safeguard measures, the other party may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. The parties are in each case bound to consult with each other with a view to finding a mutually acceptable solution.

Possible proportionate safeguard measures by the UK 

If the EU refused to recognise UK food standards, or failed to agree to reasonable criteria for identifying those goods moving from the rest of the UK to Northern Ireland which were “at risk” of onward transit to Ireland and the EU internal market, this could create serious economic difficulties, and justify the UK in adopting proportionate safeguard measures. A possible proportionate safeguard measure as regards EU non-recognition of UK food standards would be to allow entry to Northern Ireland for certain foodstuffs despite non-recognition by the EU of the applicable UK standards, but to limit that entry to foodstuffs destined for the Northern Ireland market, and to exclude foodstuffs at risk of transit to Ireland.  A possible proportionate safeguard measure as regards the application by the UK authorities of EU customs duties on all goods moving from the rest of the UK to Northern Ireland would be to confine the application of customs duties to goods regarded by the UK authorities as genuinely at risk of transit to Ireland.

Recourse to consultations and dispute settlement mechanisms 

The EU would be entitled to take proportionate rebalancing measures, but it is not clear that any useful rebalancing measures would be available to it. The EU would not wish to “rebalance” the situation by imposing controls on the border between Northern Ireland and Ireland. Mutually acceptable solutions would be likely to be found by the EU and the UK through consultations. The dispute settlement provisions of the Withdrawal Agreement could be invoked, and this could lead to arbitration which would be binding on the parties.

The UK need not have characterised its response to difficulties over implementing the NIP as a willingness to break international law 

The UK has chosen to frame its response to positions taken by the EU in discussions over the implementation of the NIP, in respect of, e.g., recognition of food standards, and customs arrangements for Northern Ireland, principally as a willingness to derogate from the NIP, and thereby to break international law. It could just as easily have framed its response as an intention to invoke lawful safeguard measures under the NIP, and to initiate the dispute settlement provisions of the Withdrawal Agreement.

The course it has chosen has allowed the European Commission to characterise the very introduction of the provisions in draft as a breach of the good faith obligations of the Withdrawal Agreement, and the opportunity to bring proceedings before the European Court of Justice. The UK Government could still stave off proceedings in the European Court by further amending the draft provisions to show they were intended to apply subject to the terms of the Withdrawal Agreement. It is unlikely to do that. What may seem to some like an “own goal” by the UK Government, in allowing itself to be trapped in proceedings before the European Court of Justice, may turn out to be just the opportunity the UK Government has been looking for. An opportunity to confront the European Commission and the European Court of Justice, the bêtes noires of hard-line supporters of and indeed members of the Government, who became opposed to the renegotiated NIP as soon as they realised what it said. “”Cry God for England, Harry and St. George,” or some such, will ring in their ears, as the Government conducts the final stage of trade negotiations with the EU. With the “get out of gaol free” card for the UK being that the UK Government has committed to Parliament that it doesn’t really intend to break international law anyway. The circle will have to be squared sometime fairly soon.

• This is a shortened and updated version of an article which appears on the website of the think-tank Fundacion Fide
• Professor Derrick Wyatt, QC is a member of the International Academic Council of Fundacion FIDE.