After it had first been leaked to the Financial Times ready for their Monday edition last week, The ‘Internal Market Bill’ has led to a veritable explosion of Remainers, especially Tories, to come out of their hidey holes. Equally and equally predictably, learned lawyers have been penning articles. Their essays are pro and con, as you would expect, but are usually wrapped up in unavoidable lawyerly phraseology.
However, the eminent Martin Howe QC, Chair of ‘Lawyers for Britain’, has written an article for the DT which puts the whole thing into proper perspective. That article had the great title “Forget the foaming indignation, this Brexit bill is perfectly justifiable” (paywalled link) and was published on Sept 10th. It doesn’t seem to have penetrated the skulls of Remain Tories, nor does it seem to have entered much into the current debate – perhaps because it is paywalled. Here are some vital passages which set the record straight. Mr Howe QC starts with the important historical and constitutional context:
“A single unified internal market is a key block in the constitutional foundations of the United Kingdom. The 1707 Articles of Union between England and Scotland, and those between Great Britain and Ireland in 1800, abolished all customs duties between the different parts of the United Kingdom. They also declared that the citizens of all parts should be “on the same footing in respect of trade and navigation, and in all treaties with foreign powers”.
The government’s UK Internal Market Bill is needed to maintain the free flow of trade across the nation in the post-Brexit world. The UK will no longer be subject to the EU treaty rules on the free movement of goods and services or to the EU’s State aid regime. […] It is clearly necessary in an open internal market to have rules which prevent devolved legislatures or local authorities from subsidising local businesses in ways which would unfairly damage businesses in other parts of the country.” (paywalled link)
The uproar about that Internal Market Bill is not justified:
“But two clauses in the Bill have generated a torrent of foaming indignation. These would allow the government to restrict the so-called “direct effect” of two parts of the Northern Ireland Protocol, which is part of the EU Withdrawal Agreement (WA). The government will also include a similar clause in the Finance Bill in order to prevent the Protocol being weaponised by the EU to require the wholesale imposition of EU tariffs on all goods sent from Great Britain to Northern Ireland.
“That would be flat contrary to the Act of Union between Great Britain and Ireland and would clearly alter the constitutional status of Northern Ireland within the UK. As such, it would amount to a major breach of the core principle of the Belfast (Good Friday) Agreement that NI’s constitutional status cannot be changed without the consent of the people of Northern Ireland.” (paywalled link)
Martin Howe QC then gives a brief ‘historical’ (well, it wasn’t that long ago …) summary of the WA which necessitated this new Bill. We don’t need to go here into the latest arguments about ‘oven-ready’, or ‘Johnson duped us’ or ‘Johnson is a buffoon and doesn’t know what he’s doing’. These arguments overlook the true reason for this mess from which this Bill is meant to extricate us:
“The problem arises from sloppy and hurried drafting of some of the clauses in the Protocol, coupled with egregious clauses in Theresa May’s atrociously negotiated Withdrawal Agreement. These purport to impose on the UK the EU law concepts of “direct effect” of treaties and the WA’s supremacy over domestic law, even after we have ceased to be a member state, as well as giving the European Court of Justice binding powers of interpretation. These clauses defy universal international treaty practice, under which a sovereign state never subjects itself to binding rulings by courts of another treaty party.
The Protocol sets out the clear principle that NI is part of the customs territory of the UK, so goods should be allowed to flow from Great Britain to NI without tariffs. There are provisions for the UK authorities to levy EU tariffs on goods which are “at risk” of crossing the open border into the EU. The problem is that the circumstances in which goods are to be treated as “at risk” are not defined in the Protocol, and joint agreement is needed with the EU on the rules which would define this.” (paywalled link)
Having said all that, and having emphasised that keeping things as they are means allowing the EU, via the ECJ, to keep us tied to Brussels for eternity, especially as the EU has ‘strong incentives to make life as difficult for us after we’re out as possible, Mr Howe QC continues:
“[…] The problem is that if the UK refuses to agree a wide definition and insists on a more limited class of goods genuinely at risk of onward sale into the EU, then the default position if there is no agreement appears to be that ALL goods passing from GB to NI would be subject to duties.
Given its duties to safeguard the constitution and internal market of the United Kingdom and its specific responsibilities under the Belfast Agreement, the UK government cannot possibly allow such a situation to arise. Contrary to the rather puzzling remarks of Brandon Lewis, the Northern Ireland Secretary, there are good arguments that the government’s clauses will not breach international law.” (paywalled link)
Next, there’s a brief look at some principles of international law. I am surprised that so many of the learned lawyers and Tory Lords simply do not grasp that this is nor about ‘us’ looking ‘untrustworthy’ on the international stage (why do they never point out that the EU must surely look even less ‘trustworthy’?) but about us regaining our sovereignty. Why should we be kept in subjugation, at the pleasure of Brussels, when no other non-EU country is receiving such treatment? here it is:
“First, there is a general principle of international law that treaty powers should be exercised in good faith, and an EU blockage of reasonable “goods at risk” rules under threat of using the treaty machinery to impose tariffs across the board could be classed as a bad faith exercise of treaty powers. The government’s clauses will allow the UK to protect itself from abusive exercise of treaty powers by the EU and are therefore a justified measure under international law.
Secondly and more fundamentally, the alteration of the constitutional status of NI (which across the board tariffs on GB to NI exports would entail) would breach the core principle of the Good Friday Agreement. It is not only an agreement between governments but also with representatives of the communities in Northern Ireland. International law does not justify a later treaty to which these community representatives are not parties being used to over-ride the rights they enjoy under the earlier treaty, especially where it involves over-riding such a fundamental right as the right to self determination of the people of NI.” (paywalled link)
After a bit of whataboutery, where Mr Howe QC points out that framing domestic law in a way which might ‘arguably’ breach international law is a technique employed generally by many states and not least by the EU, he goes straight to the role Parliament plays in our constitution. It is surpassingly strange that the Remain MPs in the HoC and the noble Lords in the HoL would still rather abandon those rights to the EU and the ECJ by sabotaging Brexit. He writes:
“Fortunately, the UK is in a position where our law allows us to ensure that the UK’s negotiating position under international treaties is not undermined by our domestic courts having to impose international treaties as interpreted by a foreign court even where it is contrary to the foundations of our constitution. The WA and Protocol have direct effect and supremacy within the UK only by virtue of a section in the Act of Parliament which implemented the WA. Parliament can undo or revise what it has previously done and so can modify or remove under UK law the direct effect of clauses in the WA, and contrary to misconceptions circulating widely, the UK courts are bound to give effect to Parliament’s will if expressed in clear terms.” (paywalled link)
In conclusion Martin Howe QC rams home the point that Parliament has the right to pass this Bill, a right which it gave itself by voting for the WA which includes (thank you,Sir Bill Cash for insisting this be inserted!) the vital section 38. Did the MPs and Lords not read what they voted for? See for yourselves:
“If there were any doubt that Parliament has this right, section 38 of the Withdrawal Agreement Act preserves Parliamentary sovereignty and makes it quite clear that Parliament has the right to pass the clauses which the government is proposing and thereby override these errant clauses in the Protocol.” (paywalled link)
That ought to stop the Remain arguments once and for all – especially as it comes from this eminent lawyer, and I am glad he’s been one of the staunchest Brexit supporters we have amongst that particular crowd!