Bernard Jenkin: If necessary, we must pass legislation that will nullify the direct effect and direct applicability of EU laws

11 Sep

Bernard Jenkin MP is Chair of the Liaison Committee, and of the ERG Steering Group. He is MP for Harwich and North Essex.

The Bill to regularise the trade of goods and services within the UK is part of taking back control from what is still regulated by the EU, while we are in transition to full independence. The UK Internal Market Bill was published yesterday.  All it does is to legislate for the uncontroversial principle that all goods produced in any part of the UK should be treated equally.

However, it also sets out to protect this principle from potentially damaging interference from the EU, and makes provision for the UK to insist on the right of UK self-government and an end to the application of EU laws in the UK.

The Northern Ireland Protocol (NIP) provides that Northern Ireland would remain subject to the EU’s customs laws and procedures and large parts of its internal market laws, under threat of enforcement by the EU Commission and the Court of Justice of the EU (ECJ). The EU’s rules on state aid would also continue to apply.

This clause could be interpreted widely, allowing the EU to impose their state aid regime on any UK policy which they consider impacts, in any way, on goods which are traded between Northern Ireland and the EU.

This applies not only to Northern Ireland, but also to goods originating from GB. The economy of NI is integrated with the rest of the UK, so there is nothing to prevent this clause being interpreted by the EU and its Court to continue imposing EU policy on large areas of the economy of the whole UK – a country that has formally left the bloc.  For example, if Westminster provided state aid to a manufacturer or farmer in England, which shipped some of its goods to Northern Ireland, then the EU could declare that support to be illegal.

The Protocol requires that customs and regulatory barriers would be imposed down the Irish Sea between Great Britain and Northern Ireland – a damaging division (as well as lots of red tape) between what are two parts of the same country.  This is at odds with the Agreement, which states that the UK should constitute “a single customs territory”.

UK-mainland based businesses trading in goods with Northern Ireland would have to pay tariffs at the EU Common External Tariff rate, if the EU considers them to be “at risk” of travelling on to the EU.  The EU alone could decide what constitutes an adequate customs check between Great Britain and Northern Ireland, what might be an illegal state aid, or what goods might be “at risk” of travelling on to the EU.

Why should the EU have a monopoly of wisdom over what this Agreement means?  These are not sustainable terms for the long-term relationship between a sovereign state like the UK, and the EU.

The only legitimate pretext for the Protocol to exist at all is to sustain the Northern Ireland Peace Process and the open frontier between the North and South.  It is reasonable for the EU to insist that this open border should not be used as an open back door to the EU for non-compliant goods or the evasion of EU tariffs.  However, if the UK can protect the Peace Process, to keep the border free of checks, while protecting the EU internal market, how can the EU justify their right to enforce their laws on the UK?

The UK Internal Market Bill seeks to address this, and this has reignited old feuds about Brexit. Specifically, it provides powers for ministers to ask Parliament to override any EU ruling, if the EU unreasonably seeks to impose these unnecessary provisions on the UK against our will.

If we end the year without a new trade agreement to supersede the Withdrawal Agreement, Brexit will not be “done”, because we would remain bound to the EU by the Withdrawal Agreement.  The UK signed the Withdrawal Agreement making clear that it should be superseded by a trade deal similar to the EU-Canada FTA.  The EU’s insistence that the Court of Justice of the European Union should continue to have direct jurisdiction over parts of the law of the United Kingdom should be seen for what it is: an inability to move on.

It is part of a an unreasonable pattern of EU behaviour.  The former UK diplomat to the EU, later John Major’s Press Secretary before becoming Tony Blair’s Ambassador in Washington, Christopher Meyer tweeted: “Article 184 of the Withdrawal Agreement commits the parties to negotiate on the future relationship ‘in good faith and in full respect of their respective legal orders’. It’s more than arguable the EU is already in breach on state aids and fish. ‘Trust’ works in both directions.”

Who in their right mind can consider that the Withdrawal Agreement offers any prospect of stability in the long term?  Agreeing to continued ECJ jurisdiction with direct applicability and direct effect could not in any way be considered as taking back control of our laws – the promise made both by Vote Leave and by the 2019 Conservative manifesto.  This would tear open the referendum divisions all over again.

Eurosceptics like me only voted for the Withdrawal Agreement to help the nation out of a paralysing political crisis. We made clear that it remains only the best of a bad job. We were assured that it was just a starting point for negotiations; that it would be superseded by a full FTA and, if needs be, could be repudiated.

This reassurance is buttressed by Section 38 of the Withdrawal Agreement Act. This makes clear that “the Parliament of the United Kingdom is sovereign” and so can repeal any “directly applicable or directly effective EU law”.  The House of Lords voted for that with hardly a squeak of protest.  The EU Parliament ratified the Withdrawal Agreement in full knowledge our Parliament had put this clause into the Bill.  The Prime Minister and our 2019 manifesto both made clear we will “take back control of our laws”, but it is becoming clear the EU may still not accept this and perhaps never intended it.

The UK should first try to re-negotiate the Agreement, but if the EU continues to be unreasonable, the Government is right to develop options.

The first is to enact domestic legislation that will nullify the direct effect and direct applicability of the EU laws.  The UK Internal Market Bill provides for this possibility.  If the EU still insists on applying the terms of the Withdrawal Agreement beyond what is reasonable, then the Parliament must be ready to use these powers. I hope it is not necessary, but if it is the only way to achieve UK prosperity and the kind of sovereign independence which is the democratic right of any nation recognised under the UN Charter, then so be it. And most other nations would respect us for that.

I was a bit surprised when the Northern Ireland Secretary so boldly announced that the Bill “does break international law”. This may be good tough talk, but it does not engender respect.  (Who told him to say that?)  His exact words are not even factually correct.  The key clauses themselves create no breach with EU law.  Even if the Government legislates to “disapply[ing] or modify[ing] the effect” of EU law, the Government may well be able to argue, while contrary to EU law, it is justified and therefore not a breach of international law.

What might be construed as a minor breach of some highly technical provisions of an international agreement does not mean a breach of “the law”, as it is understood under our constitution.  “The law” is the law passed by Parliament.  International law is a mixture of politics, diplomacy and the texts of agreements.  Trade agreements in particular are frequently disputed and dishonoured by illegal protectionism or punitive tariffs without justification.

The EU is a past-master at this.  Such agreements are not enforceable by our own courts in our own law unless Parliament says it should be so.  No self-respecting sovereign state would allow a foreign power the sole right to determine how to interpret and to enforce a bilateral treaty. Parliament has the inalienable right to enact laws to defend our national interests.

Roderick Crawford: The EU must drop its maximalist approach to the Northern Ireland Protocol

29 Jun

Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.

Any final agreement on the future relationship is dependent on the successful implementation of the Withdrawal Agreement; not surprisingly, it is the implementation of the Northern Ireland Protocol where British and EU positions are furthest apart.

The UK and EU have always viewed the protocol through different lenses. In part this difference is because the EU doesn’t fully understand the Belfast Agreement and was incredibly slow to recognise that it undermined rather than supported many of its positions.

Having framed the protocol as a defender of the Belfast Agreement, the EU struggled to accept that the agreement upheld east-west relations as well as north-south ones in ways the protocol undermined. In the context of the political constraints and crisis of last autumn, the concession on consent did bring the protocol sufficiently in line with the Belfast Agreement for the UK to accept it, however unsatisfactory the protocol remained constitutionally, politically and as practical policy.

Now at the implementation stage, both parties are again looking at the protocol through their different lenses. Last month the Government published its approach to implementation; the Commission’s response showed no sign of welcoming a light-touch regime favoured by the UK, stating: “the UK will have to meet all the requirements of the Protocol, rigorously and effectively. That includes putting in place all the necessary checks and controls for goods entering Northern Ireland from Great Britain. That includes applying EU rules on customs and sanitary and phytosanitary protection”.

The strict requirements of the protocol secure the EU’s primary interests, but not those of the UK, so the EU has little incentive to problem solve with the UK to try and realise aims it signed up to but does not really share, or to agree trade offs between these other aims and its core interests. However, there is one factor that alters these dynamics – potentially significantly.

Before the end of 2024 the UK government will provide the opportunity for consent to the continued application of the main economic aspects of the protocol (articles 5-10). Consent will require a simple majority of votes in the assembly. It is assumed that a vote on the continuation of the relevant articles of the protocol will be for no change; this is based on expected party representation after the next assembly election, though this expectation may overstate likely future decline in unionist seats.

The assumption that there will be no vote to change the working of the protocol assumes the question is seen in largely or wholly political and communal terms: a vote against the protocol on principle. However, removing consent to a system because it is damaging economically would not be a matter of political principle and communal allegiance but of mutual and thus cross-communal interest.

A rejection of the relevant economic articles of the protocol would result in an improvement to the working of the protocol, one that would likely command a majority in the assembly; it would not threaten north-south co-operation (excluded from the issues that would be voted on) and could not require a hard border, for which there would be no majority anyway. Addressing the faults of a cumbersome and expensive protocol would benefit Northern Ireland: it would, however, be a loss for the Commission.

The point of the consent principle in the protocol is not only that one day the voice of the people of Northern Ireland will be heard; it is that because this is the case, their voice and interests will be taken into account from the very beginning – from the design stage itself: i.e. now. In the light of this, the EU’s incentive to make a deal that works for everyone and balances the full aims of the protocol is far greater. The EU is no longer the final judge on the acceptability of the protocol.

The question that faces the Commission therefore, is how it can ensure that the operation of the protocol is not overly detrimental to the economic interests of the people of Northern Ireland, thus risking its rejection by democratic vote in just over four years. That is likely to be the cost of a heavy-handed approach to implementing the protocol.

The EU needs to change its thinking from a maximalist approach focused on its limited interests to a more balanced approach that allows trade offs between rigorous application of the Union Customs Code and the economic interests of Northern Ireland. A maximalist approach is not needed to secure core EU interests and a more flexible and innovative approach is needed to manage the trade offs – and these do need managing.

There is plenty of scope to apply exemptions to the strict application of checks and customs duties. For instance, Article 5 of the protocol, on movement of goods, provides that goods that are not at risk of entering the single market will not pay customs duties; there are no practical grounds for strict application of the Union Customs Code to apply to such goods.

Retail shipments bound for the high streets and shopping centres of Northern Ireland would fall within this “not at risk” category, thus preventing hikes in the cost of weekly shopping that would affect people across Northern Ireland. A decision on this is required before the end of the transition period, December 31: it should be made now.

Goods subject to commercial processing cannot be designated “not at risk” of single market entry. Getting the necessary checks and controls undertaken as lightly and swiftly as possible for these goods is a problem that still needs to be solved and agreed but the incentive to do so has not really been there for the EU. Long-established supply chains could have special status and arrangements based on such trusted trading could allow the minimal paperwork.

Consent was not a sop to allow the UK to swallow the protocol whole: it introduced democracy into the working of the protocol and so made it accountable to the people, not just the EU. This change should affect the approach the Commission takes to getting the protocol implemented; like the UK, it now needs a protocol that works with the least hindrance to east-west trade. Failure to get this right risks rejection of the protocol in four years and its replacement with a lighter-touch regime. The EU should work to achieve that regime now.

One of the conditions the EU has set for an agreement on a UK-EU future relationship is respect for democracy. We will see how serious the Commission is about that in the weeks ahead. Michel Barnier warned that there were costs to Brexit for Northern Ireland; there are also costs of democracy for the Commission.