Daniel Hannan: Voters tend to get some things wrong, but the big things right. So it is with the Internal Market Bill.

16 Sep

Daniel Hannan is a writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

As usual, the public has reacted to Westminster’s hysterics with an amused shrug. Lawyers and diplomats, pundits and politicians, are in a frenzied rage about the Government’s announcement that it might violate the Withdrawal Agreement. In some cases, the rage is confected; but in most, it is genuine.

The country as a whole, though, takes an altogether more relaxed view. Where politicians get bogged down in detail, voters tend to see things impressionistically. They sense – correctly – that international law is protean and often disputed.

Countries are forever being charged with infracting this or that treaty. The EU, for example, is in breach of several trade agreements, ranging from its groundless bans on overseas agricultural produce to its illicit Airbus subsidies. It also frequently violates its own treaties, sometimes on issues of enormous consequence. The eurozone bailouts, for example, were patently illegal, not just in the sense that they had no basis in the European treaties, but in the sense that they were expressly prohibited. No one in Brussels tried to claim otherwise. Rather, they pleaded raison d’état.

So when British voters see Eurocrats fainting like so many affronted Victorian matrons, they just don’t buy it. They know that Brussels has negotiated in a bellicose spirit from the start. They sense the difference in tone between Michel Barnier and negotiators from, say, Australia or Japan, who are uncomplicatedly keen on maximising mutual gains.

Where Labour and a handful of Tories see a violation of international law, most voters see the people who have always backed Brussels doing so once again. No doubt John Major and Tony Blair think of themselves as distinguished elder statesmen cautioning their country against error; but I’m prepared to bet that most people’s reaction will be, “Well, they would say that, wouldn’t they?”

For what it’s worth, I think most of the Bill’s opponents have decent motives. Some, no doubt, are driven by personal rancour, or by a reflexive opposition to anything the Prime Minister does. Some are still sore about Brexit. But many have genuine worries about international law.

I happen to think they are wrong. First, the Bill itself doesn’t violate any laws: it merely creates an emergency mechanism by which the most damaging aspects of the Northern Ireland Protocol can be prevented. Second, the bits that Brussels dislikes would come into effect only if, despite all its promises, the EU failed to agree a trade deal. Third, even if it came to that, there is a strong argument that not taking preventative action would constitute a worse legal breach than taking it – in other words, that suspending some aspects of the Protocol would be a lesser infraction than violating the principle, affirmed both in the Belfast Agreement and in the Protocol itself, that Northern Ireland’s status cannot change without its consent.

This last point barely featured in the debates, but it strikes me as elemental. If there is a clash between legal obligations – if, that is, we can only apply aspects of the Protocol by breaking other laws, such as Article VI of the 1801 Act of Union – then we should give  priority to our domestic constitutional order. This is not some Powellite assertion of British exceptionalism. It is a widely-shared principle upheld by, among others, the EU.

For example, in its 2008 ruling on the Kadi case (involving a Saudi businessman whose assets had been frozen), the European Court of Justice reiterated its doctrine that “a treaty can never enjoy primacy over provisions (including protection of fundamental human rights) that form part of the constitutional foundations of the Union.” That is, of course, precisely the argument that the Attorney General has made in a UK context.

To be clear, I am not suggesting that lots of people have pondered ECJ precedent and concluded that the EU is applying a double standard. Rather, in a shrewd and largely instinctive way, people have sussed that Britain faces an ill-disposed and hypocritical negotiating partner which is making unreasonable demands.

That, ultimately, is why Boris Johnson will get his Bill. It’s not just that he is right to have acted as he has (though he is). It’s that the country is with him. The Internal Market Bill has lined up everyone against the Government – except the general population. That split – radical lawyers, Europhile politicians, unelected peers and woke actors versus everyone else – is one with which Tory strategists are comfortable.

This is emphatically not an argument for always following public opinion. Apart from anything else, we are a fickle species. We demand the strictest possible lockdown, complete with curfews, and then complain about the downturn. We ask for increases in public spending, but we will react with fury when the money runs out. The last thing we want, when confronted with the consequences of our own choices, is to be reminded of what we asked for. Gavin Williamson could no more say “but you all told me to close the schools” Tony Blair could say “but you all supported the Iraq invasion when it was launched”. As Dryden put it, “Crowds err not, though to both extremes they run”.

Governing by opinion poll fails in its own terms. But, over the cycle, people generally get the big calls right. Not always; but more often than the elites. Brexit was a case in point. So is the Internal Market Bill.

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.

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.

Garvan Walshe: Breaking the Withdrawal Agreement risks the No Deal Brexit this Government was elected to avoid

10 Sep

Garvan Walshe is a former National and International Security Policy Adviser to the Conservative Party.

The trouble with international agreements is that they are, well, international. By this I mean that sovereignty can’t be used as a trump card in the way that parliamentary sovereignty can in most domestic law.

This strongly suggests that the Government’s course of action in seeking, in the disarmingly frank words of Brandon Lewis, “to break international law in a specific and limited way” has not been properly thought through.

The domestic problems with this approach are well known. Any legislation to break international law will run into trouble in the Lords, which will feel entitled to block it, as it was not only absent from the election manifesto, but in fact directly contradicts its promise to implement the Brexit deal sealed in November 2019.

There is also the matter of the ministerial and civil service codes, which forbid the breaking of the law (the removal of the word “international” from the code makes no difference in practice), and are likely also forbid actions openly directed towards that aim.

It is therefore an open question of constitutional law whether legislation to this end, introduced improperly by ministers, and drafted by civil servants would be valid. It is rather clearer that ministers or officials participating in the production of such legislation risk falling within the ambit of the common law offence of misconduct in public office.

But my concern here is international. The foundation of international law has long been that states are sovereign. As well as meaning that they begin with full powers to arrange their internal affairs, it also means they have the power to make agreements with each other. An agreement means that the states accept obligations to each other, which is what makes a treaty different from a state making a unilateral declaration to itself. While a state retains the practical power to break an international agreement, it cannot change the meaning of the agreement on its own.

It is also a consequence of this sovereign power that states are able to revise treaties they make, by mutual agreement, and it is of course often the case that this revision is dictated by power politics, but even that is different from mere reneging on a treaty. Nevertheless, the power of revision is usually held collectively by the states that signed the agreement, not by individual signatories. Some treaties, like indeed the Treaty of European Union provide an exit mechanism (Article 50), but others, like the Withdrawal Agreement, do not.

The Government might have been better placed to argue that it was trying to use its residual sovereign power to seek to renegotiate the Withdrawal Agreement, which it had concluded under the duress of the two-year withdrawal period contained in Article 50.

While that would probably not have gone down well in Brussels, openly seeking to break these particular parts of the withdrawal agreement is rather more challenging, because Michel Barnier’s team built in three levels of safeguards against what it would consider to be “perfidious Albion.”

First, the relevant aspects of the Ireland/Northern Ireland protocol are governed by EU law, interpretable by British courts and, ultimately, European Court of Justice. Because of the way the UK incorporates treaties (including treaties that give effect to legal systems like the EU’s) into its domestic law, sufficiently explicit legislation could probably escape disapplication by UK courts.

But this in itself would be a direct violation of the agreement, which the European Court could be expected punish with a fine. Though the UK could refuse to pay the fine, on the grounds that it was acting according to it own law, this would just trigger the second level of dispute resolution, which is the Joint Committee established to be established under the agreement.

If the Joint Committee cannot resolve the dispute to both sides’ satisfaction, and in this case it is hard to see how it could, the case would be submitted to an arbitration panel at the Permanent Court of Arbitration. Lewis’s declaration that the UK intends to “break international law” is unlikely be helpful to the British case.

Now, the UK may as a sovereign state in practice refuse to abide by the arbitration panel, but in that case the agreement (Article 178, paragraph 1) provides for the panel to “impose a lump sum or penalty payment”.

If the UK refuses to pay that, the subsequent paragraph allows the EU to suspend either parts of the Withdrawal Agreement with the UK, or of other agreements it has. These include agreements on aviation freedoms, equivalence for financial services, “data adequacy” vital to the tech sector, and the right of truck drivers to travel to the EU. This would amount to the “no deal Brexit” that the Prime Minister’s withdrawal agreement, endorsed in the 2019 general election, was supposed to avoid.

Now that the Government does not need the votes of the DUP, it should think carefully about whether it would rather spend the rest of its term engaging in an optional legal fight with the EU, or, having got Brexit done at the end of the year, stick to running the country it was elected to govern.

Emily Barley: The Government’s Brexit plan puts us at risk of substandard and corrupt justice systems in EU member states

21 Jul

Emily Barley is Director of Due Process, the anti-EAW campaign group, and Chairman of Conservatives for Liberty.

Brexit campaigners hailed a massive victory when, back in February, the Government announced that we will be leaving the European Arrest Warrant (EAW).

Finally, we knew we’d be out of the jurisdiction of the European Court of Justice (ECJ), be able to restore our great British tradition of civil liberties, and could protect people living here from the abuses and mistakes of the EAW processes, substandard EU justice systems, and medieval European prisons.

But there was a sting in the tail of the Government’s announcement: sure, the plan was to leave the EAW, but then replace it with something that looks suspiciously like the EAW.

The EU-Iceland-Norway agreement the Government is modelling its proposed extradition agreement on has been described by experts as the “EAW-lite”, and has all the same problems that have raised such widespread objections to the EAW.

Under the Government’s plan we would be technically outside of the ECJ, but our courts would still need to take into account its judgments – in practice continuing the same state of affairs as now and not fulfilling the expectations Boris Johnson raised when he promised to take us out of it.

This new EU-wide agreement would have the same foundation of “mutual trust and recognition” between the UK and EU member states which requires British judges to turn a blind eye to serious abuses and mistakes in the substandard and corrupt justice systems of the likes of Poland, Greece, Hungary and Romania.

This system leaves us all vulnerable. It has led to cases like that of Edmond Arapi, who was convicted of a murder in Italy that happened while he was at work in the UK; Andrew Symeou, who was held in a Greek hell-hole for ten months after an ill-fated holiday where police beat false accusations out of his friends, and Alexander Adamescu, whose case is the most infamous and egregious example of the failings of the EAW going through the UK courts right now.

Adamescu is sought by Romanian authorities to face charges of corruption in a business insolvency case. There is no evidence against Adamescu, but that doesn’t matter under the EAW – because British judges cannot look at the evidence, or lack of it, even if they wanted to.

Human rights campaigners have described the conviction in 2014 of Alexander’s father, Dan Adamescu, on the same charges in the same case as a “show trial” which violated the presumption of innocence – but that doesn’t matter under the EAW, because the foundation of “mutual trust and recognition” means British judges must have blind faith in the justice systems of other countries.

Even when evidence mounts that the case against Adamescu is a politically motivated stitch-up by an unreformed communistic state, British judges must look the other way, required to believe that EU member states always act with integrity and in accordance with the law. It would be laughable if the consequences of the UK continuing with an EAW-lite extradition system weren’t so serious.

The Government says it wants to introduce “further safeguards” into this “new” system, but the ones we really need – like asking judges to look at the evidence against the accused (a prima facie case), and not sending people to countries with corrupt justice systems and medieval prisons – are incompatible with its plan.

We need to do this thing properly, and drop the idea of an EU-wide extradition agreement.

What we need instead is a series of bilateral agreements which acknowledge the varying quality of justice systems in EU member states and introduce a diplomatic check in the process, as is already the case with extraditions to non-EU countries.

I set out exactly how this would work in my report The future of extradition from the UK: Protecting fundamental rights, recently published by Due Process. There’s a lot at stake here. The Romanian state has already killed Dan Adamescu, and has its sights set on his son.

Innocent people going on holiday to EU countries are at risk of having their lives turned upside down, like Symeou’s was. And even those who stay at home, minding their own business and never setting foot in a particular country, are at risk of accusations and convictions under the EAW, like Arapi.

Johnson won the election last year with a commitment to take us out of the clutches of the EU, and unless that includes abandoning the idea of a dangerous EAW-lite system, he will have failed.