When Brandon Lewis, the Secretary of State for Northern Ireland, admitted that the Internal Market Bill did indeed breach the UK’s international treaty obligations, albeit in a “specific and limited way” it was inevitable that this would cause an almighty row, and so it has proved.
But was he wise to say this? Indeed, is the government acting properly or improperly in introducing the Internal Market Bill? It’s perhaps worth reflecting, first of all, on the fact that the Withdrawal Agreement contains the following clause: “If the application of this protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguarding measures.”
So the introduction of the Internal Market Bill appears to be based on this ability to “unilaterally take appropriate safeguarding measures.” The issue then arises whether the government is right to act in this way. Here it becomes intensely political, and opinions will inevitably be divided, as they always have been on Brexit. But the UK’s chief Brexit negotiator, Lord Frost, is adamant that the EU has threatened not to list the UK as a third country for food imports which would, in practical terms, mean the UK mainland could not import food to Northern Ireland. I think everybody would agree that this would be an extreme development, whatever one’s views are on Brexit.
The odd thing is that the EU already knows what our food standards are so its threat seems wholly unnecessary. The EU’s response is that it does not know what they may be in the future. But then, perhaps, nor does the UK. Is the EU suggesting the UK would have to commit to certain standards today which will apply for ever and a day without the ability to change them? Moreover, there are established procedures for notifying countries of changes to food standards via the WTO. So why can’t the EU rely on those procedures.
It is also worth noting that in the Northern Ireland Protocol – which is an integral part of the Withdrawal Agreement – the EU agreed to recognise “Northern Ireland’s integral place in the UK’s internal market” and to pledge its “best endeavours to facilitate the trade between Northern Ireland and all other parts of the UK avoiding controls at the ports and airports to the extent possible”. The question arises, then, whether the EU’s threat not to list the UK as a third country for food imports, with the consequences that flow from this, is in breach of this commitment.
If you look at the whole issue from a certain perspective then the Internal Market Bill is “simply” a legitimate response to an extreme threat from the EU which will lead to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. It is a means of applying a response to the EU’s extreme negotiating strategy and the government has made clear it hopes that the powers in the Bill will never need to be used. The Bill is simply trying to apply leverage to the trade negotiations. What’s wrong with that? And if the powers in the Bill are never used, then the UK will not be in breach of its international treaty obligations.
Of course, many see the Bill as an extraordinary breach of trust, a huge stain on the image of the UK and its reputation for upholding the rule of law. They say the UK will never be trusted again, that its standing in the world will be seriously diminished. But a more neutral observer might see the EU’s own negotiating strategy as a breach of trust too. Nobody has even suggested this. All of which goes to show that both sides of the argument may be right and wrong all at the same time, such is the complexity of Brexit and the extreme and strongly held views that it generates.
But if Brandon Lewis had not used the provocative language that he did, perhaps this row would never have materialised in the first place and the Internal Market Bill would have been seen through a completely different prism, simply a responsible Bill to protect the UK’s interests, promoted legitimately under the terms of the Withdrawal Agreement itself.