Summary
The European Union Committee is charged with scrutinising “matters relating to the UK’s relationship with the European Union, including the implementation of the UK/EU Withdrawal Agreement, and the Government’s conduct of negotiations on the United Kingdom’s future relationship with the European Union”. The United Kingdom Internal Market Bill, in particular Part 5, has a direct bearing on these matters, and we have therefore prepared this report to inform the House’s scrutiny of the Bill.
The tensions inherent in the Protocol on Ireland/Northern Ireland were not hidden—they were apparent from the outset. The expectation must therefore have been that the two sides would, in good faith, negotiate a pragmatic compromise, so as to meet the objectives set out in the Recitals and Article 1 of the Protocol: respecting the essential State functions and territorial integrity of the UK; addressing the unique circumstances on the island of Ireland; and protecting the 1998 Belfast/Good Friday Agreement in all its dimensions.
If the Government judges that the EU is not implementing the Protocol in good faith, the Protocol itself and the Withdrawal Agreement provide multi-layered remedies. Moreover, the trade aspects of the Protocol are also subject to a periodic consent mechanism. Should they no longer be acceptable to the people of Northern Ireland, there will be a democratic process by which they can be terminated.
The Government has offered no convincing explanation of why, rather than making use of these safeguards, it has chosen to address its concerns over the implementation of the Protocol by means of the United Kingdom Internal Market Bill, which would confer upon Ministers powers to make regulations that would breach an international agreement that the UK ratified as recently as January 2020.
On 8 September 2020 the Secretary of State for Northern Ireland told the House of Commons that the Bill “break[s] international law in a very specific and limited way”. Since that time, the Government has failed either formally to retract the Secretary of State’s statement of 8 September 2020, or to put forward a coherent or consistent argument to support the lawfulness of the Bill. Until it does so, it is difficult to avoid the conclusion that the Bill does indeed contravene international law.
This breach of international law has been entered into knowingly. The Bill strikes at the heart not only of the Protocol, but of the Withdrawal Agreement.
We acknowledge the Government’s commitment to the Belfast/Good Friday Agreement, and its legitimate concern that a rigid interpretation of the Protocol, by creating barriers between Northern Ireland and Great Britain, could undermine that Agreement. Yet the Belfast/Good Friday Agreement is itself made up of three interlocking strands, supporting North-South, East-West and internal Northern Ireland relationships. All parties to the Agreement, including the United Kingdom Government and the European Union, have an obligation to maintain this delicate balance. But by focusing solely on Northern Ireland’s relationship with the rest of the UK, the Bill fails to reflect that balance, and we therefore consider that in principle, if not in intent, it could also pose a threat to the maintenance of the Belfast/Good Friday Agreement.
As for the wider political context, in bringing forward the Bill the Government alleged that the EU had not been acting in good faith, and in particular, that it had, by withholding third country listing for the United Kingdom, been threatening to prevent the transport of food from Great Britain to Northern Ireland. The Government did not disclose any evidence to support this allegation, which was denied by the EU, nor does the Bill itself touch on this issue. We nonetheless welcome the fact that that there has now been progress on this issue.
New clause 56, added to the Bill by the Commons, provides that a further resolution of the House of Commons will be required before a Minister can use the powers contained in Part 5. The clause provides no equivalent role for the House of Lords. Furthermore, the addition of this further domestic safeguard does not alter the Bill’s fundamental incompatibility with the Withdrawal Agreement.
Whatever the substance of the disagreements that have arisen in the future relationship negotiations and in the Withdrawal Agreement Joint Committee, the Government’s pre-emptive action has, in effect, placed the United Kingdom in the wrong. In the process it has damaged the United Kingdom’s international reputation as a defender of the rule of law.
In summary, the Government has not disclosed any evidence that the EU has acted in bad faith; it has not explained why, if the EU has acted in bad faith, it chose not to use the safeguard, arbitration and dispute resolution procedures contained in the Protocol and the Withdrawal Agreement; and it has not explained why it chose instead, by publishing Part 5 of the Bill when it did, to take pre-emptive and unilateral action. In the absence of these explanations, we hope that the Government will, when the Bill is read a second time, indicate a change of heart, and undertake to table amendments to remove Part 5, while giving renewed and more urgent focus to the task of reaching an agreement with the EU both on the future UK-EU relationship, and on the implementation of the Protocol.