Sovereignty Again

In our previous post we noted that the Government has acknowledged that the bills to clarify the Withdrawal Agreement will transgress international law. In the light of various comments we need to qualify this.

The European Union (Withdrawal Agreement) Act 2020 (“the Withdrawal Agreement Bill (WAB)”) has a clause referring to the sovereignty of the UK Parliament [1]:

Clause 38: Parliamentary sovereignty

(1) It is recognised that the Parliament of the United Kingdom is sovereign.

(3) Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.

The explanatory notes provided by the UK Government tells us a little more about what this means to the Government [2]:

The European Union (Withdrawal Agreement) Bill implements the Withdrawal Agreement, as agreed between the United Kingdom and the European Union (EU). The Bill is required to implement the Withdrawal Agreement for it to have domestic legal effect and to enable the UK Government to ratify the Withdrawal Agreement.

The Bill provides for the direct application of the Withdrawal Agreement provisions in domestic law where relevant, whilst also recognising the sovereignty of the Parliament of the United Kingdom. The Bill amends the EU (Withdrawal) Act 2018 to ensure it reflects the terms of the Withdrawal Agreement.

This Bill also includes provision relating to facilitating access for Northern Ireland goods to the market in Great Britain…

Clause 38 addresses the relationship between the constitutional principle of Parliamentary sovereignty and the law made applicable by the separation agreements as it would apply in the UK after exit day by virtue of the Withdrawal Agreement…The clause recognises that the application of this law through the Withdrawal Agreement Bill does not constitute a derogation from the principle of Parliamentary sovereignty.

Subsection (1) recognises that, as a matter of common law, the Parliament of the United Kingdom is sovereign.

Subsection (3) recognises that, accordingly, nothing in the Withdrawal Agreement Bill derogates from the fundamental principle of Parliamentary sovereignty.

…the clause acknowledges the pre-existing legal position as regards Parliamentary sovereignty.

What follows is our interpretation of the ‘ruckus’ caused by this Bill and the Internal Market Bill (IMB) [3]. Where appropriate we quote from our sources (find the links at the end).

Either the word ‘sovereign’ means what it says or it doesn’t. The Cambridge English Dictionary has this definition: “having the highest power or being completely independent“, which would seem to imply that the Bill has a legal safeguard that perhaps the WA doesn’t have. The WA is obviously dangerous (as we saw in our previous post [4]) so a safeguard is needed, but how is the Internal Market Bill changing what has already been agreed by signing the WA? Is it more than the EU hadn’t spotted the safeguard any more than the UK Government hadn’t spotted the danger? If so, then it’s back to the usual game-playing, otherwise called ‘negotiating’.

One reason for the UK to leave the EU is that as a member—and as a sub-member under the WA—the UK does not have the “highest power”, nor is it “completely independent” and that is what the Internal Market Bill (IMB) is designed to put right; and that is no doubt why the EU (and Remainers) are so uptight about the IMB.

The statement by the UK’s Northern Ireland Minister, Brandon Lewis, that, “…this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4, in certain very tightly defined circumstances” has stirred up a loud controversy. One result is to put the resolution firmly into the hands of senior lawyers, leaving politicians—and the rest of us—having to take their word. And since their words are mutually incompatible we are left in limbo.

We offer below some comments, from both experts and others, while we acknowledge that we hope the outcome will restore Britain’s sovereignty (in the sense defined above) but are unsure whether the UK Government will hold the line and retain (or restore) Britain’s reputation for fair play.

Adrian Hill [5]: Boris Johnson “will not be ‘backing down’ over his plan to change the terms of the Withdrawal Agreement regarding the Northern Ireland Protocol that he’s finally discovered – if at the eleventh hour – never made sense.

The final talks have started with a major row between London and Brussels and with the European Commission’s President, Ursula von der Leyen, threatening the talks will be off if the UK ‘reneges’ on this matter of ‘trust’.

An international treaty may have been signed by another country or an organisation (such as the EU) and the UK, but that treaty only comes into effect when it has been voted through as a Bill in our Parliament.”

Martin Howe QC [6]: “There are good arguments that the government’s clauses will not breach international law.

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.

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 [Northern Ireland] 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.

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.

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

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.

Parliament has the right to pass the clauses which the government is proposing and thereby override these errant clauses in the Protocol.”

That seems clear enough but the next contributor, another legal eagle, argues that it is not so simple.

(By the way we prefer to use the full title ‘Court of Justice of the European Union’ (CJEU) since the Court covers the member states of the EU and not Europe as a whole; but we have to recognise that ‘European Court of Justice’ (ECJ) has become a convenient, if misleading, shorthand.)

Kenneth Armstrong [7] “The United Kingdom Internal Market Bill [IMB] has now been published. …it is the changes to the implementation and application of the Withdrawal Agreement and the NI Protocol that are both eye catching and eye watering.

Article 4 of the Withdrawal Agreement seeks to apply the direct effect and enforcement qualities of the EU treaties in the context of the Withdrawal Agreement. …UK courts are to be empowered to disapply inconsistent and incompatible provisions of domestic law. The UK agreed to enact primary legislation to ensure that UK courts would have this jurisdiction.

The UK duly implemented the Agreement through the European Union (Withdrawal Agreement) Act 2020

In summary, the Act deploys the same kind of wording and technique used in section 2(1) of the European Communities Act 1972 to secure the direct effect of the Agreement and the availability and enforcement of its provisions without further enactment….By using these familiar constitutional techniques, no doubt the intention was to reassure the EU that the UK intended to fulfil its legal obligations.

The fly in the ointment, however, is contained in section 38 of the 2020 Act. …it was always the case that any legislation implementing the Withdrawal Agreement was subject to the principle of the sovereignty of Parliament and so spelling this out in the Act did not of itself render the Act incompatible with Article 4 provided that in practice the Agreement could be enforced and inconsistent provisions disapplied.

This is where certain provisions of the Internal Market Bill drive a coach and horses through the UK’s implementation of the Withdrawal Agreement.

The first issue is whether the Bill does in fact produce incompatibilities with requirements under the Withdrawal Agreement. The second issue is – if there are incompatibilities – whether the Article 4 requirement of disapplication can itself be disapplied.

There are two main areas of potential conflict between the UK’s proposals for an internal market and the operation of the NI Protocol – the movement of goods between NI and GB and the application of EU state aid rules.

As regards the former, while it is clear that in respect of goods, NI remains bound to comply with the EU acquis on customs requirements and other regulatory requirements, Article 6 of the Protocol does also state

Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market

Squaring the circle between compliance with EU rules and ‘unfettered access’ was never going to be an easy task and one that would require collaboration between the EU and the UK through the Joint Committee

Clause 43 of the [Internal Market] Bill purports to modify the application of Article 10 of the Protocol which applies EU state aid rules to Northern Ireland. The Secretary of State is empowered to make regulations about the interpretation of Article 10 – Article 13(2) of the Protocol states that its provisions have to be interpreted in conformity with the relevant case law of the Court of Justice of the EU – and to disapply or modify the effect of Article 10.

So it is clear that the Bill would include provisions that are inconsistent or incompatible with the Agreement. In terms of Article 4 of the Agreement, those provisions should be capable of disapplication by UK courts.

The result is the dilemma familiar to UK constitutional lawyers and one much discussed during the lifetime of the UK’s membership of the EU. Should a UK court give effect to substantive provisions of domestic legislation which are clearly and admittedly in breach of the obligations entered into by the United Kingdom and given domestic legal effect through legislation passed to ensure the UK’s orderly withdrawal from the EU, or should a court disapply such provisions as being inconsistent with the Withdrawal Agreement and not saved by the devices created by legislation which are themselves incompatible with the Agreement?

It is hard to see how this can avoid embroiling the [UK] Supreme Court in another round of Brexit litigation.’

[1] European Union (Withdrawal Agreement) Act 2020:

https://www.legislation.gov.uk/ukpga/2020/1/contents/enacteded

[2] UK Government: EUROPEAN UNION (WITHDRAWAL AGREEMENT) BILL: EXPLANATORY NOTES:

https://publications.parliament.uk/pa/bills/cbill/2019-2019/0007/en3/20007en.pdf

[3] The Internal Market Bill:

https://publications.parliament.uk/pa/bills/cbill/58-01/0177/20177.pdf

[4] Will the UK be Sovereign Again?

[5] Adrian Hill (former diplomat) in The Conservative Woman (09/09/2020):

https://www.conservativewoman.co.uk/tcws-brexit-watch-johnson-can-indeed-rip-up-the-withdrawal-agreement/

[6] Martin Howe (Chairman, Lawyers for Britain)(Daily Telegraph 11/09/2020):

https://www.telegraph.co.uk/politics/2020/09/10/forget-foaming-indignation-brexit-bill-perfectly-justifiable/

[7] Kenneth Armstrong (Professor of European Law, Cambridge University) in UK Constitutional Law Association (09/09/2020):

https://ukconstitutionallaw.org/2020/09/09/kenneth-armstrong-can-the-uk-breach-the-withdrawal-agreement-and-get-away-with-it-the-united-kingdom-internal-market-bill/


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