The EU Commission has begun legal action against the UK Government for breaking the Withdrawal Agreement. A nation doesn’t break any international laws by enacting a bill though it might if it acted on it but that would need to be decided by a neutral, impartial court.
No law has (yet) been broken as a result of the UK Internal Market Bill (UKIMB) passing its first reading in the Commons, it is not even UK law yet. If the Bill passes all its stages and becomes an Act the Government might use its provisions to protect its own market but only if the EU acted unreasonably in blocking trade between Northern Ireland and mainland Britain. If the UK ignored the EU’s decisions and the court decided that was in bad faith then the UK would be the party in breach. It would be for a court to decide whether an action was unreasonable and therefore represented bad faith, but this applies both ways.
To use the EU’s own expression, the UKIMB is a ‘backstop’ which would be invoked if (and only if) there was no trade agreement and the EU acted in bad faith by interfering with the UK’s internal trade arrangements. In this case the Bill or Act shouldn’t really be necessary because ‘bad faith’ would be a breach of the Agreement, but that assumes that the UK immediately revoked the Withdrawal Agreement if this occurs. However those EU laws which under the Northern Ireland Protocol continue to apply next year and beyond have Direct Effect on UK law so that our courts would be bound by them unless Parliament has overridden them. Direct Effect means that EU legislation passes directly into national law without national parliaments having to accept, or even debate, the rules or changes to the rules. The UKIMB anticipates this problem and would ensure (if passed by both Houses) that its rules take precedence in judgements by UK courts over those of a foreign, potentially malign, power. The Bill is therefore more than a political gesture, it is an essential safety net (see the quotations below for supporting evidence**; emphasis added).
It is clear why the Commission has begun the action now. The Withdrawal Agreement allows that legal actions initiated before the Transition Period has ended will continue beyond the final break (on December 31st). Furthermore the action would be judged by the CJEU under the appalling terms agreed by Mrs May which Johnson was not able to change in time. This is hardly an impartial court and it would break international practice if one party to a treaty could decide the case against the other.
Finally, we should remember that if the NI Protocol were applied other than lightly and in good faith it would break a far more serious international treaty, one that the EU had no part in negotiating or agreeing but could cost lives if breached – the Good Friday Agreement. It makes no difference whether Barnier threatened the UK side with an overly officious implementation (which he denies), it could happen without the UKIMB backstop (see Will the UK be Sovereign Again?).
*The points in this posts are described in greater detail by Martin Howe, Chairman of Lawyers for Britain:
From Article 67(1)of the Withdrawal Agreement (WA): (Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities)
In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council1, Article 19 of Regulation (EC) No 2201/2003 or Articles 12 and 13 of Council Regulation (EC) No 4/20092, the following acts or provisions shall apply:
(a) the provisions regarding jurisdiction of Regulation (EU) No 1215/2012;
ARTICLE 159(1): (Monitoring of the implementation and application of Part Two)
In the United Kingdom, the implementation and application of Part Two shall be monitored by an independent authority (the “Authority”) which shall have powers equivalent to those of the European Commission acting under the Treaties to conduct inquiries on its own initiative concerning alleged breaches of Part Two by the administrative authorities of the United Kingdom and to receive complaints from Union citizens and their family members for the purposes of conducting such inquiries. The Authority shall also have the right, following such complaints, to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking an adequate remedy.
From ARTICLE 174(1): (Disputes raising questions of Union law)
Where a dispute submitted to arbitration in accordance with this Title raises a question of interpretation of a concept of Union law, a question of interpretation of a provision of Union law referred to in this Agreement or a question of whether the United Kingdom has complied with its obligations under Article 89(2), the arbitration panel shall not decide on any such question. In such case, it shall request the Court of Justice of the European Union to give a ruling on the question. The Court of Justice of the European Union shall have jurisdiction to give such a ruling which shall be binding on the arbitration panel.
Quotations concerning changes to laws having Direct Effect:
From Article 36.1 of the Withdrawal Agreement (WA: Development of law and adaptations of Union acts)
Where Regulations (EC) No 883/2004 and (EC) No 987/2009 are amended or replaced after the end of the transition period, references to those Regulations in this Agreement shall be understood as referring to those Regulations as amended or replaced, in accordance with the acts listed in Part II of Annex I to this Agreement.
The Joint Committee shall revise Part II of Annex I to this Agreement and align it to any act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 as soon as such act is adopted by the Union.