This is the fourth in our brief series of posts on the decision of Her Majesty’s UK Government (“HMG”) to modify—‘clarify’ to use their word—the terms of the Agreement to withdraw the UK from membership of the EU.
We start with the latest spat, which arises because under EU rules there are restrictions on certain meat products, such as sausages, from outside the European Union, which is where the UK is now under Brexit, though Northern Ireland has a different status. This is exactly why the UK’s Internal Market Bill (IMB) was introduced.
According to the Irish Times on Tuesday (24/11/2020) “European Union and UK negotiators are locked in tense negotiations to seek agreement to prevent certain meat products such as unfrozen mince and sausages being blocked for export from Britain into Northern Ireland.
“Certain kinds of foods…from outside the EU are considered so high risk that there is a defacto ban on importing them – a rule that will apply to Britain from January 1st”, if no deal is agreed by then. Talks are under way—but then talks on the future relationship have been fruitlessly under way for many months.
The Withdrawal Agreement (WA)  has the following, where ‘good faith’ has stricter legal application than its common use:
The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement
Clearly the Protocol on Northern Ireland doesn’t do what it says it is supposed to do . Therefore if the IMB breaks international law it is to prevent another international agreement (the ‘Good Friday Agreement’) being sabotaged.
Level playing field issues were moved from the formal international treaty, the WA, to the Political Declaration (PD) in Johnson’s quick renegotiation of Theresa May’s appalling version. However, the signed WA still says of the PD that both parties will use “their best endeavours, in good faith and in full respect of their respective legal orders…” where “good faith” and “best endeavours” have strong legal implications .
Ambrose Evans-Pritchard (Daily Telegraph 13/09/2020) :
“The EU has systematically refused to comply with the judgments of the World Trade Organisation, flouting rulings on GMO crops, hormone beef, and Airbus subsidies, as if the matter were optional. It has repudiated the doctrine of legal supremacy and “direct effect”, the very doctrine that the EU now asserts in the Withdrawal Agreement.
“It has eroded direct effect in a series of cases, culminating in Portugal v Council where the European Court ruled that the EU has no obligation to follow WTO law if it narrows the European Commission’s scope for manoeuvre. How delicious.
“The ECJ ruled in the Kadi-Barakaat case  that the EU should disregard the UN Charter, the highest text of international law, if the Charter is at odds with the EU’s internal constitutional order.
“This is not to say that the EU is the most egregious scoff-law of the Western world but rather that it picks and chooses when it will be bound by international law like everybody else. It will not sacrifice core interests, and it is surely the UK’s core interests that are at stake right now as the Internal Market Bill heads for its second reading….
“The Good Friday accord is also an international treaty. The Withdrawal Agreement cannot override it and impose a new constitutional regime on the Unionists without their consent. The UK internal market bill is therefore a necessary safeguard. It is to be activated only in the case of emergency, should the EU act on the Barnier threats and further weaponise the Protocol. …
“Article 5 of the Protocol states that Northern Ireland is part of the UK customs territory and that there should be no tariffs on goods shipped across the Irish Sea from Britain unless they are re-exported to the Republic, a trivial amount that could be ring-fenced easily.
“But the sub-clauses take away this protection, giving the EU extraordinary powers, should it wish to abuse them. The default setting is that all shipments into Northern Ireland are to be deemed “at risk” – obliging HMRC to collect tariffs – unless the EU agrees to a narrow list. Furthermore, Article 10 gives the EU a lever of control over the UK’s entire state aid and industrial policy by tenuous linkage to Ulster…
“The EU could have opted for subtler statecraft, recognising that Brexit requires a fundamental rethink about the EU’s near abroad, a chance to create an outer ring of friendly trading nations that do not wish to be locked into an emerging unitary state. Instead it has driven the UK further away. Historians will judge this to have been a strategic failure of the first order.”
And from John Redwood MP :-
“The EU Withdrawal Agreement left open a solution to the borders and customs issues in Northern Ireland. The Irish Protocol is at best ambiguous. There is no single interpretation or right understanding of it, as it sought to bridge differences and leave a further period of negotiation to settle the future relationship in a way which would deal with the outstanding issues. Many of the problems would fall away were the EU to accept the UK Free Trade proposal which is included in the Political declaration signed by both parties.
“Thus the Protocol is introduced by a series of propositions which include:”
Nothing in this Protocol prevents the UK from having unfettered market access for goods moving from Northern Ireland to the rest of the UK’s internal market…
Having regard to the importance of maintaining the integral place of Northern Ireland in the UK’s internal market
“So the Agreement accepted the UK could diverge in regulations, and there would be no barriers to trade between Northern Ireland and the rest of the UK, which is what this Bill [the IMB] seeks to implement. The Agreement also put in various Union requirements which they now wish to highlight at the expense of these UK protections.
“In case there is doubt, as there are some conflicts with other aims and clauses in the Agreement, Section 38 of the UK’s EU Withdrawal Act provides for a UK Parliamentary override of the provisions if necessary.
“Mrs May and her advisers would not accept such a UK provision, as they thought it meant we would not properly implement the Agreement. The EU sustained no objection when this crucial safeguard was inserted and passed. They must have known it meant conditional or qualified implementation. Nothing is agreed until everything is agreed was a sensible mantra. I would not have voted for withdrawal without the crucial sovereignty override as I made clear at the time. I also made clear I expected we would need to use it if the EU did not proceed to an FTA respecting our sovereignty.
“I also now have confirmed that the UK government also thinks it is acting legally. Speaking in the House of Lords, Lord Keen a Law Officer in the government said: ‘I continue in post and continue to advise, encourage and stipulate adherence to the rule of law – understanding that, from time to time, very real tensions can emerge between our position in domestic law and our position in international law.
‘It is not unprecedented for legislation passed by this parliament to cut across obligations taken at the level of international law. In those circumstances, domestic legislation prevails’”
 The 2019 WA: https://www.legislation.gov.uk/ukpga/2020/1/enacted/data.htm
 The Levellers The Political Declaration (PD) can be downloaded from here:
 Ambrose Evans-Pritchard (Daily Telegraph 13/09/2020)
 The Kadi-Barakaat case in the CJEU (2008):
The Court of Justice of the European Union (CJEU) held that the Treaties are not merely agreements between member states, but agreements between the peoples of Europe. The judges of the CJEU considered that the Treaties had established a ‘new legal order’, beholden to, but distinct from the existing legal order of public international law. In other words, the Treaties created a municipal legal order of trans-national dimensions, of which it forms the basic constitutional charter.
The relationship between international law and the EU’s legal order is governed by the Union’s legal order itself, and international law can permeate that legal order only under the conditions set by the constitutional principles of the EU.
The CJEU judgment reflected a choice between absolute acceptance of international law and the preference for its own constitutional requirements, on the assumption that international law may still be in a state of development…
 John Redwood