There has been much speculation that the disastrous Northern Ireland Protocol is about to be at the very least unilaterally amended via the Internal Markets Bill (which will become an ‘Act’ once passed into law).
The question I have heard asked most in recent days is ‘what does that mean’? This article seeks to answer that question in accessible and understandable terms.
Leaving the European Union is governed by the Withdrawal Agreement Act 2020. This gives effect to the Withdrawal Agreement.
It is important from the outset to distinguish between the Withdrawal Agreement Act 2020, and the Withdrawal Agreement. The former is domestic legislation giving effect to the agreement, while the latter is a binding international treaty.
It is somewhat similar to the Belfast Agreement, which is given effect in domestic law by the Northern Ireland Act 1998. In 2017 writing on Unionist Voice I argued that the UK could always unilaterally amend the workings of the Belfast Agreement by simply amending, or repealing, the Northern Ireland Act 1998. This was dismissed as an ‘extremist’ and ‘dangerous’ legal theory at the time given how it would pit domestic legislation against international law. This is precisely the approach now being taken in relation to the Withdrawal Agreement.
It is not however as simple as passing a conflicting piece of legislation, such as the Internal Markets Bill, and all is solved. Section 7A of the Withdrawal Agreement Act gives its provisions direct effect, as required by Article 4 of the Withdrawal Agreement treaty.
This means that in circumstances within which a piece of domestic legislation conflicts the Withdrawal Agreement Act 2020, such legislation must be interpreted as to be compatible with the 2020 Act. This means UK courts would be bound to give direct effect to the Withdrawal Agreement Act 2020, meaning it would in effect supersede conflicting legislation such as the Internal Markets Bill.
The route therefore which the Government must take, if it genuinely wishes to disapply provisions of the Withdrawal Agreement Act 2020, is to explicitly make clear within the Internal Markets Bill that its provisions apply regardless of Section 7A of the Withdrawal Agreement Act. This is basically an instruction to our courts to ignore Section 7A when it comes to the provisions of the Internal Markets Bill.
This could, of course, have consequences for international relations. There is however no domestic remedy within the jurisdiction of the United Kingdom. Parliament is sovereign, and the courts must apply the law as Parliament makes it.
Whilst we are yet to see the workings of the Bill, there is some suggestion it simply irons out some issues in relation to unfettered access within the UK’s internal market. If this is the case it is bemusing as to why there is a shocked outcry; a simple glance at paragraph 10 of British Government Commitments under New Decade New Approach (page 47 of the deal) would outline that it was made clear explicitly that the British Government would legislate to ensure unfettered access. This is what all signatories to that deal signed up to.
By Jamie Bryson