Brexit Sabre-rattling?

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“The EU has since its inception had the power to bring before the European Court of Justice any Member State which breaches its Treaty obligations.”

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On 8 September 2020 the Northern Ireland Secretary Brandon Lewis made a bombshell announcement in the House of Commons. The Internal Market Bill would give the Government the power to depart from provisions in the Withdrawal  Agreement, an international treaty agreed with the EU less than a year previously. The object of the provisions concerned was to avoid a hard border on the island of Ireland if a deal proved elusive. As Lewis candidly acknowledged, departing from those provisions would ‘break international law in a specific and limited way’.

Lewis’ announcement caused uproar. The many critics of the Government’s move included its top lawyer and no fewer than five former prime ministers from across the political spectrum. It was Theresa May who delivered perhaps the most withering rebuke to the Government:

"The government is acting recklessly and irresponsibly with no thought to the long-term impact on the standing of the United Kingdom in the world. This will lead to untold damage to the United Kingdom’s reputation. It puts the future of the United Kingdom at risk. And, as a result, with regret, I have to tell the minister I cannot support this bill.”

The reaction of the EU was swift and firm. The EU has since its inception had the power to bring before the European Court of Justice any Member State which breaches its Treaty obligations. In recent years, that power has been reinforced by giving the Court a power to impose financial sanctions on delinquent Member States. While it was a Member State, the UK had a relatively good record in complying with its obligations. However, the EU rightly anticipated that its attitude might change post Brexit.

The Withdrawal Agreement therefore contains a number of provisions designed to encourage compliance with its terms. Article 5 of the Agreement, headed ‘Good Faith’, says that the EU and the UK must, ‘in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement.’ It goes on: ‘They shall take all appropriate measures…to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement…’

The good faith clause is reinforced by Articles 86 and 87 of the Agreement. Article 86 gives the Court of Justice jurisdiction ‘in any proceedings brought by or against the United Kingdom before the end of the transition period.’ The transition period ends on 31 December 2020. However, Article 87 goes on to say that the Commission can take the UK to the Court of Justice if it fails to fulfil a Treaty obligation or the rules relating to the transition period. Under this provision, the Commission can bring proceedings up to four years after the end of the transition period.

At a meeting in London on 10 September 2020, Commission Vice-President Maroš Šefčovič told Michael Gove, the Chancellor of the Duchy of Lancaster, that, if the Bill as it stood were to be enacted, it would represent an extremely serious violation of both the Withdrawal Agreement and international law. He called on the Government to withdraw the disputed clauses by the end of September. The following day, the remedies available to the EU were highlighted in Commission legal advice leaked to the Guardian newspaper. However, the Government was adamant that it would not withdraw the disputed clauses. It will not therefore have come as a surprise when on 1 October 2020 the Government received a letter from the Commission formally launching proceedings.

Interestingly though, neither side has yet terminated the negotiations. Indeed, Boris Johnson spoke to Ursula von der Leyen, the President of the European Commission, on 3 October as the mood music improved. The extent of the damage to the international reputation of the UK remains to be seen.

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