Some constituents have asked about the legal base for the legislation Parliament will consider next week. This is it:
HMG LEGAL POSITION: UKIM BILL AND NORTHERN IRELAND PROTOCOL
This is the Governmentâs legal position on the UK Internal Market Bill (âthe Billâ) which was introduced on 9 September. The purpose of the Bill is to promote the continued functioning of the internal market in the UK after the conclusion of the transition period provided for in the Withdrawal Agreement and the European Union (Withdrawal) Act 2018. The Bill also provides for how aspects of the Northern Ireland Protocol to the Withdrawal Agreement apply in the UKâs domestic law. In particular it ensures that the government will be able to deliver its commitments to protect peace in Northern Ireland and the Belfast/Good Friday Agreement, and to strengthen and maintain the UK internal market.
Clauses 42 and 43 of the Bill give HMG the power to make regulations to (i) disapply or modify the application of any exit procedures that would otherwise be applicable to goods moving from Northern Ireland to Great Britain, and (ii) make regulations setting out how the provisions of the Northern Ireland Protocol on State aid are to be given effect for the purposes of domestic law. The clauses provide that these powers may be exercised in a way that is incompatible with provisions of the Withdrawal Agreement. Clause 45 of the Bill expressly provides that these clauses, and any regulations made under them, have effect notwithstanding any international or domestic law with which they may be incompatible or inconsistent. This ânotwithstanding provisionâ partially disapplies Article 4 of the Withdrawal Agreement because it removes the possibility of challenge before domestic courts to enforce the rights and remedies provided for in the Withdrawal Agreement. The effect is to disapply the EU law concept of âdirect effectâ. This is the case regardless of whether any regulations made under clause 42 or 43 of the Bill are in fact incompatible with the Withdrawal Agreement.
It is an established principle of international law that a state is obliged to discharge its treaty obligations in good faith. This is, and will remain, the key principle in informing the UKâs approach to international relations. However, in the difficult and highly exceptional circumstances in which we find ourselves, it is important to remember the fundamental principle of Parliamentary sovereignty.
Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UKâs Treaty obligations. Parliament would not be acting unconstitutionally in enacting such legislation. This âdualistâ approach is shared by other, similar legal systems such as Canada, Australia and New Zealand. Under this approach, treaty obligations only become binding to the extent that they are enshrined in domestic legislation. Whether to enact or repeal legislation, and the content of that legislation, is for Parliament and Parliament alone. This principle was recently approved unanimously by the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
The legislation which implements the Withdrawal Agreement including the Northern Ireland Protocol is expressly subject to the principle of parliamentary sovereignty. Parliamentâs ability to pass provisions that would take precedence over the Withdrawal Agreement was expressly confirmed in section 38 of the European Union (Withdrawal Agreement) Act 2020, with specific reference to the EU law concept of âdirect effectâ.
September 15, 2020
Was this available yesterday Sir John?
If so then Red Ed was just grandstanding and he should be castigated for it.
September 15, 2020
No, he was spot on.
Even if it were, then as he said, Johnson absolutely Does Not Know His Stuff, does he?
And he is vindicated, by the comments from the nations of the civilised world.
September 15, 2020
nations of the civilised world – -which would they be?
September 15, 2020
âJohnson does not know his stuffâ from a man who did not know that one Parliament cannot bind another! đđ pre-school stuff and had to be instructed on the floor of the House (itâs in Hansard).
September 15, 2020
MiC
“Even if it were, then as he said, Johnson absolutely Does Not Know His Stuff, does he?”
Well you evidently don’t know your stuff, if you did you’d know that internal law (and sovereignty) trumps international law.
September 15, 2020
I believe that it was published on Friday Afternoon.
September 15, 2020
Milliband was parroting the same nonsense about how we ‘must’ have a deal (no matter what the nature or content of that deal). They never tell us what they propose to do if the EU say they don’t want a deal at all.
September 15, 2020
“Milliband was parroting the same nonsense…”
Yes I tried to find that on the telly, but for some reason I could only get Wallace & Grommet.
September 15, 2020
Perhaps he read the bill in full rather than the digest – https://publications.parliament.uk/pa/bills/cbill/58-01/0177/20177.pdf
September 15, 2020
He knew he was just grandstanding.
September 15, 2020
Agree – grandstanding at our expense
September 15, 2020
What a disgrace…
September 15, 2020
If the EU refuse to agree a straightforward FTA with us like they offer the rest of the world, should they then be able to blockade food exports to NI from mainland Britain? Yes or No.
September 15, 2020
Think: how do you think the EU can blockade food exports to NI ?
With Michel Barnier in a rubber dinghy in the Irish sea ?
Be serious and be wary of so called news that can only be found in the British tabloid press and nowhere else.
Remember the “Michel Barnier is about to get dumped by the member states” ? Did it happen. No.
September 16, 2020
Tabulazero, What? – you don’t think the EU can be so vindictive as to prohibit the transport of some foods from Great Britain to Northern Ireland? Well, no wonder you voted Remain. Certainly, this time, the government has taken the EU’s threats seriously, so they obviously accept the possibility of a blockade even if you don’t.
September 16, 2020
NickC
3 questions if I may:
1. This information comes from Boris Johnson who, as we all know, has a complicated relationship with the truth. Could we draw any conclusion from that?
2. How exactly would the EU go on with the implementation of its alleged threat to stop food shipment from GB to NI?
3. Does the EU strike you as the kind of organisation that makes threat it and pretty much anybody else know it cannot make good on?
Your answers interest me.
September 16, 2020
1 wrong it came from Barnier
2 who knows they are getting close to having their own army.
3 yes
September 15, 2020
beresford
There’s no need for a blockade of NI, if we just give in to French demands for our fish.
Heck, if we surrender our maritime sovereignty to France we might even get an FTA.
September 16, 2020
Brilliant – then the French can put warships in the Irish Sea to stop exports to NI.
September 15, 2020
Indeed the EU’s threats against the integrity of the single market of a peaceable neighbour is a disgrace . . .
September 15, 2020
Sure because the British proposal of “we want to have free access to your markets while we can subsidize our domestic companies to our heart’s content and destroy yours in the process” is not ?
September 16, 2020
The EU member nations can subsidise their own companies too if it wants to.
It has done regularly over the years.
September 16, 2020
State aid is allowed but within the rules set up by the EU to ensure a level playing field.
It could happen that the EU does not want to change the rules it operates under simply to make good on the promises made to the British public by the Brexiters.
September 16, 2020
“to ensure a level playing field”
Or one big monolithic bloc ruled by a protectionist central command.
No competition equals no progress
September 17, 2020
Because the state picking winners is competition for you?
September 18, 2020
If their decisions are failures then the government will get unpopular and we can vote them out.
Not like the EU.
September 16, 2020
Tabulazero, Not “to our heart’s content” – subsidies can only be within WTO rules, the same that the EU can apply. A trade deal is about mutual market access – no more, and no less. And it’s China that the EU should be frightened of, not the UK, anyway. Moreover, Germany will still be subsidising its exports via mercantilism. Apart from all that, you’re 100% right.
September 16, 2020
Do you know that WTO arbitration can take between 10 – 15 years ?
By the time the case gets resolved, companies have the time to go bust many times.
WTO arbitration ? No thank you very much and this actually assumes that there will still be a WTO given what Donald Trump is doing to it.
September 17, 2020
Sanctions can be imposed by the country feeling aggrieved.
Currencies alter greater than the average tariff inside a year.
Have you noticed the huge expansion of international trade over the last few decades?
It’s obvious you have never done any importing nor exporting.
September 15, 2020
Good for the Government. The people expect it to “get Brexit done” and the sovereign parliament must do what is necessary.
September 15, 2020
Oh, so it’s the “sovereign Parliament” and not “saboteurs and traitors” now, is it?
What a giraffe!
September 15, 2020
Yes, it is a sovereign parliament. Gin Miller saw to that when she went to the Supreme Court. THanks Gina.
September 15, 2020
FuS
Yes, an own goal. Much to the irritation of MiC. đ
September 16, 2020
Mic isn’t so very keen on Parliamentary sovereignty these days.
September 15, 2020
there have been, and still are numerous saboteurs and traitors.
September 15, 2020
I was under the impression that a significant number of the “saboteurs and Traitors” lost their seats at the last General Election.
September 16, 2020
a large section of the electorate who are sheep convince themselves they are wolves!
September 15, 2020
All Parliaments are Sovereign or they are not a Parliament, but an assembly.
There is not 1 Parliament in the entire EU!
And some argue that itâs âdemocraticâ!
September 15, 2020
MiC
“Oh, so itâs the âsovereign Parliamentâ and not âsaboteurs and traitorsâ now, is it?”
Dont rush to conclusions, the bill has only passed the first stage and remainers could still cause trouble. You will have to wait and see.
September 15, 2020
+ many thousands
September 15, 2020
The people expected WTO
September 16, 2020
+1 4 years ago!
September 15, 2020
If it is that clear why are there people not agreeing?
September 15, 2020
Because many are closit remainers. If Bliar and Major are against it then it’s probably the correct course of action.
September 15, 2020
+1
September 15, 2020
Nig1, Because they are Remains, and therefore determined to make as much trouble as they can in the hope of halting Leave. What have they got to lose? They lost their honesty and integrity years ago in their quest for EU dominance.
September 15, 2020
Be Ayse a Government minister stood up in parliament and said they were breaking international law. Why ? That statement was approved by someone at No 10. Who ?
September 15, 2020
So an explicit admission the UK plans to breach an international Treaty it signed up to just a few months ago. Shameful. The Kremlin will be overjoyed the UK is doing its work for it by indermining the rule of law
September 15, 2020
It was not a treaty. Repeat NOT a treaty, just an agreement which, as our host has explained, cannot overrule the will of Parliament. Fact.
September 16, 2020
No not just an agreement a very important agreement passed in the HoC and in the EU Parliament. Between Uk and the Eu- the Eu representing 27 countries- I would say that it is a very important international treaty by any name
September 16, 2020
Transitory agreement which has been breached by the EU. It HAD to lead to a FTA.
September 15, 2020
There was a lawyer on the radio explaining that if the bill is required to protect us then it is not illegal. Itâs a safeguard,
September 15, 2020
What is the name of the Treaty the EU and UK signed?
It should have a name like The xxxxxxx Treaty
September 16, 2020
Here it is, my friend.
Itâs name is the Withdrawal Agreement.
(Some Treaties are called Treaties, some Conventiobs, some Agreements – doesnâ matter, they are all Treaties)
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840655/Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Community.pdf
September 16, 2020
So it isnt called a Treaty
Thanks.
They are all treaties…err you made that bit up.
September 16, 2020
Treaty law is very low level law and trumped by many other levels of law.
September 15, 2020
Apart from the fact that the EU breaks International law at will and is currently being fined for doing so, their threats to prevent the British food market reaching Northern Island breaks just about every rule in the book.
But you can only bang on about Boris breaking a law. You must be happy to see the EU yet again threaten to hold Great Britain hostage.
September 15, 2020
Time for another load of MPs to lose the whip and be de-selected.
September 15, 2020
yep……but they will ‘cross the road to the Lords’.
September 15, 2020
+1 – and NOT sent to the House of Lords, which is the PM thumbing his nose at the electorate.
September 15, 2020
A bunch of MPs lost the whip last year by refusing to agree to Borisâs deal.
Another bunch are about to lose the whip by refusing to break Borisâs deal.
Ever had the feeling Cummings is laughing at you behind your back?
September 16, 2020
If you vote against a three line whip and against your own government then you always expect a reaction from your party and constituency party.
September 16, 2020
If you vote against Manifesto Commitments you must expect excommunication. And that goes for Govt too. See Mrs 9% May.
September 18, 2020
Borisâs deal was a case of âany deal to get this bloody thing overâ after the appalling delay and obfuscation since the referendum. Now the details are being ironed out. Seems fair enough to me. Bit like agreeing to build HS2 and then dotting the âiâs etc. afterwards. Itâs the EUâs fault. They would not negotiate the future arrangements until they forced us to accept their Withdrawal Agreement IN CONTRAVENTION OF THE LISBON TREATY.
September 16, 2020
We donât have Commissioners anymore.
September 15, 2020
Could also be called the Governments illegal statement by the way so many others see it.
September 15, 2020
Or the âothersâ could be called traitors by the way we see it?
September 16, 2020
One man’s traitor is another man’s patriot
September 16, 2020
Patriotic to the EU? Is that a âthingâ?
September 15, 2020
Thank you Sir John
As always I agree.
It is embarrassing for the ego trip MP’s that have forgotten why they were elected. Then embarrassing that they have chosen to forget they were only the custodians of the sovereignty lent to them by their Constituents. They have no other real purpose while in Parliament than ensure our constitution and sovereignty is respected.
To think they can barter off something that isn’t theirs, is first order hypocrisy. A total lack of duty to the people of this country, you could even reason they holding onto their positions fraudulently.
September 15, 2020
A fair assessment
September 15, 2020
The doom and gloom merchants are making much more of this than they should be.
It is clear that there is some doubt on both sides but what seems certain is that there may be parts of the new legislation that would break the treaty between the EU and the UK BUT, ONLY if there is no formal agreement on 31st December AND the EU fails to recognised the UK as a third party country AND we choose to implement it.
In any event, the principle of Nothing Is Agreed Until Everything Is Agreed must continue to apply to the Withdrawal Agreement as it is only a part of the Brexit process.
What is all the fuss about ? More Project Fear ?
September 15, 2020
ChrisS
“What is all the fuss about ? More Project Fear ?”
Yes, and also the fact that Boris’s Gov’t has sussed out the French – Led EU plot to make NI isolated from the UK and dependent on RoI for food, if we don’t let the French plunder our fishing grounds….the cause of the current stalemate.
In other words; ‘give us the fish or you loose NI’.
September 15, 2020
Boris is concerned that the EU might not negotiate in good faith sometime ‘in the future’ so he considers he needs to bring in this bill as a backstop- this supposes that they the EU have already being acting in good faith up until now. And given that we have already left the EU on the WA January 31st and are in a transitional phase to another agreement surely then if transition talks fail and break down through no fault of anyone except by disagreement- then nobody is at fault- nobody is acting in bad faith if the talks just stop- it’s just the way it is- ie. we have left the EU- full stop- which is all as we ever voted for as per the WA- UK has taken back control- we then go to trading by WTO Rules- am afraid I don’t know what the Boris Dominic problem is
September 15, 2020
An agreement, preferably an FTA, would have replaced the NI Protocol. No agreement means that the NI Protocol is enforced.
September 16, 2020
Yes that is true and that is what was agreed between the parties in the WA – the agenda for the future transitional talks were also clear but aspirational and a FTA would depend on the success of a new agreement. Everyone knows that including Boris so I don’t knod what all the huh hah is?
September 15, 2020
Let see if they have the bottle to walk on the 15th October
September 16, 2020
don’t hold your breath.
September 15, 2020
The government clearly did not appreciate the full impact of the withdrawal agreement t the time that it was agreed.
So perhaps it is reassuring that they attached an explanatory note to the “Rule of Six” (over 9 pages of garbage and legalese) that this time they did not even pretend to have conducted an impact assessment.
Presumably they can’t begin to guess how this new regulation will impact your life, the extent to which it will protect (or destroy) your health or the number of people who will be criminalized as a result.
September 15, 2020
I notice that most of MPs and Lords who are going on about breaking international laws have broken international themselves over the years by voting through bills in parliament, not leased the middle east wars where a person ended up dying before being able to put the finding of his trip to the middle east before parliament to make sure there would be no war.
I have often wonder to myself why people would vote for people who have blatantly broken the law in this manner in parliament, one can only conclude that voters are of the same mentality and therefore not worth saving.
September 15, 2020
Thank you for this.
If the government had released this legal statement at the same time as everyone became aware of this new Bill nearly a week ago, then perhaps the Government would have saved itself a lot of embarrassment, media flack, and may indeed have helped the bill pass through Parliament with far fewer opposition opportunities.
The Conservative Party really do need to up their game with PR JR, it has been a shambles now for far too long.
September 15, 2020
Alan
Agreed, except that all TV media and most of the press in this country is actively engaged in left wing remain propaganda and slagging the Tories. They don’t report anything that might suggest this government is doing a pretty good job under the circumstances. Their game is purely Tory bashing.
Might I suggest – ‘Jeff Taylor’, ‘Mahyar Tousi’, ‘We Got A Problem’…..all available on youtube.
There is also a good read on Conservative Woman website.
And last but certainly not least this website.
September 15, 2020
đđ» Alan is right, PR is letting your party down.
September 15, 2020
Yes, AJ. Breweries and organisational skills come into mind.
September 15, 2020
Alan
â If the government had released this legal statement at the same time as everyone became aware of this new Bill nearly a week ago, then perhaps the Government would have saved itself a lot of embarrassment, media flack, and may indeed have helped the bill pass through Parliament with far fewer opposition opportunities.â
Itâs funny you should say that because in the Telegraph today there was an article. It explained that the ERG were considering a press conference because there are more bills needed to further safeguard us from other areas of the withdrawal agreement. One of the top comments was just that….make sure the public are aware of those further safeguards and get them out there telling the public several times over to ensure itâs heard.
The ERG worry being the remainders will say Boris happily signed it as it was…that too needs an explanation. He practically had a gun to his back âsign or lose Brexit.â
September 16, 2020
Oh yes, letâs have Khan with the balance of power, that would improve things. We would all be in masks for ever!
September 15, 2020
Self explanatory and Boris is quite within his rights to act for the good of the UK. I just hope those Tory rebel MP’S that vote this down are sacked. We have had enough and want Brexit done. A real and meaningful Brexit.
September 15, 2020
UK daily summary Tuesday 15th September
(source: https://coronavirus.data.gov.uk)
Tested â 227,075
Negative â 223,970
Positive â 3,105 (1.3%)
Patients admitted to hospital â 141
Deaths â 27 (0.00003%)
September 16, 2020
What is the false positive rate for the tests? It might well be much of that 1.3%, furthermore the tests do it seems pick up people who have recovered are not really infectious but just have a tiny residual infection residue.
Serious cases and deaths are all we should really be concerned about now. These are not significatant at all now. Less than 1% of daily deaths.
September 16, 2020
When I point this webpage out to my friends they can’t believe the figures are so low – its not whats in the media
September 15, 2020
FuS
It shows that the Anti – British & corrupt element of Parliament is still there. Electors need to make sure these weasels are voted out of office.
I certainly wouldn’t be voting for an MP who submits to foreign threats.
September 15, 2020
The media is stating that the EU is drawing up plans to end food blockade threat – Now, the Commission has told No 10 it must publish draft legislation containing guarantees to uphold high standards for animal health, welfare, plant health and plant protection before they complete the process.
They(the EU) still dont get it the integrity and sovereignty of the UK is part of our constitution, it is not up to others(foreign powers) to grant us permissions on anything that goes on within the UK. Then when you add in these conditions that is insulting and demeaning. Next they will want the ECJ to be the arbiter.
The whole charade is to enforce rule by the EU on the UK. Where is the ‘Clean Break’ we voted for?
September 15, 2020
One world government, the key goal of the globalists, is being pushed forward relentlessly. Noteworthy: Boris is apparently a signed up member of the globalists. It does help to explain his actions. Question: what hold do they have over him, and why?
September 16, 2020
The US will not allow one world govt. unless it is the World Government.
Might happen…..
September 16, 2020
He is of many nations and therefore of none.
September 15, 2020
Surely this is an insurance policy by HMG that provides an interpretation that would be put into effect should the EU try to impose an adverse interpretation of the WA.
It was not very clever of Brandon Lewis to state it breaks International Law, when it is a response the EU’s badly motivated threats to use the WA to cut off NI from the UK, by its own extreme interpretation of the WA. And follows the EU’s unreasonable demands in trade negotiations.
It is appalling that certain Remain MPs can be so high-minded in defence of EU’s position on the WA, yet showed no high-mindedness in respect of the will of the British people this last four years.
No WA and no trade deal are the cleanest solutions.
A period on WTO terms may do the EU attitude some good, but don’t wager on it.
September 15, 2020
But the PM has made the case that its needed to stop the EU interferring with foodstuff going from GB to NI. There is only one clause in the Bill that can possibly be applicable , and that is Clause 2.
September 16, 2020
It says something of the nature of this government that the NI Minister declares something to be illegal and the Attorney General declares it to be legal.
September 16, 2020
Best to take the legally qualified person’s advice.
September 16, 2020
Lawyers advice is always 50 per cent wrong where court cases are concerned. Having said that, Brandon Lewis is not the sharpest knife in the box and will never be a threat to the PM which is how they are appointed and why we get so many duffers.
September 16, 2020
I agree Graham.
September 16, 2020
True.
September 16, 2020
I fear you may be correct.
+1
September 16, 2020
How could any rational person or MP argue with that?
…unless of course they do not have the best interests of the people of the UK in mind.
September 16, 2020
Sir John, I feel you miss the point. It is all very well to smugly say that domestic law is paramount and can be used to overturn international treaty obligations, but does that mean that overturning international treaty obligations (particularly those in recently signed treaties) is a morally correct practice? If the argument is that if an international treaty goes against the best interests of the country, perhaps you should call out whichever incompetent fool signed it? And by logical extension, how would you feel about Spain passing a law to overturn the Treaty of Utrecht and re-occupying Gibraltar? It would tick all the same boxes: the Spanish parliament is sovereign, domestic law is paramount and the treaty goes against the best interests of Spain. Spain’s justification is far stronger as the treaty was signed over 300 years ago not 9 months ago by their incumbent PM
September 16, 2020
“International law” is largely a set of customs and norms which are as fluid as any other body of law. The law on treaties is largely governed by the Vienna Convention on the Law of Treaties (VCLT) and the International Law Commission (ILC) which produces interpretations on the state of such customs over time.
A key aspect of treaties is that the ILC classify them by *type* and the customs and norms that apply to each type are different. A commerce/trade treaty is handled very differently to a treaty covering things such as borders, rights etc.
The VCLT defines a number of situations where treaties can be terminated or “denounced” and the ILC members have produced a number of papers over the years defining the customs and approach to various types of treaty.
Various articles of the VCLT such as article 56 do allow for unilateral exit from types of treaty, including commercial ones such as the WA. Essentially when a country feels that therms of a trade agreement no longer work in its interests, they can withdraw fro the arrangement and they do so all the time. Partial withdrawal is no different – if the other parties don’t like it, they also have the power to cancel the arrangement.
Internet searches on the subject will come across items such as this: https://core.ac.uk/download/pdf/62563955.pdf which is first proof but pulls it together quite well, albeit a (very) long read. As an academic paper, however, its advantages include the fact that everything is properly referenced.
So when people, including senior law officers such as Keen, are saying that this “does break international law”, I have to wonder what game they are playing. It is quite clearly incorrect for a number of reasons including the above and the inclusion of Clause 38 in the WA Act 2020.
September 16, 2020
The disturbing news this morning was that Boris was having discussions with the Tory rebels.
Should this result in appeasement of any kind his conversation with the electorate may not be so amicable.
September 25, 2020
Most of the comments here seem to miss the point: the government’s legal opinion posted here states that the passing of this law does break the Withdrawal Agreement, even if the powers are never used. It then continues:
“It is an established principle of international law that a state is obliged to discharge its treaty obligations in good faith.”
If this law is passed, the UK will be manifestly failing to do so, and hence will be in breach of international law. Further, I have seen no argument as to why the UK needs to act in breach of good faith at this time, nor why the government seems not to care about reneging on its manifesto commitment to the Withdrawal Agreement.