The Internal Markets Bill: How does it break international law and why is Johnson proposing it?
Updated: Sep 14, 2020
By Matthew Stevens, Editor
Boris Johnson has claimed in an article for The Telegraph that the EU is threatening to “blockade” Northern Ireland by preventing food exports from mainland Great Britain, therefore “actively” undermining the union of the United Kingdom. In response, Johnson has put forward the Internal Markets Bill, which the government has conceded breaks international law in a “very specific and limited way." Brussels has responded by threatening legal action against the UK, claiming the move had “seriously damaged trust between the EU and the UK".
The justification of this Bill is to ensure the unhindered flow of goods between the UK’s three nations and Northern Ireland, which is claimed upholds the values of the Good Friday Agreement, signed in 1998 to end the decades-long conflict on the island of Ireland. The basis for the EU’s “extreme” interpretation comes from the fact that “at-risk” goods are not defined, according to the Northern Ireland Protocol in the Withdrawal Agreement. However, Northern Ireland remains in the UK's customs territory, therefore goods should not experience tariffs between Northern Ireland and Great Britain unless they are “at-risk”. This ambiguity then gives the EU room to manoeuvre on the definition of risk, potentially splitting Northern Ireland away from the rest of the UK by selecting goods that could be deemed further down in the perception of risk.
The illegal components are made bare in clause 45(2) of the Internal Markets Bill, saying they will “not to be regarded […] unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law”, when referring to the right of the UK to provide state aid to businesses. The UK is therefore counterbalancing a potential ambiguity of the interpretation of risk with the threat of providing scope to UK businesses accessing state funding that would normally be deemed anti-competitive to the EU.
It is still yet to be seen if the UK is using this Bill to push forward agreements in a potential trading arrangement with the EU that have a similar effect to the Internal Markets Bill, or if they are planning a no-deal exit and are shoring up their own market. The EU is unlikely to agree to a trading relationship that gives the UK scope to subsidise industries any more than EU member states but may agree to a defined list of risky goods or conditions for goods subject to moderate taxation going into Northern Ireland. This then removes the ability of the EU to interpret risk themselves and may allow the revoking of the Internal Markets Bill.
However, it is important to note that this bill has not yet been passed by parliament, and would require three readings by the Houses of Parliament to do so, to which it may be amended and have the illegal components removed. Furthermore, the Bill would not come into force until the 1st of January 2021, when the UK leaves the EU single market. Before this point, the EU and the UK could agree to its legal legitimacy by adjusting the withdrawal agreement, or the UK could revoke it. Therefore, international law would not be broken if the bill passes parliament. Even after that date, the UK may not actually use any of the powers granted by it, and instead, conform to what is stipulated in the withdrawal agreement.