The UK Internal Market Bill: Supranational v. International law

On 6 September, the FT and The Guardian   reported that the UK government planned to draw up new legislation regarding the UK’s internal market. The FT headline asserted that the government’s bill was intended to “bypass the withdrawal agreement’s Northern Ireland Protocol ». The Guardian stated that “Boris Johnson (plans) to override EU withdrawal agreement ».  The new law would give ministers the power to define what state aid needs to be reported to the EU, and define what products that were “at risk » of being brought into Ireland from Northern Ireland.

The Withdrawal agreement from December 2019 states that in the absence of a mutual agreement, all products should be considered « at risk ». The decision about how to interpret “at risk” lay entirely, the WA made clear,  with the Commission, and eventually with the ECJ. These are the authorities with the supranational powers to adjudicate on such matters, even to a non-member, the EU holds.

The Johnson government defended the move, saying the legislation was compliant with the protocol and merely “clarified” ambiguity in the protocol. A No 10 spokesman said the measures were “limited and reasonable” and insisted the UK would remain compliant with the Northern Ireland protocol. As one UK official was quoted as saying, there would be “some debate in the EU legal profession who will want clarity on how it will work vis a vis direct effect”-the EU doctrine elaborated by the ECJ in a series of cases in 1963 and 1964.

Righteous indignation as a negotiating tactic

Commission President Ursula von der Leyen notched up the rhetoric, saying that  Prime Minister Johnson should not not break international law : the UK’s implementation of the withdrawal agreement was a “prerequisite for any future partnership”. She tweeted: “ “Protocol on Ireland/Northern Ireland is essential to protect peace and stability on the island & integrity of the single market.”

Things got worse for Johnson when Sir Jonathan Jones, head of the government’s legal department, decided to resign, reportedly over  his disquiet about the government’s plans for the internal market bill to challenge the EU’s claim to apply the “direct effect” doctrine in Northern Ireland via the Protocol.

Both van der Leyen’s and Jones’s remarks reminded Johnson’s opponents of events in autumn 2019, when Johnson was accused of seeking to circumvent parliament by proroguing it, and thereby forcing the UK to exit from the EU without a deal. The government denied it, but the Supreme Court- about which more below- found that Johnson “lied” in his advice to the Queen to prorogue parliament. This was true grit to Johnson’s many UK enemies, and to those in the EU who hoped to reverse the result of the June 23, 2016 referendum result to leave the organization. But Jones did not step down then, because it was reported that he had decided against it after concluding that the Government did not in fact intend to break the law.

To cap it all, Brandon Lewis-promoted by Prime Minister May to head the Conservative Party, a Remainer, and then appointed by Prime Minister Johnson as Minister for Northern Ireland- told the Commons that the Internal Market  Bill to be published on Wednesday would break international law “in a very specific and limited way” by circumventing elements of the Northern Ireland protocol.

There is nothing that politicians and media types like more than to swim in an ocean of righteous indignation, as if by dint of springing into its warm and welcoming waters, they had suddenly been deprived of their virtuous virginity. First into the breach was Theresa May, Lewis’ former boss: “ How can the government reassure future international partners that the UK can be trusted to abide by legal obligations of the agreements it signs?”, she asked.

Commission President Ursula von der Leyen notched up the rhetoric, saying that  Prime Minister Johnson should not not break international law : the UK’s implementation of the withdrawal agreement was a “prerequisite for any future partnership”. She tweeted: “ “Protocol on Ireland/Northern Ireland is essential ».Nicola Sturgeon, Scotland’s nationalist First Minister, said her administration would resist the UK government’s intent to set rules for the UK internal market.

Not only women entered the lists against the beleaguered Prime Minister. The former Tory party leader, Lord Howard- a committed Brexiteer-  said: “Does [the minister] not understand the damage done to our reputation for probity and respect for the rule of law by those five words uttered by his ministerial colleague in another place on Tuesday – words that I never thought I would hear uttered by a British minister, far less a Conservative minister. »”How can we reproach Russia or China or Iran when their conduct falls below internationally accepted standards when we are showing such scant regard for our treaty obligations?”

Lord Falconer, Tony Blair’s chum,  dotted his i’s and crossed his t’s: the government actions would damage the UK’s global standing. “Brandon Lewis’ acceptance that this Government is deliberately breaking international law will be thrown in the UK’s face for years,” he said. “Expect dictators to justify murderous breaches of international law by relying on the Lewis mantra.”

No-one could accuse his Lordship of under-estimating the UK’s importance in world affairs.

Downing Street defended the Government against criticism over the threat to break international law.”We’ve set out the clear reasons why we have to take these steps »,  the Prime Minister’s official spokesman said. “We can’t allow the peace process or the UK’s internal market to be inadvertently compromised by the unintended consequences of the protocol.”

In other words, the UK government was saying that in the event of a failure to reach agreement, or even in the event that agreement on a deal was reached, the UK government could not leave the Commission the entire discretion-as implied in the Withdrawal Agreement- to decide about how the UK ordered its internal market.

This is what the Commission President van der Leyen, former Prime Minister May, , First Minister Sturgeon and, it would seem, Minister Lewis, were referring to: the WA asserted EU legal supremacy, its supranationalism. The government is simply pointing out that as an independent sovereign, it determines its own laws.

As a sovereign state, which the UK would become at the end of the transition period in January 2021, the Crown in Parliament would decide about its own affairs with regard to its internal market-the market between the four nations composing the United Kingdom-but – because it had signed the WA – it would do so on a footing of equality with the Commission.

Behind all the overblown rhetoric, what is at stake, is simple: the negotiations, which opened in February of 2020, are reaching a climax; two interpretations of international law are at war.

The UK position

The government released its negotiation objectives in February. These were important because in the previous parliament, dominated by Remainers, the government had made commitments in the binding Withdrawal Agreement, and was looking to interpret the non-binding political declaration. The bottom line for both parties is that anything that is negotiated must be consistent with the EU’s four freedoms – the free movement of goods, services, capital and people ; and nothing will be agreed that threatens the sovereignty of the United Kingdom.

This was the starting point for the Johnson government’s negotiating objectives. The UK aims, it stated,  for a relationship based on “friendly cooperation between sovereign equals” with both sides respecting each other’s “legal autonomy”. The UK – the government made clear-  “will not negotiate any arrangement in which the UK does not have control of its own laws”, and would not be under any “obligations” to be aligned with EU laws, or the “EU institutions, including the court of justice”.

In so saying, the government was giving expression to the result of the large majority it won in the December 2019 elections on the back of a promise “to get Brexit done”. But it did depart from the spirit of the non-binding political declaration, which the EU had hoped would ensure that the UK as a non-member state had exactly EU rules and regulations. Eyebrows were raised in Brussels, indicating that the EU would have to do battle- in the jargon, wage “lawfare” on the UK.

The government’s negotiating objectives then stated the desire to reach a “comprehensive free trade agreement”, in the manner of the accords reached between the EU and Canada, supplemented by  a range of other agreements including “fisheries law enforcement … judicial cooperation in criminal matters, transport and energy”. In other words, Prime Minister Johnson was not seeking, as had his predecessor, an ambitious and comprehensive associate arrangement, which trapped the UK in the coils of the ECJ.

The government went on to restate its position from January that it would not seek to extend the deadline beyond 31 December. It would take stock in June- a deadline which in the event has been prolonged until mid-October – and confirmed that it looked forward to reaching a “broad outline of an agreement” that could be “finalised by September”.

September has been reached; Johnson has repeated that he considers a Canada-style deal attainable, but that in order to do so, the EU must take their threats off the table. The threats are that the EU would interpret the Northern Irish Protocol in such a way as to impose trade barriers between different parts of the United Kingdom-between Northern Ireland and the UK mainland.

It is worth pointing out that the EU option to use the Withdrawal Agreement and the Protocol as a weapon to impose barriers between different parts of the United Kingdom would run counter to the 1707 Act of Union with Scotland- it would be unconstitutional, as would SNP rejection of Westminster’s right to impose its rule over the UK internal market. It would also infringe the 1801 Act of Union with Ireland. Both of these are Acts of Parliament and therefore central components of international law.

The UK further  would not seek “ to participate in the European arrest warrant”, which allowed the UK and other countries to pursue criminals who had crossed member state borders to flee justice. Instead the UK wants “fast-track extradition arrangements”.For details on the arrest warrant: https://commonslibrary.parliament.uk/brexit-next-steps-the-european-arrest-warrant/

The Northern Irish Protocol, fisheries and state subsidies to businesses are the three subjects which feature most prominently in the negotiations. The chancellor of the Duchy of Lancaster, Michael Gove, has told parliament that negotiations would be conducted “in full respect of the Northern Ireland protocol”. On fisheries, the EU wants continued access to EU waters on existing terms, while the UK position is that Great Britain will become an independent coastal state, and will block foreign fishing boats from entering UK waters unless licensed to do so.

On subsidies, “the UK will have its own regime of subsidy control,” it says. It wants a new system whereby each side will commit to being transparent about state subsidies, notifying each other every two years of any subsidies. The irony here is that the UK, which by the Commission’s own data, is the member state which gives the least in hand-outs to business is being lectured by a Frenchman, M. Barnier, whose country is, along with Germany, a major provider of subsidies to all types of business: the Caisse des Depots et Consignations, with 30% of total deposits in France, is a French public sector financial institution, and often described as “the investment arm of the French state”.

On worker rights and environmental legislation, the Johnson government committed to “reciprocal commitments » not to weaken laws or standards. standards”. On mutual access to markets, the UK stated that it was seeking  tariff-free access to the EU market. It did not want checks on foods and animals in cross border trade; but the EU insisted that such checks would be mandatory in the event that UK regulations diverged from EU standards and regulation on animal and plant products .

On financial services, the UK paper demands  “legal certainty to suppliers and businesses”, which suggests a permanent access or “equivalence” arrangement. The paper argues that “the fact that the UK leaves the EU with the same rules provides a strong basis for concluding comprehensive equivalence assessments before the end of June 2020”.

The negotiations

UK in a Changing Europe, a think-tank sympathetic to the Remainer cause, records that the topics covered are those set out in the Political Declaration. However, the UK made it clear that it did not wish to discuss foreign policy, security and defence, from which it can be inferred that these area areas that the UK would prefer to manage outside any permanent institutional framework. The UK leans to NATO solutions to European security; the French, as ever, to French based formulas. The two sides agree with the agenda for negotiations on a round-by-round basis.

The topics covered are those set out in the Political Declaration.

The first round, completed in March, included eleven negotiating ‘tables’: trade in goods; trade in services and investment and other issues; level playing field for open and fair competition; transport; energy and civil nuclear cooperation; fisheries; mobility and social security coordination; law enforcement and judicial cooperation in criminal matters; thematic cooperation; participation in union programmes; and horizontal arrangements and governance.

The sixth round, which took place 21-23 July, discussed the level playing field for open and fair competition; horizontal arrangements and governance; fisheries; trade in goods; trade in services and investment and other issues; law enforcement and judicial cooperation; energy; thematic cooperation; mobility and social security coordination; transport; and UK participation in EU programmes.

The seventh and eighth rounds in August and early September remained deadlocked on fishing rights ; the EU’s level playing field demands and the ECJ. M. Barnier, the EU negotiator, complained that it felt like “the talks were going backwards more than forwards”. David Frost, Johnson’s chief negotiator, confirmed that he believed  “there has been little progress”. “The EU, he said,  is still insisting not only that we must accept continuity with EU state aid and fisheries policy, but also that this must be agreed before any further substantive work can be done in any other area of the negotiation…”

French Minister of Europe and Foreign Affairs, Jean-Yves Le Drian,  addressing French ambassadors based in Europe alongside his German counterpart Heiko Maas, said: “Negotiations are not advancing due to the intransigent and frankly unrealistic attitude of the United Kingdom.” David Frost responded in kind: the EU needed to show “more realism” about the UK’s status as an independent country.

This was the context in which on September 6, the FT and The Guardian reported that the UK was seeking to unilaterally ride roughshod over the Withdrawal Agreement and Protocol; May asked her question in the Commons, and Brandan Lewis -whom she promoted in the Tory hierarchy – made his statement that the UK would indeed break international law “in a very specific and limited way”.

Is this true? The EU definitely thinks so. According to cables sent to EU capitals from Brussels : Johnson is suspected of holding back on finding a compromise on the key outstanding issues of fisheries, state aid and dispute resolution until the last moment in order to achieve a last-minute “trade off”. These are too complex, EU officials maintain, to decide at the last moment. On fisheries, the UK is accused of recently “introducing” a new “concept” under which “80% of the common stocks” have been designated as “priority stocks” on which British fishermen have the biggest claim. The Commission fears Downing Street is hiding behind a barrage of anti-EU articles in the British press, citing reports accusing Brussels of intransigence directly ahead of the last round of talks. In other words, trust between the two sides is draining away.

The FT, The Guardian, The Times’ Matthew Parris, Lord Hague and a legion of Johnson’s foes suggest the government is throwing the UK’s  reputation as a respecter of international treaties under the bus. Nonsense, tweets Sir Christopher Meyer, John Major’s press secretary and Tony Blair’s Ambassador in Washington: “international law is here a red herring. The problem here is political not legal: the failure of the EU to negotiate in good faith the future relationship, with the result that, absent an agreement, NI becomes by default a gateway for EU law into GB, unless Parliament takes pre-emptive action”.

Johnson wrote in the Daily Telegraph on September 12, (Let’s make the EU take their threats off the table and pass this bill”) to this effect: “ In forging our new relationships, we can’t have our lives or our economy regulated by the European Court; we must have the right to devise our own laws and regulations. And we must have sole control of our spectacular marine wealth-our fisheries”.

The UK has a long history of championing supra-nationalism.

The roots of the UK’s supra-nationalism have been amply covered in this blog. https://storybookreview.wordpress.com/2020/01/10/brexit-and-the-british-constitution-part-iv-the-roots-of-british-supranationalism/ British ideas were in the forefront of debates to establish a viable peace system for Europe, that would ensure prosperity and avoid recourse to war as a tool of policy. These ideas were of liberal provenance and came to hold that  the best regime for Europe is one in which the existing nation states dissolve into a federal and  collective sovereign in Europe. United, Europe would have the  size and clout to defend and promote European interests on the world stage. Anything less  would condemn Europe to recurrent warfare, as a sideshow in a world, where the shots are called by the mastodonts of the twenty-first century. This idea, often identified as French in origin, is in effect rooted most explicitly in the British liberal tradition. But the tradition holds two  incompatible strands. One sees the end point as the European Constitution of 2004, drawn up under the tutelage of former President Giscard d’Estaing. The other, preceding it by three centuries, is the constitutional monarchy rooted in the Glorious Revolution of 1689. It should not have come as a surprise that this novel  EU Constitution should have foundered in the United Kingdom in the referendum of June 23, 2016 on the loyalties accumulated over centuries to the older, inherited and highly successful British Union of nations.

The UK exited from the two world wars with one invaluable attribute: its political system was drenched in legitimacy. There were two major sources of this legitimacy: one was Benjamin Disraeli’s decision in 1867 to open the inherited UK constitution to participation by a mass electorate, to modern political parties and to Cabinet government. The second was the extension of universal suffrage to all men and women after the First World War. In addition, the governing thrust of imperial policy after 1918 was the extension over time of the right of self-determination to all colonies and dominions. The independence of India and Pakistan came twenty short years after the end of the First War-a touch longer, with a major war in between, than the time it took the EU to absorb German unification, and to implement the Maastricht and Lisbon Treaties, establishing the European Union as it is.

There was, however, a minority position which developed in the inter-war years in the UK, and that inherited the old Liberal Party’s deep skepticism towards a mass electorate. Fear of  government by an ignorant mass electorate surfaced anew in the 1930s  under the guise of a conviction that nationalism caused war. The fundamental reason for this was the catastrophe of the Great War.

The origins of this supranational ideal lies in Franco-British co-operation over the conduct of the First World war. They may be traced to the Allied Maritime Transport Council set up  under the Lloyd George government, and designed as a para-public “administration”, running a cartel to minimize competition in logistics between the allies. It was chaired by a British civil servant, James Arthur Salter, who worked alongside Jean Monnet, later the EU’s founding father. Salter was the ideas man of supra-nationalism; Monnet was the indefatigable networker, who laboured to implement it. At first an enthusiast for the League of Nations, to which he was appointed by Clemenceau, as Deputy Secretary-General, Monnet soon became disillusioned by its laborious and unanimous decision-making processes,  and resigned in 1923. Disillusion hardened into conviction as the League proved unable to maintain the peace. He expressed his views clearly in a memorandum of 1943:  ‘there will be no peace in Europe if the states are reconstructed on the basis of national sovereignty…Prosperity and vital social progress will remain elusive until the nations of Europe form a federation of a ‘European entity which will forge them into a single economic unit” .

Monnet’s statement makes clear his project is a  European peace programme. His remedy is the subordination of European states to a new collective sovereign. What to do if the United Kingdom dragged its feet? The answer was and is: have France forge ahead in the leading platoon, and watch the UK adapt to realities. But which realities? Accomodating the new integrationist policies of the EEC/EU, or remaining loyal to the British constitution? After 1945, remaining loyal to the British constitution was the dominant note. That all began to fray when the UK joined the EU in 1972.

In Germany, the European idea became equated with making amends for the excesses of the two world wars; in France, it became associated with the avoidance of intra-European war and a recuperation of French status in world affairs; in the UK, the European bugle blew in muted tones. British federalists, facing the phalanx of inherited loyalty, chose to work by subterfuge. Two stories illustrate the point.

As Arnold Toynbee, a leading light in the federalist movement,  explained, “If we are frank with ourselves, we shall admit that we are engaged on a deliberate and sustained and concentrated effort to impose limitations upon the sovereignty and independence of the 50 or 60 local independent States…It is just because we are really attacking the principle of local sovereignty that we keep on protesting our loyalty to it so loudly .“  British federalists’ influence faded during the war, and the immediate post war years, but their fortunes revived in the 1960s, when opportunities were offered by failures in economic policy in expressed in efforts to seek the remedy through British entry to the EEC in 1972.

In his autobiography, Kind of Blue: A Political Memoir (MacMillan, 2016), Ken Clarke writes of a meeting in the House of Commons that he had with Ted Heath, the architect of British EEC entry.  “I had for some reason been stressing the need to explain that the European Community was not a federal organization,, but was destined to become a Union of Nation States bound together by a treaty. Ted angrily dismissed this. He brusquely said that in his opinion the age of the nation state was now over. He never gave the opportunity of undertaking himself the Herculean task of selling that proposition to the British political class and the public, and he would never have succeeded in persuading even me”.

Heath did not need to convince anyone. The 1972 European Communities Act was penned by Geoffrey Howe QC. Section 1-5 embed in UK law the doctrine of “direct effect », which the ECJ had elaborated in two cases of 1963 and 1964. These cases defined EEC/EU law as overriding national law. At the time, NO OTHER EEC member er states had recognised the ECJ’s claim to supremacy. Indeed, France and Germany came round to modify their constitutions in the years 1989 and later. In the case of France, there is a residue of irrevocable national sovereignty in the constitution; in the case of Germany, the Federal Constitutional Court challenged the ECJ’s claims in its two judgements on the Maastricht and Lisbon Treaties, and recently declared the ECB’s management of monetary policy as ultra vires, and incompatible with the Basic Law. The ECJ and Commission have chosen to ignore the FCC’s claim. It is reasonable to expect therefore that the FCC will insist that a constitutional convention be summoned in order to draw up a new constitution. The FCC has always insisted that the right of German citizens to vote in their own lawmakers is irrevocable. The shadow of the NS state is extant.

The journey from 1972 to 2016.

In the case of the UK, the Heath/Howe definition of UK law as inferior to EU law had long term implications. As powers and competences accrued to the EU, through treaty extension and ECJ activism, the rights of UK citizens to vote in their legislators kept shrinking. It also became increasingly difficult for British politicians to hide the fact that UK law made absolutely clear that the UK was a member state of a supra-national organisation –pace Ken Clarke.

The official British definition of a supra-national EU received visible acclaim when former French President Giscard d’Estaing appointed Lord Kerr as Secretary-General of the European Convention, drawing up the new constitution. Kerr was Giscard’s factotum, and author of Article 50, setting out the procedure for a member state to withdraw from the EU. The Convention sat from 2002 to 2004, and produced the Constitution, which was voted down in 2005 by large majorities in the Dutch and French referenda of that year. The list of 102 dignitaries who formed the Convention includes familiar pro-EU names: Giscard, former Italian PM Amato, former Belgian PM Dehaene; Commission representatives included Michel Barnier.

The constitution for a United Europe, presented in 2002, has been described as “the most radical reform of the institutions ever put forward”.  The subordination of national parliaments to EU institutions was made clear by the provision that if a third of national parliaments believed that a proposed EU law exceeded the Union’s powers, they could force the European Commission to reconsider, but not to block the measure.  Article I-6 of the draft European Constitution stated unequivocally that “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.”

The Constitution was rejected by the French and Dutch voters in their national referenda on the draft Constitution in 2005. But the text was rejigged as the Lisbon Treaty, and as Giscard admitted to the European Parliament, made more complex and less transparent to the public. Jean-Claude Juncker was blunt about this approach: “when it gets serious you have to lie”, he was quoted as saying. The words may stand as the EU’s motto.

The supremacy clause was dropped from the body of the Lisbon Treaty, but duly found its way into an annex. The legal opinion of 22 June 2007 on which this annex to the Lisbon Treaty is based, declares: “It results from the case-law of the Court of Justice that primacy of EU law is a cornerstone principle of Union law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.” (http://en.wikisource.org/wiki/Consolidated_protocols,_annexes_and_declarations_attached_to_the_treaties_of_the_European_Union/Declarations#17._Declaration_concerning_primacy)

In other words, the Court claims supremacy, but that supremacy is not recognized in any Treaty form. For the member states, it is a provisional convenience. For the militants of EU supra-nationalism, British and continental, the argument for fudge is an imperative, including in such matters as the primacy of supra-national over national law.

That is why the slogan “get back control” had such resonance in the June 23, 2016 referendum. How much powers had been handed over also became evident when one of the conditions of Cameron’s “renegotiation” held that if a coalition of 16 national parliaments were to be formed to express and objection to the Commission proposal, the Commission would consider it. Prime Minister May of course never challenged the EU’s definition of law as supranational, which is why she ended ups with the Withdrawal Agreement which in effect offered the UK an option to either exist outside the EU as a law taker, a vassal, or stay in the EU as four provinces in a wider union. May was the first Prime Minister to make clear that the PM was in effect the EU’s Governor in its island provinces.

She lost, big time. 

The UK signed the WA before it left as a supranational legal treaty-that is how it is defined by the EU. But the UK in January 2021 will become a fully sovereign state, bound not by supranational law of the EU but by international law as defined in the 1969 Vienna Convention on the Law of Treaties. In this convention, signatory states agree to the procedures outlined in the text, not least to their right to repudiate a Treaty which is no longer in their interest. In this case, the UK is not repudiating the WA but it is interpreting the WA as an international legal text, where the UK as a sovereign has the right to define its own rules for all its territory regarding its internal market. This redefinition obviously means that the interpretation of the WA could be contentious; had the UK government not advanced this bill, the ECJ would have had de facto jurisdiction over UK laws.

The EU rests assured that it has always been negotiating “in good faith”.

The pro-Brexit press in the UK accuses the EU of not negotiating “in good faith”. The pro-EU supporters, both in the UK and Brussels, throw the invective back at the Johnson government. The reason for this blame game is that both sides have an incompatible view on international law.

European integration has its own theology. That theology is based on a revelation: the recreation of national sovereignties is a sure-fire recipe for a return to war. Everything is therefore justified to avoid calamity: subterfuge and strait deception in the case of British supra-nationalists; grand narratives in the case of France and Germany. The grand narratives are accompanied by a devise, rooted in a French revolutionary tradition. The devise is called “l’acquis Communautaire”, and it holds that what has once moved into the province and competence of the EU machinery can never leave. It takes the form of the accumulated legislation, legal acts and court decisions which constitute the body of European Union law- the Corpus Juris. The total number of pages of the EU’s Official Journal exedes 650,000 pages since its inception in 1957. Research in the EU’s data-base, Euro-lex, shows that 26% of all EU directives, regulations etc are still active. Of these 170, 000 pages, over 100, 000, have been added since Lisbon came into effect. It’s a bonanza for lawyers.

The concept of acquis Communautaire has a sister called l’acquis sociale.. This is also of French progeny, and equally rooted in the revolutionary tradition. Here is a definition: “public provision and social benefits (acquis); extracted as a result of the struggle of generations of workers and employees, does not stem from providential grace. They do not belong to the state. They belong to all citizens”. Once acquired, they cannot be rescinded.

France’s labour code is 3,324 pages long, and growing fast. Over the previous forty years it has tripled in size. Of these, 170 pages govern firings, 420 regulate health and security, 50 temporary work and 85 collective negotiations. Hundreds more are devoted to wages, specific industries and overseas departments.

The key point to note is that the theology of “l’acquis” decrees that there is no going back. Indeed, the presumption is that “going back” is tantamount to bad faith. It is retrograde, reactionary; in the context of EU integration, it is “nationalistic”, just as revoking social benefits is the work of red in tooth and claw capitalists.

Brexit is the Mother of all reversals, unless the EU insists-as Barnier does- on the irrevocability of the EU acquis, to which the UK subscribed, indeed which its 1972 ECA underpinned. That is why the EU was quite happy to show via May’s public humiliation that what was on offer was one or the other: either a vassal status as law taker, occasionally “consulted” for show; or four provinces in the EU’s supra-national federation. There is to be no going back on the Common Fisheries Policy, whereby British waters have been ransacked at British fishing expense; there is to be a “level playing field” on state aid and regulations- a delicious joke where a Frenchman lectures the UK as the country which provides least state aid of the big four countries; there is to be no going back on “social rights”, as if France’s sky-high unemployment resulting from foolish labour laws was a “right” worth defending; the UK is to carry on contributing indefinitely into EU coffers.

To advance this cause, the EU advocates took no prisoners. As Barnier has been reported as saying, there should be no mercy shown. His allies in the UK Establishment were only too happy to oblige. Lord Kerr opined that the EU would bring the British dog to heal; he made a meal of his Scottishness while carrying a British passport; his colleagues in the House of Lords aided and abetted Barnier; so did the 11 judges of the Supreme Court who decreed, unconstitutionally, without evidence, on rumour, and in a judgement packed with inconsistencies and inaccuracies, that Johnson had lied to the Queen; https://storybookreview.wordpress.com/2019/11/06/the-supreme-courts-judgement-on-prime-minister-johnsons-decision-to-prorogue-parliament-part-iv-new-law-or-constitutional-aberration/; EU advocates, while decrying nationalism, backed Sinn Fein, the SNP and Plaid Cymru-ethnic nationalists all, to divide and split a member state which was exercising its right to leave by the EU’s own “constitution”. The UK as the smaller state should be realistic-that is, yield to the logic of great powerdom. The EU was a great power; the UK was not.

Pacta sund servanda, quoted van der Leyen. This is the language used in the 1969 Vienna Convention on the Law of Treaties in Article 26. The article stipulates that every treaty in force is binding upon the parties to it and must be performed by them in good faith. Articles 46 to 72, though are devoted to the complex subject of the termination of treaties. The EU, though aspiring to great power status as a collective sovereign, is not a signatory to the Convention.

The EU has systematically refused to comply with the judgements of the World Trade Organisation: it has disregarded its rulings on GMO, hormone beef and Airbus subsidies. In Portugal versus Council, the ECJ ruled that WTO rulings do not have “direct effect” in the EU’s legal order. In the Kadi-Barakaat case, the ECJ found  that the EU should disregard the UN Charter if the Charter is at odds with the EU’s internal constitutional order. In the words of Advocate-General Maduro EU law did not need to unconditionally bow to international law, if the consequence could be a violation of basic constitutional principles. The Court “considered that the Treaty had established a ‘new legal order’, beholden to, but distinct from the existing legal order of public international law . In other words, the Treaty has created a municipal legal order of trans-national dimensions, of which it forms the ‘basic constitutional charter’. “ “ The relationship between international law and the Community legal order is governed by the Community legal order itself, and international law can permeate that legal order only under the conditions set by the constitutional principles of the Community. »

A rule of thumb in dealing with an Imperial Court.

The rule is simple: you are always in the wrong, until you are proven by the ECJ to be in the right.

The UK signed the WA before it left as a supranational legal treaty-that is how it is defined by the EU. But the UK in January 2021 will become a fully sovereign state, bound not by supranational law of the EU but by international law as defined in the 1969 Vienna Convention on the Law of Treaties. In this convention, signatory states agree to the procedures outlined in the text, not least to their right to repudiate a Treaty which is no longer in their interest. In this case, the UK is not repudiating the WA but it is interpreting the WA as an international legal text, where the UK as a sovereign has the right to define its own rules for all its territory regarding its internal market. This redefinition obviously means that the interpretation of the WA could be contentious; had the UK government not advanced this bill, the ECJ would have had de facto jurisdiction over UK laws.

There is no doubt from the Twitter accounts of Barnier and Frost that it could be contentious. Here is Michel Barnier at 10.37 on 13 September “Protocol on IE/NI is not a threat to the integrity of the UK. We agreed this delicate compromise with Boris Johnson & his gov in order to protect peace & stability on island of Ireland. We could not have been clearer about the consequences of Brexit. Sticking to facts is also essential. A case in point: The European Union is not refusing to list the United Kingdom as a third country for food imports (SPS). To be listed, we need to know in full what a country’s rules are, incl. for imports. The same objective process applies to all listed countries.”

At 13.31 Johnsons’ chief negotiator, Davis Frost, replied: “I would like to make a few comments and state a few facts, in my capacity as the PM’s negotiator in the current and last autumn’s talks. On the Protocol, we indeed negotiated a careful balance in order to preserve peace and the Belfast (Good Friday) Agreement. It is precisely to ensure this balance can be preserved in all circumstances that the Govt needs powers in reserve to avoid it being disrupted. On 3rd country listings: the EU knows perfectly well all the details of our food standards rules because we are operating EU rules. The situation on 01 January 2021 is accordingly perfectly clear. We have discussed this frequently with the EU including last week. Any changes in future would be notified to the WTO and EU in the usual way with plenty of lead time. The EU lists dozens of countries globally on precisely this basis, without any sort of commitment about the future. Yet it has been made clear to us in the current talks that there is no guarantee of listing us. I am afraid it has also been said to us explicitly in these talks that if we are not listed we will not be able to move food to Northern Ireland. The EU’s position is that listing is needed for Great Britain only, not Northern Ireland. So if GB were not listed, it would be automatically illegal for NI to import food products from GB.I hope the EU will yet think better of this. It obviously makes it no easier to negotiate a good free trade agreement and the solid future relationship which we all want.”

In other words, the EU wants its Irish cake and the British cake, too. It has not modified its position one iota. It wants the UK as a law taker, not as an independent sovereign state whose parliament can pass laws for, its own territory. In so doing, it calls on its UK supporters; it invites the SNP to challenge the 1707 Act of Union, and the 1801 Act of Union with Ireland. It does not recognize the UK as a co-equal sovereign. Barnier uses the word “sovereignty” in conjunction with the UK as an embarrassment; his UK backers clearly agree. To them, sovereignty is a joke.

Brendon Lewis misled the House in saying that the bill infringed “international law”. There are two reasons that may explain this: the “progressive” press grasp for their favourite one-size-fits-all explanation. Our Brendan is a dullard. Stated as a fact, much like the unsubstantiated “facts” trotted out by Lady Brenda Hale in her unconstitutional judgement on prorogation. The only conclusion on this, given the dearth of evidence, is maybe our Brendan is dull, maybe not.

Another explanation is that he is a Remainer, and agrees with the Tory backbenchers who questioned him in the Commons that the UK should stick to the EU’s supranational description of the Wthdrawal Act script. If this is the explanation, and I suspect that it is, the simplest and correct thing to do is for the government to announce that Minister B. Lewis misled the House, inadvertently or not. But he misled the House. He should have said that the internal market bill planned to modify the EU’s interpretation of the WA,-in the event of a no deal, rather than the free trade deal negotiated in good faith between the two parties. In that eventuality, the UK parliament was placing international law on an equal footing with supranational law. It was indicating to Barnier that the UK would not be rumbled into vassaldom.

Quite simply, it was reminding the EU of a fact to which the EU subscribed in the WA and the Protocol that the Crown in Parliament will once again be sovereign in the UK as of January 2021. International law will be thereby strengthened, not infringed in any way.

My bet: we are heading to a free trade deal, where the UK acknowledges the collective sovereignty of the EU27, and the EU27 reciprocate-with no bells and whistles attached. The night of September 14 2020, Prime Minister Johnson won a vote in the Commons on his internal market bill by 77 votes. The Daily Telegraph reported: “One MP member told me today that last night’s vote was “the last twitching of the Remain corpse”.

I add this on September 17 @ 19.04 hrs.

Peter Foster posts the following-I précis the article in the FT, “The shape of an EU-UK deal is there for all to see”.”It is now a week since Boris Johnson pushed the “nuclear button” on the EU-UK trade negotiations by tabling legislation  that would enable the British government to dis-apply key sections of last autumn’s withdrawal agreement covering Northern Ireland. But if the aim was to provoke a walkout by Michel Barnier and his team, it failed. Despite such a clear act of provocation, the EU continues to negotiate and, despite all the shenanigans, diplomats were told that the last round was actually more positive than expected.”

Please not the tendentious reporting. The legislation was tabled as a precaution, in case Michel Barnier’s threat, recorded by Lord Frost in his tweet above, should seek to go back on the original deal. There was no public statement of an intent to provoke a walkout by Barnier. Quite the contrary. The body language of the negotiators was favourable. That is why I reached the conclusion above.

“So what now? The EU has not walked away, but Mr Johnson has not backed down either. The government is pushing on with the legislation, albeit with the probable addition of a parliamentary “safety catch” that does little or nothing to reassure EU capitals given the PM’s 80-seat majority.On the EU side, it would be overstating things to say that there was “confidence” that a deal could be done, but there is a determination to keep listening, if only to avoid being blamed for a no deal, if that is what eventually happens (some capitals also still can’t quite believe that in the face of Covid-19 the UK would really add the unnecessary pain of a no deal).”

This paragraph is acceptable reporting.

“Indeed, the shape of a deal is actually there for all to see, even if the sequencing and choreography has been made much harder by Mr Johnson’s threat to unilaterally rewrite The Northern Irish Protocol if he doesn’t get the outcome he would like.”

We are back to propaganda here. A truthful statement is that the EU negotiator was pushing his luck to see how far the supranational arm of EU law could reach into the UK, and the Johnson administration took action to ensure that this option would never be viable.

Foster resumes: ” It (a possible deal) goes something like this: the UK obtains a “zero tariff, zero quota” free trade agreement with Brussels by reaching a mutually acceptable position on state aid (there is a very good Institute for Government paper here on what that might look like).This deal would fall way short of the EU’s opening demand for dynamic alignment with EU rules and oversight of the European Court of Justice, but would require the UK to accept the need for “shared principles” on subsidies that go beyond broad World Trade Organization definitions; an independent regulator that enabled complainants to seek legal redress and, probably, some form of overarching dispute resolution mechanism.If this is achieved, and the UK government’s paper on state aid suggests the two sides remain far apart on this subject, then Downing Street’s concerns about the Irish protocol could largely be massaged away. “

This statement duplicates Lord Hague’s recent article on the need for 10 Downing Street to be “flexible” on state aid. Of course, it all depends on what is meant by “flexible”.

“For a start, a “zero-tariff” deal would remove the question of which goods were at risk of paying tariffs as they crossed from Great Britain to Northern Ireland. A host of regulatory burdens would remain, but the government has announced £200m for a Trader Support Service to lighten the load on business. A deal on state aid would also provide the opportunity to finesse and address the issue of Article 10 of the Irish protocol, which the government fears will “reach back” into state aid decisions that primarily affect Great Britain, diluting the very sovereignty that Brexit was supposed to achieve.And if all those issues were resolved, it seems unlikely that the entire package will be brought down over the question of whether NI businesses need to complete Exit Summary Declarations when sending goods into Great Britain. Yes, this is a requirement under the Union Customs Code (which Mr Johnson agreed NI should follow) but equally officials on both sides don’t see it as insurmountable.”

“Part of the problem now is political choreography, given the hard positions both sides have taken. The EU has set a deadline for September 30 for Mr Johnson to withdraw the offending legislation, which is not going to happen. One solution might be for the European Commission to launch infringement proceedings against the UK (which it believes it can do before the bill is signed into law), which would satisfy EU honour while talks continued. “

Johnson will not withdraw the offending legislation, in my view, because it is essential that international law be upheld against the imperial claims of supranational law, with which the FT and Foster clearly sympathise-and which is at the heart fo the June 23, 2016 Leave vote.

“On the UK side, the progress of the legislation could be somewhat soft-pedalled.But ultimately such a deal, if it was reached, would be ratified by the EU side only on condition that the UK removed the offending sections of the internal market bill  and fully implemented the Irish protocol — as it constantly professes that it intends to do. It is this scenario that keeps the EU talking. “

The “offending sections” can be withdrawn, if the EU drops its threat to treat the UK as a third party in food exports to Northern Ireland, ie to its own territory. In other words, it is the EU that must back down.

“It will also ensure that if a no deal happens, it will happen only because the British decided to walk away from the table or actively breach its obligations under the withdrawal agreement. The fundamental question remains whether the government is interested in a deal on these terms or if — as the former UK ambassador to the EU Ivan Rogers outlined in an interview with the Irish Times this week — the government has already decided a no deal is unavoidable.If that is the case, there is a brute political logic to their actions.”

Here we are back to propaganda, with the former UK ambassador to the EU-the man who negotiated the “re-negotiation” deal that sunk Cameron-wheeled on as exhibit.

Foster continues: “If a deal on state aid for the EU-UK free trade agreement is such an impingement on sovereignty that Mr Johnson and Dominic Cummings cannot stomach it, that logic dictates that the Northern Ireland protocol must be “fixed”.If the goal is untrammelled sovereignty, then the kind of “reach back” on state aid that the government has been warned about by the UK civil service (both in January and at the time of the renegotiations) is obviously incompatible with that goal.”

The question which Foster should ask, if he were seeking to be objective, is whether the EU will or will not take an imperial view of supranational law, or allow for a grey area in NI. But back to propaganda:

“Politically, as Sir Ivan says, it may be more palatable to blame the disruptions caused by a no deal on EU intransigence than as a result of a deal Mr Johnson signed and which — no doubt — only a few weeks earlier, will have been hailed as another “oven-ready” triumph by the PM.”

For the moment, it is clear that 10 Downing Street hopes for a deal. But Foster is of the opinion that the EU and a Biden US have warned as Big Guys that might rules. The “thug”, according to Foster, is Johnson, and it is for Johnson to give in.

This is the sort of incredibly distorted reporting that shows that the Remainers have not abandoned hope for a bad deal for the UK, that can be re-submitted in a future referendum, and June 23, 2016 reversed. This is the height of irresponsibility.

“There is still time (in the face of a growing number of international warnings, including the latest from Joe Biden) to reverse course and do a deal, but for all the legislative thuggery, the ball remains in Mr Johnson’s court.”

Foster says the UK has to give in. That’s what the FT thinks. That’s what many Remainers think. Is that what the EU heads of government think?

About Jonathan Story, Professor Emeritus, INSEAD

Jonathan Story is Emeritus Professor of International Political Economy at INSEAD. Prior to joining INSEAD in 1974, he worked in Brussels and Washington, where he obtained his PhD from Johns Hopkins School of Advanced International Studies. He has held the Marusi Chair of Global Business at Rensselaer Polytechnic Institute, and is currently Distinguished Visiting Professor at the Graduate Schoold of Business, Fordham University, New York. He is preparing a monograph on China’s impact on the world political economy, and another on a proposal for a contextual approach to business studies. He has a chapter forthcoming on the Euro crisis. His latest book is China UnCovered: What you need to know to do business in China, (FT/ Pearson’s, 2010) (www.chinauncovered.net) His previous books include “China: The Race to Market” (FT/Pearsons, 2003), The Frontiers of Fortune, (Pitman’s, 1999); and The Political Economy of Financial Integration in Europe : The Battle of the Systems,(MIT Press, 1998) on monetary union and financial markets in the EU, and co-authored with Ingo Walter of NYU. His books have been translated into French, Italian, German, Spanish, Chinese, Korean and Arabic. He is also a co-author in the Oxford Handbook on Business and Government(2010), and has contributed numerous chapters in books and articles in professional journals. He is a regular contributor to newspapers, and has been four times winner of the European Case Clearing House “Best Case of the Year” award. His latest cases detail hotel investments in Egypt and Argentina, as well as a women’s garment manufacturer in Sri Lanka and a Chinese auto parts producer. He teaches courses on international business and the global political economy. At the INSEAD campus, in Fontainebleau and Singapore, he has taught European and world politics, markets, and business in the MBA, and PhD programs. He has taught on INSEAD’s flagship Advanced Management Programme for the last three decades, as well as on other Executive Development and Company Specific courses. Jonathan Story works with governments, international organisations and multinational corporations. He is married with four children, and, now, thirteen grandchildren. Besides English, he is fluent in French, German, Spanish, Italian, reads Portuguese and is learning Russian. He has a bass voice, and gives concerts, including Afro-American spirituals, Russian folk, classical opera and oratorio.
This entry was posted in Constitutional law, European integration, France and Germany, International law, Supranational law, Uncategorized, United Kingdom and tagged . Bookmark the permalink.

8 Responses to The UK Internal Market Bill: Supranational v. International law

  1. philipparees says:

    As always, an outstanding exposition and analysis. This should be read by everyone voting on the Bill as well as anyone who wants to understand how we got here and why Boris is justified.

    Like

  2. johnoflothian says:

    Thank you for this and for all your blogs which greatly influenced my EU referendum vote, altering it from an intended Remain to a Leave. Recognising that they had deliberatedly misled us for fifty years with the claim that our fundamental sovereignty and therefore democracy were unimpaired by entry to the EEC in 1972, I had to give up my naive belief that the British political establishment was at bottom honest. How thoroughly that lesson was brought home to me in the three and a half shameful years after the referendum.

    That this utterly deceitful establishment is still trying to undermine the UK even now should I suppose not surprise me. But it has taken this article to show me that this is what this otherwise baffling row is about. I hope the confident prediction you end with is sustained by events!

    You clearly rushed this out to influence MPs. I hope you revisit it with thorough editing to remove really a lot of small slips – CHRISTOPHER Meyer, surely – and less than clear phrases.

    But that’s cosmetic. The article is pure gold and timely.

    Like

  3. PHILIP LINGARD says:

    Three fundamental practical problems.
    1) The Irish border is a physical border between the EU and a third nation every bit as much as the Estonian/Russian border or the Bulgarian/Turkish border complicated by there having been a hot terrorist war within our lifetimes (I was twice within 20 minutes of wrong place wrong time of IRA bombs in London). Of course the hot war was extinguished by the Good Friday Agreement of which the USA is a co-guarantor. There is no workable Irish solution on anybody’s table now if your interpretation is correct Jonathan.
    2) Brexit has never been defined – we still have no idea if it is a free trade or protectionist project with an incipient split down the centre of the Conservatives over which is slathered copious Johnsonian fudge. The Single UK Market Bill for which the UK is proposing to die in the ditch for is that most Thatcherite bete noire- state intervention and Cummings picking national champions. This is madness on so many levels, not least because Covid has left the EU State intervention rules in tatters rendering Frost et al Quixotically tilting at Windmills. Sancha Panza had a donkey, Johnson is thinking of having a State Intervention policy sometime in 2021.
    3) This whole farce is an SNP dream come true. It rides roughshod over devolution in mostly symbolic and non-specific ways plus gives them the moral opening to call a “specific and limited” consultative Brexit-style referendum irrespective of English Conservative sensitivities.

    Like

    • Thanks for the comment.
      1. The Irish boirder is a physical border. So the only viable solution is a free trade deal, in both sides interests. Canadas style, if possible.
      2. I would disagree here: Johnson has defined Brexit as a sovereign state, taking its own decisions: vis, on fisheries; state aid etc. None of this excludes civilised exchange of info. What it does say is that France (state-aid, eh! wot me?) and Germany(state banks?) must not have a say in what is right/not right for the UK. Free trade zones would be very welcome in parts of the UK. Indeed a sensible EU policy would start thinking of how to break out of the crazy one-size-fits-all approach which has led it to the present impasse.
      3. The 1707 Act of Union is an internal market document. The SNP is denying that Scotland’s major market is rUK. The Scottish voting public may start noticing, as with fisheries, as with the impending fall in prices as EU tariffs are dropped.
      Overall, the best interest-in my humble view-of the EU27 and of the UK is mutual recognition of each other’s equal sovereignty, in other words as recognised in international law. all the best, Jonathan

      Like

      • PHILIP LINGARD says:

        Hello Jonathan,
        Thanks for the reply.
        1) A free trade deal with Northern Ireland inside the Single Market and Customs Union?
        2) Sovereign States share/squander sovereignty as soon as they enter into any form of trade agreement. The theological destination of Brexit is still up for grabs between the competing wings of the Tories.
        3) A most compelling equivalent argument to remain in the EU four years ago. I suspect the attraction of the Act of Union with Boris’ face on it will be lost on over 50% of the voting Scots.
        Overarching is the need to extend the Transition Period. Logistics UK have this morning admitted the IT will not be ready for 31 December so a bit of a problem moving any physical goods thereafter.

        Like

  4. 1. A free trade deal in international law means a free trade deal between equals.That can only mean between the EU27 and the UK. Logically, it means less than the EU'”s single market, under supranational law.
    2. Sovereignty means, in my view short of the theology of absolute right to do what you want, the right to make your own decisions in the light of circumstances. It is the bedrock of anti-imperialism. I agree that the destination of Brexit is still highly disputed between Tories: the Remainers who asked B.Lewis the questions, and B. Lewis himself are still harking after May’s “deal”, which posits vassaldom as against 4 provinces. That option is dead in the country.
    3. The SNP’s pro-EU stance is indistinguishable from anti-Westminster.
    It is pretty clear that one of the problems of Brexit is that the british state has lost any capacity for action-I surmise that also goes for its military and nautical capacity, too. Let alone the senior Whitehall inability to conceive of effective action.

    Like

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