A UK government minister admitted on Tuesday that its reinterpretation of the special Brexit arrangements for Northern Ireland included in the Withdrawal Agreement will be in breach of international law.
“Yes, this does break international law in a very specific and limited way. We’re taking the powers to disapply the EU law concept of direct effect … in a certain very tightly defined circumstance", the Northern Ireland secretary, Brandon Lewis, said in a response to a question in the House of Commons.
🚨 Brandon Lewis confirms the Government will break international law on EU Withdrawal Deal:
— Adam Schwarz (@AdamJSchwarz) September 8, 2020
"Yes, this does break international law in a very specific and limited way". pic.twitter.com/6B8pU5M2cH
However, Lewis told Parliament that the UK position was not unusual.
“There are precedents for the UK and, indeed, other countries, needing to consider their international obligations as circumstances change", he said, citing revisions in the Finance Act in 2013.
The admission led to criticism from an array of lawmakers, including former Prime Minister Theresa May, who warned that the UK would damage its international reputation if it acts illegally.
“How can the government reassure future international partners that the UK can be trusted to abide by the legal obligations of the agreement itself?” she observed.
Sir Robert Neill, the Tory MP for Bromley and Chislehurst and chair of the justice select committee, insisted that “the rule of law is not negotiable” and an international obligation signed by the government must not be breached.
Irish SDLP MP, Claire Hanna, urged the minister not to “use the threat of a border in Northern Ireland” as a “cat’s paw in this or any other negotiation”.
The DUP's Ian Paisley accused the government of having a “tin-foil spine” in its failure to respond to criticism, while party colleague, Sammy Wilson, an ardent critic of the Brexit agreement, said that "we still don't know the length of and breadth" of border checks due to be established in Northern Ireland.
In a new internal market bill, the British government is expected to reveal its plans to introduce domestic powers to govern part of the Northern Ireland protocol, to which the EU responded by saying that it would end Brexit talks.
According to The Guardian, government sources have said the move does not breach ministerial code as ministers' obligation to comply with international law ended in 2015 when David Cameron removed it from the guidance.
Legal experts, however, including David Anderson, who sits on the House of Lords EU security and justice sub-committee, said that the code does mandate ministers to uphold international law following a 2018 court of appeal ruling that said ministers have an “overarching” duty to maintain commitment.
The Ministerial Code still mandates compliance with international law, despite a change to its wording, as the Court of Appeal confirmed in 2018: https://t.co/EELAJ7i5gi pic.twitter.com/Q41tvvPhKL
— David Anderson (@bricksilk) September 8, 2020
The move reportedly led to the resignation of Jonathan Jones, a member of the British government's legal department, who stepped down due to suggestions that Prime Minister Boris Johnson would override the UK Brexit deal with the European Union.
The Northern Ireland Problem
As part of the United Kingdom's agreement with the European Union in the Withdrawal Agreement, under which Britain left the bloc in January, Northern Ireland is to remain subject to customs agreements and single market rules.
However, this would mean that any state-aid introductions by the British government would also apply to Northern Ireland, due to its membership in the United Kingdom.
This is problematic, due to EU restrictions on levels of state aid, meaning the UK would remain subject to the bloc's regulations even after it has left.
These arrangements are put in place to avoid a hard border between Northern Ireland and the Republic of Ireland, which, under the 1998 Good Friday Agreement, must maintain regulatory alignment with each other.
