Article 4 of the Withdrawal Agreement provides that the UK must use primary legislation to give full effect to the withdrawal agreement and it is stated that the Internal Markets Bill would allow Ministers to make regulations inconsistent with the UK’s obligations under the Withdrawal Agreements. This remains the central legal issue as to whether a breach of international law takes place.
The Withdrawal Agreement, together with the Northern Ireland Protocol and supporting documents set out the legal duties and obligations placed on each party to the agreement.
One of these requirements is contained within Article 5,
“ The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out talks which flow from this Agreement.
They shall take all appropriate measures, whether general or particular to ensure fulfilment of the obligations arising from this Agreement and
Shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.”
Those objectives include affirming the Good Friday Agreement, which should be protected in all its parts. The Political Declaration further states that the parties should have regard to the “..importance of maintaining the integral place of Northern Ireland in the UK Single Market.”
These legal objectives can not be ignored or trampled on and in my view, the actions of both sides have to legally reflect a negotiation based on good faith taking all appropriate measures to achieve these objectives together with others. It was therefore with dismay that I read reports from David Frost that “ 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….If GB were not listed it would be automatically illegal for NI to import food products from GB.”
In my view, this is an unconscionable threat and certainly in breach of the Article 5 requirement. If this position were to be maintained it would also make it impossible to achieve the stated objectives as outlined in the Political Declaration and is a clear example in my view of mala fides on behalf of the EU.
We should always remember that the legal duties and obligations are a requirement for both parties and we must apply the same legal tests to the conduct of the EU as the UK. In my legal opinion, the negotiating stance of the EU since the Withdrawal Agreement has been contrary to the legal requirements the Treaty places on them and thus in breach of international law. Through their ongoing approach to these matters, they have jeopardised and continue to deliberately pursue aims in breach of Article 5. The UK action through the Internal Markets Bill is a remedial action to address this repudiatory breach and ensure that both parties continue with their best endeavours and the use of all appropriate measures to fulfil their legal obligations and not do anything which could jeopardise the attainment of the objectives of the Agreement, such as preserving the integrity of the Good Friday Agreement and with it peace and prosperity in Northern Ireland. In my view, the Good Friday Agreement on its own does not allow for the unilateral imposition of trade barriers by a third party on the UK’s Internal Market and therefore the position adopted by the EU and outlined by Mr Frost is in breach of the clear statement within the Political Declaration affirming the importance of the Good Friday and the need for the requirements contained therein to be protected.
I support the Withdrawal Agreement and the Dispute Resolution Mechanisms contained therein and believe that by voting with the Government on Second Reading I am supporting an approach of legal equality and reaffirming that one party to the Withdrawal Agreement, in these circumstances the EU should negotiate in good faith and in line with their legal responsibilities under Article 5 to ensure a mutually beneficial and prosperous relationship between the peoples of the United Kingdom and European Union.
I do not accept the comment of Brandon Lewis MP that provisions of the Northern Ireland Protocol “ break international law in a very specific and limited way.” In my view he is wrong in law and completely ignores the immediate legal question which for clarity I reiterate, the EU in my legal opinion are in breach of Article 5 of the Withdrawal Agreement and it is entirely reasonable and legally consistent with the duties imposed on the parties by the Withdrawal Agreement for the UK to take appropriate measures to ensure fulfilment of the obligations arising from the WA.
