The cross : How does the UK’s Internal Market Bill conflict with the Brexit deal?
Emmanuelle Saulnier-Cassia: By the incredible admission of the Minister responsible for Northern Ireland, Brandon Lewis, the text prepared by the government “Violates international law” even if he downplays by specifying that it would be “In a very specific and limited way”. It is unfortunate that the United Kingdom, the inventor of the rule of law, is coming to this kind of legal end, even if it is not yet clear whether this is an intention. real or a new bluff from the executive.
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This UK Government’s Internal Market Bill aims to ensure that ‘People and businesses in Northern Ireland have unfettered access to the whole UK market’, according to Brandon Lewis. This would well contradict the Brexit agreement, which has the status of an international treaty. The latter cannot be revised, because legally, the withdrawal has already taken place since January 31, 2020. The United Kingdom is no longer a member state of the European Union.
The exit agreement guarantees the absence of a physical border between Northern Ireland and the Republic of Ireland, an EU member state, in order to avoid a resurgence of tensions in this region. This situation has the consequence of postponing customs controls, if no trade agreement is found between London and Brussels. London is preparing to pass a provision that says the opposite.
According to the President of the European Parliament, David Sassoli, London is at risk of “Serious consequences” from Brussels. What could these consequences be?
E.S.-C. : I will not address questions of confidence, nor the negotiations under way on the future relationship between London and Brussels, it is more a matter of politics. It is very difficult to read everyone’s intentions. From a strictly legal point of view, however, things are quite borderline. The Brexit agreement provided for specific modalities, with an ad hoc dispute settlement mechanism.
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In the event of a dispute, a joint committee must be consulted. If the disagreement persists, a “Special arbitration group” takes over and issues a binding opinion in connection with the Court of Justice of the EU. At the end of the day, the UK could be sentenced to heavy financial penalties. It’s pretty hard to say how long that might take, since it would be a first, but things could go pretty quickly, if they go through the fast-track process.
The bill raises protest in the UK, including in Boris Johnson’s Conservative camp. Should we expect national litigation on this issue?
E.S.-C. : London is exposed to both British and European lawsuits. It is a safe bet that all the anti-Brexit lobbies are pooling their resources to hire the best lawyers, as they had been able to do previously to slow down or mitigate the withdrawal process. The case could go back to the Supreme Court.
There have often been attempts by successive governments to circumvent their commitments to the European Union. But judges have almost always succeeded in making Community law triumph on issues as diverse as environmental standards, maritime law, waste management, etc.
In 1990, a very significant case even enshrined the domination of the Court of Justice of the EU, by rejecting a law passed in parliament on the registration of fishing vessels for the benefit of EU law. This decision was quite heretical in British law!