Internal Market Bill to take back sovereignty over Northern Ireland from the EU

The government’s United Kingdom Internal Market Bill, published this afternoon, confirms that the government intends to override elements of the Withdrawal Agreement negotiated with the European Union to secure sovereignty over Northern Ireland in the event of a “no deal” Brexit. The Bill states explicitly that its provisions will be executed “notwithstanding inconsistency or incompatibility with international or other domestic law”, meaning they will overwrite any other law that gets in its way.

By the government’s own admission, utilising such provisions would break international law, but Downing Street considers the matter to be of fundamental importance to the UK’s sovereignty.

The Bill grants government ministers the unilateral power to decide which goods can be exported from and imported into Northern Ireland – contrary to the Northern Ireland Protocol which states that the UK and EU should make such decisions jointly. Section 42 of the Internal Market Bill states that: “a Minister of the Crown may by regulations make provision about the application of exit procedures to goods, or a description of goods” from Northern Ireland, in order to “maintain and strengthen the integrity” of the United Kingdom internal market.

This has been described by ministers as a “safety net”, supposedly to prevent the EU from gradually unfastening Northern Ireland from the UK customs territory. This became a matter of urgency for the government when EU negotiators threatened to disrupt the trade in agricultural goods between Northern Ireland and Great Britain in the event of a no-deal Brexit, according to The Sun. Under the EU’s interpretation of the Withdrawal Agreement, products of animal origin, such as eggs and meat, will come under EU supervision when the transition period ends, giving Brussels the power to outlaw these items from Northern Ireland’s customs territory.

The Bill also retracts a Withdrawal Agreement commitment to share with Brussels any state aid decisions that affect Northern Ireland businesses. It states: “No public authority apart from the Secretary of State may comply with a requirement of a provision of EU law applied to the United Kingdom by Article 10 of the Northern Ireland Protocol (State aid) to give the European Commission a notification or information relating to state aid.” On this issue, the British government has unilaterally decided that a commitment agreed in last year’s deal, and approved by the House of Commons in January, is now a political choice.

Downing Street has justified its actions on the basis that Article 16 of the Northern Ireland Protocol offers the UK protections against the EU behaving in an unreasonable manner. “The Withdrawal Agreement and the Northern Ireland Protocol aren’t like any other treaty,” a Number 10 statement said. “It contains ambiguities and in key areas there is a lack of clarity. It was written on the assumption that subsequent agreements to clarify these aspects could be reached between us and the EU on the details and that may yet be possible.”

That last line, the suggestion that a trade deal would resolve all the above problems, is what Conservative MPs are holding out hope for.

The government could face challenges getting the Bill through parliament in time for December. The House of Lords – spurred by recent comments from former Prime Minister Theresa May and the admission from Northern Ireland Secretary Brandon Lewis that the Bill would break international law – will likely attempt to amend it. A lively debate in the Lords could mean that the process of passing the new measures into law could last for several months. And, given the classical internationalism of some Conservative peers, there is a real possibility that the Bill might not pass in its current form.

European Union officials consider these new provisions to be the “nuclear option”. They not only abrogate the deal agreed last year, but also reduce the chances of a trade deal being reached by the end of the transition period this December. If the UK government is unwilling to provide state aid details affecting Northern Ireland, then it will likely not come to a compromise on sharing the details of state aid provisions for the rest of the UK, a key stumbling block in the talks.

Now that the Bill has been published, the European Commission will release an official response in the coming days, and it is expected to be scathing. This latest episode has set the stage for weeks of acrimony between Britain and the EU. If a deal cannot be reached by the end of the Brexit transition period, and if Britain ends up revising major commitments agreed with Brussels earlier in the year, it could poison relations between the two for years to come.