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Ministers will be given powers to “not apply” elements of Northern Ireland’s Brexit agreements in the domestic market bill, in a move that legal experts say is a “glaring” violation of international law.
The bill, published on Wednesday, seeks to empower ministers to unilaterally decide how to apply the Northern Ireland protocol in relation to controls on goods going from Northern Ireland to Britain.
It also eliminates article 10 of the protocol in relation to state aid and establishes that “it will not be interpreted in accordance with the jurisprudence of the European court” or “in accordance with any EU legislative act”.
This is a contradiction to the section of the protocol that is based on the “direct effect” of EU law, which would allow any person or company to rely on EU law in a local court, and that Boris Johnson signed in january. .
The legal academics pointed to paragraphs 42, 43 and 45 of the internal market bill as a sharp rewriting of the protocol.
“This is a remarkable piece of legislation and expressly contravenes our international legal obligations to the point that the legislation itself says this is the intention, as does Brandon Lewis [the Northern Ireland secretary] yesterday, “said Catherine Barnard, a professor of European law at Cambridge University, adding that the bill was” really amazing “in its clarity.
Steve Peers, professor of law at the University of Essex, said: “This is an obvious violation of international law. It could be argued that this is not a violation because it has not happened yet, but certainly powers to violate are being given. “
Paragraph 42 of the bill is unequivocally entitled “Power to revoke the application or modify export declarations and other exit procedures”. It says a minister has the unilateral power to decide what controls will apply to goods going from Northern Ireland to Britain, and not to the EU alongside the UK.
“A Crown Minister can, by regulations, lay down provisions on the application of exit procedures to goods, or a description of goods, when moving from Northern Ireland to Great Britain,” he says.
It goes on to say that the minister will be able to take into account “the need for Northern Ireland products to enjoy unrestricted access to the rest of the UK.”
It does not specify what the checks are, but this recalls Johnson’s promise during the election campaign that there would be no controls on goods crossing the Irish Sea.
Paragraph 42 gives the government powers to ignore Article 10 of the protocol defining state aid rules, all backed by EU law due to Northern Ireland’s special status in the single market after Brexit.
“Article 10 should not be interpreted: (i) in accordance with the jurisprudence of the European court; (ii) in accordance with any EU legislative act, including regulations, directives and decisions ”, states the bill.
Paragraph 43 prohibits any authority other than the secretary of state from notifying Brussels of any state aid rules that could have included decentralized administration at Stormont, while paragraph 45 “protects them from judicial review,” Barnard said.
She said that while she was surprised by the bill’s frankness, it had to be explicit to avoid a legal challenge, as British courts could rely on EU law to overturn decisions made by ministers authorized by the bill if it became an act.
The government also released its post-Brexit state aid plans, confirming that it would follow World Trade Organization rules rather than EU rules as of January 1.
