by Luis de Sousa
Sun Sep 13th, 2020 at 05:16:58 PM EST
Another extraordinary week in the Brexit saga has come to pass. This time around a complete surprise, as another showdown was only expected in October, when time runs out for a timely approval of a Free Trade Agreement between the EU and the UK, ahead of the end of the transition period on the 31st of December.
The UK government has dropped a legal bombshell on the Brexit process, sending shrapnel in all directions. Time to pick up the pieces and make some sense out of it.
Frontpaged - Frank Schnittger
The Sticking Points
The UK government has tabled for discussion at Parliament a bill to regulate the future internal market of the Kingdom. At its base is the need to regulate trade between the four countries of the UK, in the absence of the trade framework enforced today by the common market of the EU. As everyone knows by know, this bill goes well beyond regulation, it upholds the rule of law in the UK and between the UK and the rest of the world. In summary, these are the key legal aspects of this bill:
- The UK government endows itself with the power to unilaterally modify or re-interpret provisions of the Northern Ireland Protocol (the bit of the Withdrawal Agreement that guarantees the status quo in Northern Ireland beyond the current transition period).
- Any future legal or regulatory provisions introduced by the UK government within the framework of the internal market bill will automatically supersede any internal or international laws.
- Any future provisions introduced within the internal market bill framework can not be considered illegal in any circumstance, whether they clash or not with existing internal or international laws.
The Financial Times provides the details in the excellent video bellow.
With this bill the UK government intends, in a single blow, to unilaterally repudiate the Northern Ireland Protocol, endow itself with means to supersede international regulations, and in general put itself above the law. While in any other developed country such intentions would be unconstitutional, they seem perfectly legal in a country that lacks a fundamental law in written form.
And all this came entirely by surprise. The European Commission, the Irish Government, the devolved government of Northern Ireland, all learned the explosive content of this bill nearly at the same time as the general public. Unprecedented.
To What Purpose?
Grasping the strategy of the UK government is not entirely straightforward. However, reflecting upon the events of recent months it becomes apparent how this bill fits a broader plan. The claims that only now the UK government understood the reach of the Northern Ireland Protocol fall flat.
The negotiations between the EU and the UK towards a trade agreement that could retain some of the features of the Common Market have been essentially stalled for three months. The UK continues to excuse itself from obliging to common standards and regulations, essential pillars of any free trade facility. The unwillingness of the UK government to progress is apparent, EU negotiators complain that once a particular aspect is agreed upon, the UK brings back into question other points previously agreed.
Various media outlets reported during the week that legal work on this bill had been ongoing at least since July. The government consulted with legal experts to thoroughly set its intentions in the text. A tussle eventually erupted among government and consulting experts, unfolding in the resignation of Jonathan Jones, the country's top legal civil servant.
There is only one way to rationalise this bill: it was meant to definitely put an end to the free trade negotiations with the EU. The only concern of the UK government is to obtain such outcome without appearing as the culprit. The hope was for the EU to simply walk away from the negotiation table in face of such contempt for the rule of law.
It thus becomes obvious, the UK government does not wish to build a free trade relationship with the EU. It neither seems to wish the status quo in Northern Ireland to endure, Good Friday Agreement be damned. It might well be the case that it signed the Withdrawal Agreement without any intent to ever implement it, merely to gain time.
What to expect from the EU
The EU, it seems, will have none of that. Trade negotiations will continue next week at the same pace as before. A swift accord is not to be expected, as a long list of important issues remains open, but a simple walk out is not happening.
At the same time, the introduction of the new internal market bill will not go without reaction. The European Commission interprets its tabling for discussion at the UK Parliament as an outright violation of the Withdrawal Agreement. That treaty obliges both parties to use a joint mechanism for legal clarification and conflict resolution that was thus bypassed. Midweek came the ultimatum: if the bill in its current form is not withdrawn the EU will seek legal action against the UK.
For a government seeking to position itself above the law, legal action from a foreign entity might not be of concern. However, the strategy of the EU is far more over-reaching. The entry into force of a EU-UK trade agreement remains subject to the full implementation of the Withdrawal Agreement. If the EU refers the UK to the ECJ or an international court, no free trade between both economies will come into force until that legal tangle is undone.
What to expect from the UK
At this stage it seems unlikely for the internal market bill to ever be signed into law. Members of the UK House of Lords vocalised their opposition early on, but it seems that even in Parliament the bill might not pass in its current form. However, it is almost certain to burn the coming two weeks of the political and media calendars. By then, with October at the door, chances of a timely approval of a EU-UK trade agreement will be marginal.
By this time it is evident to everyone that whatever the current UK prime-minister says is not to be taken seriously. Therefore, the promises to walk away from trade negotiations with the EU on the 15th of October or to exit the EU Common Market on the 31st of December can not possibly be taken for granted. It might well be, that finally gazing at the edge of the cliff, Boris Johnson decides to extend the transition period and adopt a reasonable negotiation stance on trade.
But that would not fit what increasingly appears as a thorough strategy since the current UK government took office. In the days that followed Brandon Lewis' incredible announcement at Parliament, the press let float that further provisions breaking the Withdrawal Agreement will be tabled with the Autumn Budget (possibly by early October). What if, when Boris Johnson claimed to prefer dying in a ditch than having a border down the Irish Sea, he was for once truthful?
The End Game
I have been skipping my spice, therefore my clairvoyance is poor at this moment. However, the pieces of a well thought out plan seem to fall into place, this UK government never had the intention to reach a trade agreement with the EU. The end game is to come out of it not looking as the antagonist of the plot.
I see the probability of a EU-UK trade agreement entering into force on the 2nd of January, the first business day after the current transition period as very unlikely. I would not risk more than a twenty percent chance.
Some may see this bill as mere bluff, without proper consequence. But Boris Johnson's government is tangling itself in such political cobwebs, with deadlines, ultimatums, legal acrobatics and diplomatic brinkmanship that if it wishes to perform another of its famous U-turns it might well find itself unable to so.
Signing off on a light-hearted note I leave below an old song that come to mind as I read the first reports on the internal market bill. It is part of an LP entitled "British Steel".