Following a meeting with Maros Sefcovic (Vice President of the Commission), the UK Contact Group Cochairs David McAllister and Bernd Lange issued a statement on the 14th June 2022. It addressed concerns that the Northern Ireland Protocol Bill was not in compliance with international law as outlined under the Withdrawal Agreement and Trade and Cooperation Agreement.
The Contact Group stated that the UK was required to work with the European Union (EU), and that they needed to find joint solutions to ensure the stability of Northern Ireland.
The Northern Ireland Protocol Bill granted UK ministers the power to repeal parts of the Northern Ireland Protocol as well as the Withdrawal Agreement they signed when they joined the EU. Critics of this bill claimed that it was clearly in violation of international law.
On the other hand, the UK government argued that these changes are a ‘necessity,’ and that they were necessary to protect UK interests if the UK leaves the EU.
Controversy and The Role Of Retained EU Law (Revocation And Reform). Bill
The UK government justified its move using a doctrine of necessity. However, a necessity defense can only be invoked if the state proves that it is necessary to protect against ‘grave or imminent peril’ and secondly that the action does no severe harm to the essential interests of the states involved.
The British government had not met any of these conditions, which put them at risk for violating international law. It would be difficult for the government to prove that they were doing only what was’strictly required’, as the legal changes have overridden most EU protocols.
The UK government’s decision not to withdraw from the Withdrawal Agreement by using domestic legislation is also a violation of the pact sind servanda principle, which is an essential principle in international law as outlined under the Vienna Convention Law Of Treaties.
Every treaty is legally binding under the pact are servanda. Parties to treaties have a legal obligation to follow them in good faith. The UK was therefore in violation of international law for multiple reasons.
The UK government introduced the Retained EU Law Reform Bill to address these issues. This bill would enable them to quickly pass legislation to repeal EU laws and allow for less scrutiny by Parliament. This does not prevent the UK from violating international law under the Vienna Convention and could lead to legal and political consequences for the UK.
What is the Retained EU Law (Revocation and Reform) Bill?
To allow ministers to examine and repeal aspects of EU law as part of the Brexit plan, The Retained EU Law Reform (Revocation and Reform) Bill was created. This includes:
* A “Sunset” date is set for 2023. This provision allows all ‘EU-derived subordinate laws’ and all retained direct EU legislation’ (Section 2) to be revoked. It includes aspects of employment, data protection, environmental law, product standards, and company law.
* Allowing ministers to quickly repeal or amend EU law with limited Parliamentary scrutiny (Section 3).
* Reversed historical position, where EU law should prevail over domestic law (Section 4). This could lead to conflicts between EU and domestic law
* The removal of the general principles in EU law. This could lead to different interpretations by courts in the future. This could lead to disputes, confusion, or conflict over the general laws, which may cause disproportional rulings (Section 5).
It makes it easier for UK law to leave EU caselaw faster and allows for Government Law Officers, such as the Attorney General, to intervene in cases that a court is deciding whether to leave EU law. If they feel that a ruling from the CJEU pre-2021 is important to the public, the Lower Courts can appeal to the Court Of Appeal and Supreme Court.
Northern Ireland: A Bartering Tool or an Obstacle?
The legal position of the UK government is that they admit that the passage of the Northern Ireland Protocol Bill violates the Withdrawal Agreement/or protocol but that these modifications were necessary to protect relations with Northern Ireland according to the “doctrine of necessity”, a fundamental concept in international customary law.
The doctrine of necessity, however, is limited to EU law and only applies to a few exceptional situations.
Critics claim that the Retained EU Law Reform and Reform Bill could not be used to override the majority of EU laws. As such, it might have been more effective for them to protect their actions under Article 16.
In any case, it is becoming increasingly difficult to safeguard relations with Northern Ireland after Brexit. This includes trading arrangements where there have been many logistical issues. The UK government will need significant negotiations with Ireland, the EU, and other parties in order to maintain good relations.
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