The Attorney General has issued a statement setting out the legal basis upon which the Government has acted.
A single internal market is a long-established cornerstone of the UK constitution. The Articles of Union between England and Scotland from 1707, and those between Great Britain and Ireland in 1800, explicitly abolish all customs duties between different parts of the United Kingdom. The Articles also enshrine the principle that, in all treaties with foreign powers, “his Majesty’s subjects of Ireland shall have the same privileges and be on the same footing as his Majesty’s subjects of Great Britain.”
The UK Internal Market Bill is necessary to maintain this free flow of trade around the country. The clauses in the Bill which have received particular attention are those which would allow the Government to restrict the so-called “direct effect” of parts of the Northern Ireland protocol, in order to ensure that they cannot be used by the EU to demand the imposition of EU tariffs on all goods passing from Great Britain to Northern Ireland. This would be a clear breach of the Belfast Agreement by altering the constitutional status of Northern Ireland without the consent of the people of Northern Ireland. It is thus entirely proper that the Government should act in order to prevent such a situation from arising.
Parliament’s ability to pass the clauses which the Government has proposed is expressly provided for in Section 38 of the EU (Withdrawal Agreement) Act 2020, which clearly reaffirms the principle of parliamentary sovereignty. As the Attorney General and other senior lawyers have set out, there are sound legal arguments that these clauses do not breach established international law. It is a general principle of international law that treaty powers should be exercised in good faith. The potential for the EU to use the terms of the Protocol to impose tariffs could be reasonably argued to be an exercise of treaty powers in bad faith. Given that, the Government’s measures are designed to protect the UK from the abuse of a power and are a correspondingly justified measure under international law.
More fundamentally, by breaching the Belfast Agreement, the EU would be breaching a treaty which is not only between Governments, but also between community representatives in Northern Ireland. There is no provision in international law for a later treaty to which those community representatives are not parties to over-ride an earlier treaty and the rights which it enshrines. Once again, therefore, the Government is justified in taking steps to prevent the possibility of such an outcome.
The Government is, therefore, acting both in the interests of the United Kingdom and within established international law.