11 September 2020
Allowing tariffs on goods crossing the Irish Sea would undermine the Good Friday Agreement

The UK has reached a critical moment in securing its post-Brexit future. This week, Boris Johnson’s government introduced important legislation, the internal market bill, to ensure the maintenance of a free market in goods and services within the four nations of the UK after leaving the EU.

There has been notable concern about the bill’s proposals to restrict the “direct effect” of three parts of our withdrawal agreement with the EU with respect to Northern Ireland. Among other things, the bill would prevent the imposition of EU tariffs on all goods sent from Great Britain to Northern Ireland.

I believe the government is right to do it and the outcry is overwrought.

What critics seem to have forgotten is that the Brexit agreement makes clear that Northern Ireland is part of the UK’s customs territory. Goods should be allowed to flow between Great Britain and Northern Ireland without tariffs unless they are deemed “at risk”. The problem is that the “at risk” category is not defined. 

This gives the EU too much discretion because it could in theory define all UK products as “at risk” if it wishes and levy tariffs on all goods as they cross the Irish Sea. Such a possibility is contrary to the Act of Union that underpins Northern Ireland’s status within the UK and abolishes all customs duties between the constituent parts of the UK.

Introducing customs duties between Great Britain and Northern Ireland would alter the constitutional status of Northern Ireland within the UK. In doing so, it would obviously breach the 1998 Good Friday Agreement that brought peace to Northern Ireland. That settlement states that Northern Ireland’s status cannot be changed without the consent of its people.

Surely, if the EU didn’t intend this — and it has stated constantly that they wish to preserve the peace accord — then it has no reason to object to a UK law that blocks such a prospect.

If, as a cynic might assume, the withdrawal agreement was actually intended to be used to bully the UK, or give advantages to EU goods producers, then it makes it all the more important for the UK to pass a bill to block this blatant attack on our constitutional settlement. 

I am also intrigued by some of the protests about the inviolability of international law — including objections from the EU itself. After all, the EU has also breached international law when it suits. The EU has disregarded a number of adverse rulings by World Trade Organization, including those that involve subsidies to Airbus and an EU/US steel and aluminium dispute

Furthermore, the European Court of Justice has in another case, Portugal vs Council, rejected the application of direct effect to the WTO agreements in EU law, in essence finding against treaty obligations and in favour of the EU domestic law. The EU is being just a bit hypocritical.

The Brexit withdrawal agreement is clear. The parties must negotiate on the future relationship “in good faith and in full respect of their respective legal orders”. I believe the bloc is already in breach of that when it threatens legal action to enforce terms that could jeopardise the UK’s constitutional settlement.

Furthermore, there is an international law principle that treaty powers should be exercised in good faith. I believe the EU’s insistence that it needs the power to impose full tariffs on goods crossing the Irish Sea represents a further example of bad faith.

The UK’s internal market bill should not surprise the EU. After all, the bloc knew full well that Mr Johnson intended to protect the internal UK market. The EU surely must understand the act implementing the withdrawal agreement it signed has a clause saying “nothing in this act derogates from the sovereignty of the Parliament of the United Kingdom”. They will have known this gives the Westminster parliament the power to pass such legislation. 

Of course the Johnson government has the right to ensure our constitutional settlement and sovereignty are protected. It is right to secure trade within the UK and ensure we are ready for the day when Brexit is finally complete later this year.

There would be no point in the UK voting to leave the EU and regain its sovereignty, only to find it stolen away by the back door in Ireland by the EU. No other country worth anything would accept subjecting itself to obeying laws and regulations over which it has no control. Neither should the UK, with its proud history of standing for freedom.

Sovereignty is what British people voted for, not subordination.

 

First published in the Financial Times