The UK Internal Market Bill set for parliamentary ping-pong: Boris Johnson to remove clauses which threaten international law as negotiations reach endgame

Over the past week, talks with the European Commission president, Ursula von der Leyen, have intensified as the UK moves closer to the end of its transition period. As of the 1st January 2021, the UK will no longer be subject to EU trade rules. However, negotiations are still ongoing, while the UK Internal Market Bill concerning new legislation after Brexit is still making its way through parliament. 

The Republic of Ireland, Northern Ireland, and Great Britain

A point of contention is the  ‘hard-border’ between Northern Ireland (which is part of the UK) and the Republic of Ireland that may be implemented after the transition period. To avoid such a border, the agreement stated that NI would continue to follow the majority of EU trading rules. The Brexit withdrawal agreement has ensured that the changes which will apply to Great Britain will not also apply between Ireland and NI, protecting the Good Friday Agreement. However, as NI plans to continue following the majority of EU trading rules, whilst Great Britain (England, Scotland and Wales) will not, some formal checks on trading will have to take place between NI and Great Britain from next year. 

What is the Internal Market Bill and why is it so controversial? 

Published in September 2020, the Bill contains provisions on the nature of trade between Northern Ireland and Great Britain following the 31st of December. The controversy stems from the Bill’s incompatibility with the Northern Ireland Protocol (NI Protocol). The withdrawal agreement is an international treaty and thus legally binding upon its actors, taking precedence over UK domestic law. Therefore, if any of the Bill’s clauses are at odds with the treaty, the UK will be seen to be breaking its international obligations. 

Of particular importance is Clause 45, which sets out the changes to import and export procedures the UK could implement for goods travelling between Northern Ireland (NI) and Great Britain. These clauses would only come into force should the UK and EU be unsuccessful in reaching a trade deal. However, these clauses would nonetheless break the Brexit withdrawal agreement signed in 2019. 

Deal or no deal?

If the UK and EU cannot reach an agreement by the 31st December, certain checks will have to come into play – for example, the movement of goods between NI and Great Britain will be subject to export forms

However, should they come into force, the aforementioned controversial clauses would give the UK government the power to overlook some of the NI Protocol requirements in the withdrawal agreement. MPs had previously threatened to use these clauses in the Bill as a ‘safety net’ in case the EU fails to reach an agreement, but the proposed plans to unliterally and illegally re-write provisions in the NI Protocol angered the EU.

In recent negotiations in Brussels last week, the Prime Minister has stated that he will remove these controversial clauses. By agreeing to this, the UK has moved closer to what both sides hope to be a free trade deal. It is worth noting that if NI chooses to follow different rules to those for Great Britain, it will have future implications for a “United” Kingdom. Sir Bob Neill, chair of the Commons Justice Committee, has welcomed the decision to remove the clauses, claiming that they would have reflected poorly on the UK’s reputation and respect for the rule of law. 

Parliament weighs in

As the Bill has made its way through parliament, the House of Lords voted to remove the controversial clauses, before the MPs in the Commons voted to reinstate them. This process of a Bill bouncing back and forth through both houses is referred to more commonly as “parliamentary ping-pong”. Following talks in Brussels on Wednesday 9th December, the Bill was defeated again in the House of Commons in the same week, meaning that it will return to the House of Lords this week. 

The side effects

The full story is too complex to be discussed at length in this short article. The controversial clauses may have been originally intended to be used as leverage to place negotiations in our favour. However, the government’s handling of them and indeed, their introduction alone has served to portray a government ‘willing to rip up international agreements’ established not long ago. The UK’s ‘willingness to flout international law’ does little to strengthen trust in the British government. The very idea of breaking the Northern Ireland Protocol has caused an outcry among many MPs and civil servants, and led to the resignation of the UK’s top legal civil servant Jonathan Jones. President-elect Joe Biden also stressed the importance of honouring the NI Protocol. Should the UK act otherwise, it would no doubt create hostility with the US once Biden takes office. 

The EU is waiting patiently for the UK to do the inevitable and to sign a conciliatory deal agreement as negotiations reach endgame. Afterall, membership in the single market requires adherence to the rules. The only difference is, from January, we will no longer have a seat at the table to change these rules, as we previously did, when the UK was an EU member state. Should the PM fail to form any type of deal, there will be long lasting adverse consequences for the Conservative party. 

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