A Law to Break Another Law: The New Brexit Legislation Is Not Going Down Well3 min read

Most people had stopped paying attention to Brexit before it returned to the front pages recently.

Whether you welcome the change of subject or not, the issue at hand is poised to have significant bearing on Boris Johnson’s premiership and Britain’s standing on the world stage.

Causing the recent controversy is the Internal Market Bill which, according to the Prime Minister, is meant to uphold the “sovereignty and integrity of the UK”. Evidently, not everyone agrees.

The bill aims to prevent trade barriers between UK constituent countries once the UK leaves the EU.

It does this through two lovely sounding principles with arguably less lovely effects: mutual recognition and non-discrimination. Mutual recognition means that goods sold legally in one part of the UK can be sold elsewhere in the UK.

For example, even if Scotland would not sell a good it must permit that same good to be sold to Scotland from another part of the UK. Non-discrimination means that no constituent country can use regulatory legislation to give local trade an advantage.

The devolved administrations of Scotland and Wales oppose the bill, arguing it will force the whole of the UK to conform to the same low trade standards.

But the Internal Market Bill has further reaching impact than the UK alone. You guessed it, the age-old issue of Northern Ireland.

The Northern Ireland Protocol comes into effect on the 1st January 2021. From this point, most goods entering Northern Ireland will face EU checks.

The problem is that the Internal Market Bill gives ministers powers to alter how the Protocol is implemented in order to prevent any barriers to trade between Northern Ireland and the rest of the UK.

Despite the signing of the Protocol last October, tensions have persisted between the UK and the EU over Northern Ireland. The UK believes that the EU is taking advantage of the Protocol to propose more trade barriers in Northern Ireland. The EU believes the UK is not doing enough to put it into practice.

This lack of trust has resulted in a bill that not only frustrates the devolved administrations but, because the Northern Ireland Protocol is enshrined in international law, could have wider consequences.

The bill states that the parts of its legislation that affect the Northern Ireland Protocol “cannot be deemed unlawful on the basis of incompatibility with international or domestic law”. It is doubtful that the EU will agree.

Breaking international law sounds bad but what are the actual consequences? Because there is no supranational law enforcer, states are governed by consent.

However, as Petallides (2012) explains, despite shows of universalism, states act in their best interests. It may be in their best interests to consent to international governance at one time, but this can change, as we are perhaps seeing now in the case of the UK.

This does not mean the UK is in the clear. The EU could take the UK to the European Court of Justice which would result in further souring of relations and even penalties for the UK.

What is more likely is that UK’s reputation as a stronghold of law and order will be stained, affecting its ability to condemn breaches of international law overseas.

Boris Johnson is leading the country through a transformation in more ways than one.

Photo by Fred Moon on Unsplash