The Commission’s argument for breach of good faith against the United Kingdom: an in-depth analysis from the standpoint of public international law
With under 3 months to go until the end of the transition period amidst negotiations which could hardly be described as successful, it might be considered politically imprudent for the UK government to call into question its obligations under the Withdrawal Agreement (WA). Ostensibly, the United Kingdom Internal Market Bill (UKIM Bill) creates a conflict between UK domestic law and the UK’s international law obligations under the WA, containing provisions that would provide a discretion for Ministers to create regulations allowing for the disapplication within domestic law of parts of the Northern Ireland Protocol (NI Protocol). Such secondary legislation would apply ‘notwithstanding any inconsistency or incompatibility with international or domestic law.’
I will consider below the actual and potential breaches of the WA by the UKIM Bill. I argue that legally the provisions are deeply concerning for a country which prides itself on upholding the rule of law and politically they pose serious trust issues at a time when the UK and EU are running against the clock to agree a future relationship treaty. In this latest contribution to the blog considering the Commission infringement action against the UK, following the earlier analysis published by Oliver Garner, I will analyse the substance of the Commission’s argument for breach of good faith against the United Kingdom from the standpoint of public international law, providing a deeper analysis of the Commission’s infringement claims and potential UK responses.
- Clause 47 of the UKIM Bill
At first glance, clause 47(1) contains the astonishing provision, from the standpoint of international legality, that clauses 44 and 45, and any regulations made under them, and clause 47 and any other related provisions in the Bill, ‘have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.’ Clause 47(8) broadly defines ‘relevant international or domestic law’ as including any provision of the NI Protocol, any other provision of the WA, any other EU law or international law and, just to make absolutely sure, ‘any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal.’
It is important to emphasise that the UK Government have made clear they only intend to ask Parliament to support the use of clauses 44, 45, or 47 (as the case may be) in the event that the UK considers the EU to be in material breach of its duties of good faith or other obligations. The Government statement on notwithstanding clauses lists examples of behaviour the UK Government would consider constituting a material breach of good faith by the EU, and lead to the Government asking Parliament to approve the commencement of clauses 44, 45 or 47 (as the case may be) of the UKIM Bill. Prime Minister Boris Johnson told the House of Commons Liaison Committee on 16 September 2020 that he did not believe the EU were negotiating in good faith, contradicting Northern Ireland Secretary Brandon Lewis, who had confirmed the opposite that same morning.
My consideration of the actual and potential breaches of the WA by the UKIM Bill must therefore be seen through the prism of the UK Government’s position as outlined above.
- The potential breach of the WA by clause 47 of the UKIM Bill
Arguably, the two central pillars in the architecture of the Withdrawal Agreement are its direct effect (Article 4(1)), comprising and complemented by its creation of the obligation of consistent interpretation for UK courts (Article 4(2)), and the obligation of good faith, whereby the parties ‘shall refrain from any measures which could jeopardise the attainment of the objectives of [the WA]’ (Article 5). Good faith is a fundamental principle of international legality rooted in customary international law (pacta sunt servanda) and declared in Article 26 of the Vienna Convention on the Law of Treaties (VCLT). I argue that pacta sunt servanda finds its most accurate expression in the negative obligation. The translation of good faith in a mechanism for domestic application of its provisions is not unique to the WA and can also be expressed as a positive obligation. For example, CETA, Article 1.8, states that ‘each Party shall ensure that all necessary measures are taken in order to give effect to the provisions of this Agreement, including their observance at all levels of government.’
Although direct effect is definitely applicable in UK domestic law via section 7A of the European Union (Withdrawal) Act 2018 as inserted by the European Union (Withdrawal Agreement) Act 2020, it is debatable whether good faith is also implemented in UK domestic law. I contend that there are two ways in which this is possible. Firstly, good faith is an obligation in customary international law and forms part of the common law (see below). Secondly, good faith is an explicit obligation, both expressed in its positive and negative forms, created by Article 5 WA. On the premise that sections 7A(1) and 7A(2) give direct effect to ‘obligations’ ‘arising by or under the WA’, I argue that the obligation of good faith has effect in UK domestic law via customary international law and the direct effect of the WA itself. Clauses 44, 45 and 47 of the UKIM Bill give rise to arguable actual and potential breaches of Articles 4 and 5 WA. As clauses 44 and 45 create powers for the Secretary of State to make regulations which would substantively breach Articles 5 and 10 NI Protocol, I argue that the UK would not be in breach of Article 4 WA and Articles 5 and 10 NI Protocol until the Secretary of State makes such regulations. In this vein, a breach of Article 4 WA and Articles 5 and 10 NI Protocol would arguably occur on the date of commencement specified in any such regulations. Indeed, this is consistent with the UK Government’s position that it will only ask Parliament to commence clauses 44, 45 and 47 of the UKIM Bill where it considers the EU to be in material breach of its obligations under the WA.
- a) The question of an actual breach of Article 5 WA by the introduction of the UKIM Bill
By contrast to the potential breaches outlined above, the broad wording of clause 47 and clarity of purpose expressly stated by the UK Government to ‘switch off’ Article 4 WA may suggest an actual breach of Article 5 WA occurred on the introduction of the UKIM Bill. The negative obligation in Article 5 WA to ‘refrain from any measures which could jeopardise the attainment of the objectives of [the WA]. is similar to Article 18 VCLT, which contains a negative obligation to refrain from acts which would defeat the object and purpose of a treaty upon its signature or ratification, and prior to its entry into force. Article 185 WA provides that certain parts of the NI Protocol shall apply as from the entry into force of the WA (1 February 2020), and other parts shall apply as from the end of the transition period (31 December 2020).
I contend that the broad wording of clause 47 could be considered a ‘measure’ for the purposes of Article 5 WA. Catherine Barnard, in evidence to the House of Commons Future Relationship with the EU Committee, has argued that the ‘strong language’ of clause 47 (as it now is) could breach Article 5 WA and Article 184 WA by the very publication of the Bill. Good faith can be defined as ‘honesty of purpose’ and creates an arguably crucial distinction between Article 4 WA, which I argue can only be breached when the relevant regulations are made, and Article 5 WA. In this sense, the introduction of the Bill demonstrates a purpose on the part of the UK Government to act inconsistently with the WA.
It follows, in my view, that even if the Secretary of State never made regulations under clauses 44 and 45, Article 5 WA has arguably been breached by those clauses, and clause 47, since the introduction of the UKIM Bill. As such, I argue that the introduction of the Bill is an act of bad faith, and that the UK has been in actual breach of Article 5 WA since the day the Bill was introduced in the House of Commons. In addition to the broad wording of clause 47, the clarity of purpose expressed by Northern Ireland Secretary Brandon Lewis and the Government’s statement on the notwithstanding clauses suggests that the UK Government at least willing to contemplate breaking international law by commencing the clauses in the Bill. This very purpose, expressing the rationale behind the UKIM Bill, which we have argued is a measure breaching Article 5 WA, evidences, in my view, an actual breach of Article 5 WA as of the introduction of the Bill for the same reasons as above.
My argument of an actual breach of Article 5 WA as of the introduction of the UKIM Bill is fundamentally one of international legality, which I consider the Commission is in a strong legal position to make in its infringement proceedings against the UK.
Following widespread objections to the Bill in the legal community, including by Geoffrey Cox, QC, the House of Commons approved a new provision in clause 56 of the UKIM Bill following the adoption by the Government of the amendment proposed by Sir Bob Neill (Amendment 66), which provides clauses 44, 45 or 47 (as they now are) will only come into force if approved by a motion of the House of Commons and the House of Lords. I argue that Amendment 66 does nothing to change the actual and potential breaches of the WA. In providing a ‘parliamentary lock’, the new provision simply means that as an additional step Parliament must approve a breach of the WA. Even though it does not alter my argument that the new provision does not change the actual or potential breaches of the Withdrawal Agreement, one wonders why Amendment 66 did not create a ‘parliamentary lock’ for the actual making of regulations under clauses 44 and 45. In my view, the only remedy to the actual and potential breaches of the Withdrawal Agreement is to remove clauses 44, 45 and 47 (as they now are) from the UKIM Bill altogether.
- b) Potential UK responses—the dangerous dance between parliamentary supremacy and international legality
The Attorney General has set out the legal position of the UK Government which states that the UK constitutional principle of parliamentary sovereignty permits breaches of international law in a dualist system. However, whilst Parliament is supreme as a matter of domestic law (insofar as one takes a pure Diceyan approach), the Government has not attempted to forward its legal position as an answer to a breach of international law, and argues that any breaches of international law would be permissible as a matter of domestic law. Pacta sunt servanda is a cornerstone of customary international law (Nuclear Tests (1974) ICJ Rep, p 278) which is incorporated into the common law (Barbuit’s Case in Chancery (1736) 25 ER 777) and domestic law cannot be invoked as a justification for breach of an international treaty (Vienna Convention on the Law of Treaties, Article 27). The day after arguing that Article 62 of the Vienna Convention may justify a disapplication of Article 4 WA, Lord Keen resigned as Advocate General for Scotland, stating ‘I have endeavoured to identify a respectable argument for the provisions at clauses 42 to 45 of the Bill but it is now clear that this will not meet your policy intentions.’
The fact that the Government has no answer to a breach of international law, and relies on an absolutist view of parliamentary sovereignty, goes to the heart of the question of bad faith and an arguable actual breach of Article 5 WA by clause 47, in addition to the potential breaches of Articles 5 and 10 NI Protocol by clauses 44 and 45.
It may be an answer to my argument about an actual breach of Article 5 WA by the clarity of purpose of the UK Government that the UK Government has equally made it clear that it will only ask Parliament to commence clauses 44, 45 and 47 in the event that it considers the EU in material breach of the WA. Lord Chancellor Robert Buckland has described this as an ‘insurance policy’, but as a matter of international law this view cannot be reconciled with my arguments regarding Article 5 WA. In any event, apart from using a Parliamentary Bill (with the UK’s reputation for respecting the rule of law as collateral damage) as leverage in negotiations with the EU, the ‘insurance policy’ argument is chronologically back to front, since measures such as the clauses in the UKIM Bill should arguably be taken in extremis after exhausting the dispute settlement mechanisms in the WA.
It is perhaps forgotten in the hubris of the debate that Article 16 NI Protocol allows the UK and the EU to ‘unilaterally take appropriate safeguard measures’ where the application of the NI Protocol leads to ‘serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade.’ This is a high bar and presumes the exhaustion of dispute settlement in the WA. Article 16 NI Protocol would therefore arguably provide a legal basis as a matter of international law for the future introduction of clauses such as the UKIM Bill notwithstanding clauses.
This takes us to a more nuanced view of good faith vis-à-vis Article 5 WA. Geoffrey Cox, QC, and Bob Neill himself, have argued vehemently against the UKIM Bill’s potential inconsistency with international law, but they both subscribe to the argument that it may be permissible for the UK to introduce domestic legislation incompatible with the WA in extremis through Article 16 NI Protocol. Admittedly, I find this persuasive, but only in the sense that it may have a legal basis in Article 16 NI Protocol. One wonders how Messrs Cox and Neill would respond to a confected argument of bad faith by the UK Government in order to commence the notwithstanding clauses.
Fundamentally, the question of bad faith is bound to the UK constitutional principle of the rule of law (Constitutional Reform Act 2005, s 1). The Government has drafted and proposed the UKIM Bill. Even if one presumed Parliament to be omnipotent in domestic law (which I do not), the executive is subject to the rule of law (Entick v Carrington (1765) 95 ER 807), which includes customary international law through its incorporation in the common law. From the perspective of the rule of law and international legality, therefore, I argue that the UK Government are acting in bad faith within the meaning of Article 5 WA by having introduced the UKIM Bill.
In my view, the clear and egregious words of clause 47 are astonishing from a rule of law perspective. Despite the adoption of the Neill Amendment introducing a ‘parliamentary lock’ before any commencement of clauses 44, 44 and 47, the substance of the actual and potential breaches of the WA I have identified above are not altered. In fact, it rather adds insult to injury by providing Parliament an opportunity to vote to break international law. I argue that clauses 44, 45 and 47 should be removed from the UKIM Bill.
On the basis of customary international law, as reflected by VCLT, and incorporated into the common law, I argue that clause 47 of the UKIM Bill has constituted an actual breach of Article 5 WA since its introduction into Parliament, and that this breach subsists even if the clause is never commenced. I further argue that clauses 44 and 45 of the UKIM Bill potentially breach Article 4 WA and Articles 5 and 10 NI Protocol on the commencement of any regulations made under those provisions by the Secretary of State. For the same reasons advance above, I take the view that clauses 44 and 45 (even if never commenced or no regulations are made under them) have breached Article 5 WA by the mere introduction of the UKIM Bill. As the UKIM Bill moves to the House of Lords, the substantive legal arguments and potential counter-arguments of the UK will be waiting in the wings as the UK mulls over the observations it needs to submit in response to the Commission’s letter of formal notice.