Brussels breached Withdrawal Agreement NOT Brexit Britain, legal experts claim

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Brussels breached Withdrawal Agreement NOT Brexit Britain, legal experts claim

The Government's publication of its Internal Market Bill yesterday, which could effectively override the Withdrawal Agreement's Northern Ireland pr

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The Government’s publication of its Internal Market Bill yesterday, which could effectively override the Withdrawal Agreement’s Northern Ireland protocol in some areas, has angered many in Brussels. European Commission President Ursula von der Leyen took to Twitter to claim such a move would breach international law. However, a document, published by the Centre for Brexit Policy, argues Ms von der Leyen and others are missing the point.

The report, authored by among others, Tory MP Bill Cash, DUP MP Sammy Wilson, Martin Howe QC and Barnabas Reynolds, a partner Partner in top City law firm Shearman & Sterling, argues the EU has slipped up by not adhering to Article 184 of the agreement, which requires both sides to use their “best endeavours” to negotiate a deal.

The Centre for Brexit Policy report states: “The key elements of the Withdrawal Agreement including the Northern Ireland Protocol are incompatible with UK sovereignty if continued into the future and should operate merely as a steppingstone to an end of year long-term relationship between the UK and the EU.

“The EU has seriously breached the agreement, even as it stands, since it has been structurally unable to engage in meaningful negotiations (for what is now the majority of the intended negotiation period) towards a sovereign outcome for the UK.


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Boris Johnson

Boris Johnson’s decision was defended by the Centre for Brexit Policy report (Image: GETTY)

Ursula von der Leyen

Ursula von der Leyen, the European Commission’s President, has been critical of the move (Image: GETTY)

“The UK, therefore, needs to prevail on the EU to agree to remove the sovereignty-incompliant elements of the WA and the Protocol or be ready to repudiate the arrangement.”

Article 184 says: “The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration of 17 October 2019 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.”

Tory MP David Jones, a former DExEU minister under Theresa May until he resigned in June 2019, made similar points earlier this week.

He told Express.co.uk: “Now it is absolutely clear that the negotiations have not been carried out in that manner.

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Ursula von der Leyen

Ursula von der Leyen’s tweet (Image: Twitter)

“The EU is insisting on two red lines, that is fisheries and the state aid/level playing field before they will talk about anything else.

“That is not really using best endeavours and certainly not in my view negotiating in good faith.

“Furthermore it manifestly does not respect British sovereignty because it is seeking to impose EU regulations on the UK by effectively leaving the UK to be subject to EU regulations by virtue of the level playing field.

“And it also wants the UK state aid policy to be subject to EU direction.

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Bill Cash MP

Bill Cash MP was one of the report’s authors (Image: GETTY)

Sammy Wilson

Sammy Wilson, the DUP MP, is another of the report’s authors (Image: GETTY)

“I think that has been a problem and now what the Government is recognising they are not negotiating as they had hoped using best endeavours, and it is putting in place the necessary domestic arrangements in the hope they can conclude something with the EU in the future meetings.”

By contrast, Raoul Ruparel, Mrs May’s former special adviser on Europe as well as the former co-director of the Open Europe think tank, believes the UK Government is clearly in breach of international law.

He tweeted: “What surprised me about the clauses in the internal market bill is that not only do they seek to set out UK’s interpretation of the Protocol (which might have been defensible) but they pre-emptively set out that UK will ignore any ruling on these issues. Impossible to defend.

“Furthermore, if the UK wanted to argue that Article 6(1) of the Protocol gave it licence to do these things, it could have earlier on. Indeed I tweeted about this sort of approach in Oct 2019 but UK accepted exit declarations legally required.

Raoul Ruparel

However, Raoul Ruparel believes the Government’s position is indefensible (Image: Twitter)

“Similarly, those arguing Art 184 has been breached in terms of ‘good faith’ are often the same people that argued this article did not provide sufficient grounds for withdrawing from the original NI backstop negotiation by previous Govt.

“One aspect forgotten in all this is what this might mean for democratic consent clauses in the Protocol. Do they still apply following a breach? If in the future there is a vote, would it apply to the legal text of the Protocol or UK law/implementation given two are different?”

Mr Ruparel added: “Furthermore, if this goes all the way to the EU being able to suspend parts of the agreement, could they seek to suspend the democratic consent clauses? In theory they can suspend any provisions of the WA aside from citizens rights. It would be a huge step & likely last resort.

“You may argue that these clauses aren’t relevant given the Protocol is not being implemented, but the UK isn’t yet saying it won’t implement the parts of the Protocol which DUP etc hate the most – checks/admin on goods/food moving GB to NI. So for now they’re still relevant.

David Jones MP

David Jones MP, a former DExEU minister, made a similar point earlier this week (Image: GETTY)

“Despite all this I think the EU’s response will be calm. It is aware UK wants to drag it into a blame game. A rash move to take the UK to the ECJ or ask for changes to the legislation will prompt tabloid headlines No 10 will enjoy.

“As such I think most likely outcome is EU says a deal cannot be done under current approach but it stands ready to do a reasonable deal. This likely leads to a stalemate but with both sides stepping back from the table. Path from there to a deal is now hard to see.”

Earlier this week, a UK Minister accepted the Internal Market Bill does breach international law.

Prime Minister Boris Johnson argued it would be a “legal safety net” to protect the peace process in Northern Ireland against “extreme or irrational interpretations” of the Northern Ireland provisions which could lead to “a border down the Irish Sea”.



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