Stephen Kinnock: I have a question about the role of the European Parliament in all of this. On 11 September, the European Parliament issued a pretty unequivocal statement saying that the provisions in the UK Internal Market Bill that seek to override the legally binding withdrawal agreement were a breach of international law and not acceptable to the European Parliament. The European Parliament said that it would refuse to ratify under any circumstances any agreement between the EU and the UK that breaches the withdrawal agreement.
Perhaps I will turn to you first, Georgina. Can you give an assessment of the extent to which the European Parliament’s position is influencing the position of the EU member states?
Georgina Wright: Thank you for the question. This is valid for the European Parliament but also for the member states. They have been very clear that there would only be a future agreement providing there is full application of the withdrawal agreement. That has always been a condition from the very beginning.
That being said, the European Parliament felt it had not enough time to deliberate in the article 50 negotiations. They have their own constituents who they need to stand up for. In a sense, they have to try to maximise that time and show that, yes, they are standing up for what they believe in. A lot of this is also politics. My conclusion is that, if EU member states are happy with the deal, I doubt very much that the European Parliament would vote it down.
That being said, the full application of the withdrawal agreement is very important. If the UK Internal Market Bill goes through unamended, I suspect it will decrease flexibility and compromise in other areas, particularly in the future trade agreement. I would not take that threat lightly. Of course, there is always the possibility that they will vote it down. More to the point, it really makes Michel Barnier’s task a lot harder, because he has to go to the European Parliament and to member states and say, “Let us move away from our mandate. Trust me on this.” They can then turn around and say, “How can we trust you on this? The UK is going ahead and trying to unpick the withdrawal agreement.”
Would they vote it down? Probably not, but it will certainly make them more bullish on other aspects, particularly on future trade agreements.
Stephen Kinnock: Catherine, what assessment can you make of whether Bob Neill’s amendment had any effect in terms of the EU’s legal service? Has there been any success in terms of the objective of that amendment, to give some reassurance to the European Union, or is the amendment just seen as smoke and mirrors?
Professor Barnard: The Bob Neill amendment allows the House of Commons to approve any exercise of these powers. It is just the House of Commons; the House of Lords is to note. The point is that the powers themselves, if exercised, will breach article 5 and article 10 of the Northern Ireland protocol and articles 4 and 5 of the withdrawal agreement itself. It does not make that much difference, because the fact is that clauses 42 and 43 say clearly that there will be powers to disapply or modify article 10 of the Northern Ireland protocol and, likewise, to turn off article 4, which is on direct effect, in respect of clauses 42 and 43.
The fact is that there is a breach of international law. Now, we know the argument: under domestic law it would be lawful because of section 38 of the 2020 Act. Section 38 reasserts parliamentary sovereignty. It was always clear that Parliament was always sovereign and thus the UK Internal Market Bill, as a later Bill in time, will prevail over the European Union (Withdrawal) Act 2020, but that is at domestic level and not at international level. It would be a breach of international law.
Stephen Kinnock: Just to probe that further in terms of the implications of breaching international law, given your legal expertise and perspective on this, to what extent might that influence British attempts to strike other trade deals or, indeed, to enter into any other legal arrangements? By doing this, are we sending our trade negotiators naked into the conference chambers, to quote Aneurin Bevan? Are we affecting other aspects of the United Kingdom’s standing in the world, for example even things such as our sovereign debt status?
Professor Barnard: I would not necessarily say naked, but maybe semi clad. It has not helped our position very much. We also know that the UK concluded the trade agreement with Japan after the UK Internal Market Bill was published, so it is perhaps not devastating. On the other hand, it raises a difficult moral point. When we criticise other states for non compliance with international law, we have traditionally done it from the perspective of having been acting in compliance with international law ourselves. The fact is that there is a breach. Brandon Lewis has said it is a specific and limited breach, but nevertheless it is a specific and limited breach of something that is fundamental to the withdrawal agreement—namely, key parts of the Northern Ireland protocol. It might be limited, because it is about the Northern Ireland protocol, but it is also fundamental to the Northern Ireland protocol, which was entered into less than a year ago.
Stephen Kinnock: My final question is to Shanker and it is on negotiation strategy. One of the running themes of the Government throughout these negotiations, certainly since this current Government have been in office, is that by threatening no deal you increase your chances of getting a deal and you increase your leverage. Can you give a single example of where that strategy has succeeded? Is there any evidence at all that threatening no deal or threatening to break international law in any way has led to a softening of the European Union’s position or in any way increases the chance of getting a deal?
Shanker Singham: This is a sui generis negotiation, as we said. It is not like a normal trade negotiation that the EU would do with other third parties. The challenge that the UK Government have here is to get the European Union to understand, as David Frost said in his Brussels speech, that the idea that the UK is going to be, in the case of fisheries, an independent port and coastal state and, in the case of other aspects of the negotiations, an independent country with its own legal order, which would not put another entity’s legal order over its own, was not a negotiating position. In his words, this was the purpose of the project.
It has proved to be quite difficult to get that message across to the EU. The Government have manifested various degrees of desperation to get that message across. That message has now finally landed, and that is why we are seeing some movement.
Stephen Kinnock: Can you give an example of the movement we are seeing?
Shanker Singham: The most obvious one is this movement on state aid. The initial EU position was, “You can only satisfy our concern about the level playing field and market distortions in your market by adopting our own legal order, the EU state aid rules, and having the European Court of Justice as the dispute settlement mechanism over the top of your legal order. That is the only way you can satisfy us”. That is not their view now. Their view now is, “Yes, there are other ways you can do it, but we want to see some evidence that you are going to”. That is a massive change, because one is impossible to achieve and the other is eminently possible to achieve and has quite a big landing zone. That would be one example.
I also had a follow up on the issue of the UK Internal Market Bill. I do not particularly understand why Brandon Lewis said what he said about that. I do not see that this is a violation of international law because it gives Ministers powers that would not be exercised except in the event of no trade deal and no agreement in the Joint Committee. Those powers have not been used yet. In terms of the international law violation, that would relate to the withdrawal agreement and the Northern Ireland protocol. One has to differentiate international law from European law. Setting aside direct effect and so forth are matters of European law. You have two entities here: you have the EU and the UK, and they both have their own internal legal orders.
If there is no free trade agreement and no Joint Committee agreement, we are going to have a problem here, because the NI protocol is full of inconsistencies and ambiguities. It provides that Northern Ireland is in the UK customs territory, and that has to mean something. Similarly, it cannot have been the intention of the parties that EU state aid rules would apply to the whole of the UK through the backdoor of the Northern Ireland protocol, which is the case here. Therefore, there needs to be some clarification on that point. We would not be having this deep debate about state aid if the EU knew that the state aid rules would be covered in the event of no deal anyway.
There are important clarifications that need to be made, perhaps the most important of which is about what you do across the GB NI boundary for products coming from GB into Northern Ireland and how you manage the at risk/not at risk category. The UK would no doubt say, “Because Northern Ireland is in our own customs territory, we can determine what is not at risk and we can show the Joint Committee that there is a particular class of products that is absolutely not at risk, because we have track and trace and everything else to prove that.”
The UK would want that not-at risk category for movements only GB to NI to be a pretty large category of goods, perhaps as much as 70% by value of the goods that move across the GB NI boundary. The EU current position is that everything is at risk unless the Joint Committee says it is not at risk. There are significant changes.