It doesn’t seem (because it isn’t) very long since the UK Government planned to get Parliament to enact legislation that would have authorised Ministers to make regulations permitting parts of the Northern Ireland Protocol they don’t like to be breached. The Government sensibly dropped this idea in the end: the relevant provisions did not find their way in to the United Kingdom Internal Act 2020, not least as a result of trenchant criticism to the effect that the Government’s proposals would have placed the UK in clear breach of its obligations under international law — obligations that it had only recently itself entered into by agreeing the Northern Ireland Protocol with the European Union. Legislating to permit those obligations to be breached raised obvious and profound rule of law-based and reputational concerns.

It seems, however, that those lessons have been quickly forgotten. A headline in today’s Sunday Telegraph says: ‘Johnson faces fresh Brexit clash with judges.’ The article claims that the UK Government is considering using Article 16 of the Northern Ireland Protocol to remove the EU Court of Justice’s role in relation to the Protocol. But as George Peretz notes in an excellent Twitter thread, the article does not explain why this would involve a ‘clash with judges’.

Peretz goes on to provide that explanation, which can be summarised as follows. (The following is my own attempt to explain this, but draws on George Peretz’s very helpful Twitter thread.)

  • Article 16 of the Protocol only allows the UK to take unilateral measures ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade’.
  • Article 16 therefore provides no legal basis for the UK Government to remove the role of the CJEU on the ideological grounds that appear to be in play at present.
  • If the UK Government sought to exploit Article 16 in this way, it would run into domestic legal difficulties: under section 7A of the European Union (Withdrawal) Act 2018, the Withdrawal Agreement, including the Protocol, has primacy in domestic law.
  • Domestic legislation, including Acts of Parliament, must therefore be read and given effect subject to the Protocol for as long as section 7A is in force in its current form.
  • Domestic legislation that is inconsistent with the Withdrawal Agreement or the Protocol can be disapplied by courts, just as domestic legislation that was incompatible with directly effective EU law could be — and was — judicially disapplied when the UK was an EU Member State.
  • From all of this, it follows that in order for Article 16 to be overridden, it would be necessary not only for Parliament to legislate to authorise Ministers to breach Article 16, but to do so in a way that would override the primacy accorded to Article 16 by section 7A of the Withdrawal Act.
  • Given that the Withdrawal Act (like the now-repealed European Communities Act 1972 before it, which contained functionally identical primacy provisions) is presumably a ‘constitutional statute’, meaning that it cannot casually or impliedly be repealed or overridden, Parliament would therefore need to amend or repeal section 7A in terms in order to remove or qualify the domestic legal primacy currently afforded to the Protocol.  

There is, however, a further difficulty. Even if such legislation were to be enacted, it would not render the UK’s action lawful. For the fundamental point is that the UK would not be seeking to exercise powers granted by Article 16 but would, instead, be seeking to override — ie breach — Article 16. Now, amending section 7A of the Withdrawal Act could render this lawful as a matter of domestic law. But it would have no impact whatever on the position in international law. In international law, the UK would remain bound by the Northern Ireland Protocol, including Article 16; it would remain bound by its general international law obligation to honour its treaty commitments; and it would remain bound by the specific obligation in Article 4 of the Withdrawal Agreement to give domestic effect and priority to the Withdrawal Agreement (including the Protocol) — an obligation that requires section 7A of the Withdrawal Agreement (or something like it) to remain in place.

The bottom line, then, is that this is not an issue that the UK Government — however sovereign Parliament might be — can circumnavigate merely by enacting domestic legislation. Thus the ultimate problem with the Government’s apparent plan is its parochialism. It rests on the assumption that the UK can make domestic law so as to evade its obligations under international law. But this is legally illiterate. The UK Parliament, being sovereign, can make whatever domestic law it wishes — but the notion of parliamentary sovereignty has no purchase outwith the domestic context. This is a point that should evade no first-year constitutional law student, yet it is one that seems to evade the Government with surprising frequency. For example, in a facile paper published in relation to the original iteration of the Internal Market Bill, the Government argued:

It is an established principle of international law that a state is obliged to discharge its treaty obligations in good faith. This is, and will remain, the key principle in informing the UK’s approach to international relations. However, in the difficult and highly exceptional circumstances in which we find ourselves, it is important to remember the fundamental principle of Parliamentary sovereignty.

Yet this entirely misses the point: once the UK’s international legal obligations are implicated, parliamentary sovereignty does not provide the Government with a ‘get out of jail free’ card. As I noted in a piece that I wrote when the Internal Market Bill was first introduced, this constitutional myopia is something that profoundly affected the Brexit debate — and has clearly not gone away:

A conundrum that was rarely explored by the main political protagonists was the relationship between the notions of State sovereignty and the domestic concept of parliamentary sovereignty. It is clear, however, that the latter notion loomed large in the debate, and that exception was taken by many Brexiters to the capacity of EU law to assume any degree of priority over UK legislation. Within this legal worldview lie the seeds of a narrative that regarded membership of the EU — and, by extension, the international legal order more generally — as a particular affront to a peculiarly British notion of sovereignty. It is the elision of the notions of State and parliamentary sovereignty that animates that view, the latter being regarded by some as a form of legal kryptonite that entitles the UK to shrug off the constraining effects of international law that lesser legal orders have no choice but to accept.

The harsh reality is that as a matter of international law, there is no hierarchy of legal orders — and certainly no group of lesser such orders that the UK is privileged to sit outside. Like the rest of the world, the UK, if it wishes to be part of the rules-based international order, cannot pick and choose the international legal obligations that it honours — and talk of parliamentary sovereignty in this context can be evidence of nothing other than ignorance or disingenuousness. Of course, today’s Telegraph story may be wide of the mark; ultimately, as with the Internal Market Bill itself, nothing might come of this. But the reputational damage that arises from this sort of casual relationship with the rule of law is real enough — as is the depressing regularity with which this form of misplaced British constitutional exceptionalism rears its head in domestic political discourse.

The image accompanying this article is reproduced under a Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) licence. A link to the original version of the image can be found here.