The Internal Market bill: Contingency or calumny?

Half a lifetime ago, I remember being admonished in school by an exasperated and red-faced Latin teacher, whose leather strap [like Seamus Heaney’s persecutor a generation before] ‘went epileptic’ on me as he shouted;  ‘Are you stupid – or are you telling lies?’ Neither option appealed to me so I refrained from choosing either, despite the painful consequences that resulted.

In the context of Brexit, it is too simplistic to say that the United Kingdom has been either stupid or has told lies –which is not to say that both characteristics have not featured at various stages of the negotiations, alongside other factors.

The latest trigger point in the tortured process has been presented by the UK government bringing forward new legislation in the form of the Internal Market Bill (IMB) which will be used in the post-transition period to help the UK mediate its internal market after January 2021.

The IMB has been controversial for several reasons –with critics of the government alleging deliberate maleficence and breach of trust, while for their part, the UK claims to be the innocent party, defending itself against the possibility that the European Union will seek to destroy the constitutional integrity of the United Kingdom.

Michael Gove, Co-Chair of the Joint Committee tasked with working through the details and potential wrinkles of the Withdrawal Agreement, claimed that the IMB will provide a safety net in case the European Union acts in a punitive manner after the end of the transition period. Essentially then Gove's defence of the IMB was that it was a contingency, worst-case scenario planning in case the EU did 'what some have said they might do' and separate Northern Ireland from the rest of the UK.

Gove and Boris Johnson thus presented themselves as defenders of the Good Friday Agreement and peace and stability in Northern Ireland more broadly. SDLP leader Colum Eastwood responded to this with a combination of anger and derision in the House of Commons, with a reminder of Michael Gove’s previous hostility towards the Good Friday Agreement: ‘…the Chancellor of the Duchy of wherever he is from also said some years ago that the Good Friday agreement was a “moral stain” and a “humiliation”. That gives us some confidence.’

The IMB has clear legal and political implications. It contains provisions that would allow the UK to use its domestic law to override aspects of the Withdrawal Agreement – specifically requirements in the Northern Ireland Protocol, that it does not want to implement, primarily over state aid and the need for export declarations to accompany goods moving from Northern Ireland to Great Britain. In effect, it would provide a legal basis for UK ministers to unilaterally modify or ‘disapply’ regulations on the movement of goods after 1 January 2021 in the absence of a trade deal with the EU.

The second point of significance is political. It further erodes trust between the UK government and the European Union and casts doubt on whether any further agreements that the UK signs up to before the end of the transition period will not be disavowed by them at a later date. The other political dimension is that if the UK does not implement the Northern Ireland Protocol in full, then the EU Single Market will have to be protected by means of a hard border in Ireland. So that combustible issue has now reignited as a potential outcome of Brexit along with the ramifications it would have for both parts of the island.

Image credit: Author provided.

However, rather than amending the egregious aspects of the IMB during its passage through parliament, as requested by the European Union, the UK government looks set to double down and bring forward a second bill to circumvent aspects of the Northern Ireland Protocol relating to goods moving from Northern Ireland to Great Britain after the end of the transition period. Again this points to the UK looking to construct an edifice of domestic law that will allow it to avoid the full implementation of the Protocol and UK's international legal obligations.

Former Prime Minister’s Tony Blair and John Major penned a joint letter condemning the IMB and claiming that it was shaming the UK by undermining international law and the UK’s international obligations. Michael Gove’s counterpart on the Joint Committee, Maroš Šefčovič also condemned the IMB as being a threat to the Good Friday Agreement rather than a protection of it.

On 1 October, European Commission President Ursula von der Leyen announced that the EU was beginning legal proceedings against the UK through a ‘letter of formal notice’ as the IMB represented a ‘full contradiction’ of the UK’s previous commitments to the means of avoiding a hard border in Ireland via the Northern Ireland Protocol.

What this demonstrates, aside from Johnson’s crude efforts to bludgeon his way through the negotiations, is that the impact of Brexit on Northern Ireland is a secondary consideration –at best. Despite Johnston’s alleged love for ancient Latin and Greek and his penchant for ostentatious stunts, reciting from memory lines of Homer’s Iliad, he has neither memory of, nor interest in, the Good Friday Agreement or the wider peace process in Northern Ireland. He treats the peace process the way he treats the Classics, as his contemporary at Oxford Charlotte Higgins memorably put it: 'chucking around Latin and Greek tags as if they were bread rolls at a Bullingdon Club dinner.' His contempt was witnessed painfully by the Democratic Unionist Party last year when he cut them loose and signed up to the Withdrawal Agreement and Northern Ireland Protocol in the first place.

If there is sufficient common ground between the two sides to enter the 'tunnel' in the coming weeks and hammer out a trade deal, the EU may well worry that Johnson is more Brutus –than Caesar and that he will stab them in the back accordingly at the opportune moment. So even if a deal is reached, it is unlikely to be signed or ratified by the EU until the offending elements of the IMB and any subsequent legislation relating to unilateral action by the UK are removed. The Northern Ireland Protocol and Withdrawal Agreement (in their entirety) will be the foundation on which everything else is built.

Johnson’s school reports were something of a mixed bag –‘disgracefully cavalier’ and ‘gross failure of responsibility’, suggesting at least some consistency in performance since 1982 when those particular epithets were penned to his father Stanley Johnson.

His report card on Brexit has to be equally admonishing, but the consequences could, of course, be much more serious. Going back to my own former incandescent Latin teacher ––he should have realised that I just didn’t trust him, because I knew that he was going to unilaterally decide to hit me anyway,  regardless of what deal we made.  -Pacta sunt servanda

Author biography

Feargal Cochrane is a Professor Emeritus and former Vice-Chair of the PSA. He is a Senior Research Fellow at the Conflict Analysis Research Centre at the School of Politics and International Relations at the University of Kent. His latest book Breaking Peace: Brexit and Northern Ireland has recently been published. (50% discount if ordered direct through MUP before 15 October  –enter code FESTIVAL50 at the checkout.) Image credit: Number 10/Flickr.