September 22, 2020
BREXIT UPDATE 60: The Internal Market Bill: the Second Reading
Last Monday (September 14), the Internal Market Bill underwent its Second Reading (which is really its first stage; the First Reading is just its brief formal introduction to the House).
In his opening speech, Johnson outlined the “Schrodinger’s Cat Backstop” that he had agreed with the EU last October. According to this deal, Northern Ireland is in the EU’s Customs Union and the UK’s Customs Union at the same time. Northern Ireland is legally part of the UK’s Customs Union, but practically and operationally it is part of the EU’s Customs Union (see Brexit Update 47).
Johnson pointed out that, because Northern Ireland is legally part of the UK’s Customs Union, Northern Ireland will benefit from “the free trade deals with other countries which we are now beginning to strike”. He went on to explain that “we agreed to conduct some light touch processes on goods passing between Great Britain and Northern Ireland in case they were transferred to the EU”. He elucidated these “light touch processes” by explaining that, under the terms of the Protocol, if the final destination of goods going from Great Britain (ie England, Scotland and Wales) to Northern Ireland is Northern Ireland, the goods will not require tariffs; but if the goods are going on to Ireland and further into the EU, they will require tariffs, which the UK will collect on behalf of the EU (see Brexit Update 47).
But Johnson then goes on to accuse the EU of threatening to act in bad faith in relation to the Protocol:
“the details of these intricate arrangements and the obvious tensions about provisions can only be resolved with a basic minimum of common sense and goodwill from all sides. I regret to have to tell the House that in recent months the EU has suggested that it is ready to go to extreme and unreasonable lengths using the Northern Ireland Protocol in a way that goes well beyond common sense, simply to exert leverage against the UK in our negotiations for a free trade agreement”.
These “extreme and unreasonable lengths” include, he explains, a threat to
“refuse to list the UK’s food and agricultural products for sale anywhere in the EU….under the Protocol, this creates an instant and automatic prohibition of the transfer of our animal products from Great Britain to Northern Ireland”.
And Johnson expresses the fear that the EU might interpret the Protocol to mean that all goods going from Great Britain to Northern Ireland, whatever their final destination, would require tariffs: “I’m afraid some in the EU are now relying on legal defaults to argue that every good is ‘at risk’ [ie at risk of going into Ireland or further into the EU] and therefore liable for tariffs”.
Johnson emphasises that he hopes the EU’s alleged threats will never materialise; he is, he insists, putting forward the Bill as a pre-emptive measure, an “insurance policy” – in fact (though he doesn’t use the word) a “backstop” — just in case they do become reality, though he hopes they never will:
“I have absolutely no desire to use these measures . They are an insurance policy and, if we reach agreement with our European friends – which I still believe is possible – they will never be invoked.”
So essentially, the Bill, if it passes, will be a domestic law that breaks international law as an “insurance policy”, just in case the EU in the future decides to break international law.
Johnson attempts further to placate the Bill’s opponents by promising that, if the EU’s alleged threats ever materialise, government ministers will vote on a “statutory instrument” before the measures contained in the Bill are implemented.
Also, in what is a tacit admission that the Protocol itself contains means of legal redress for possible violations – an admission that actually undermines his whole case for breaking international law – Johnson adds: “we will simultaneously pursue every possible redress under international law, as provided for in the Protocol.”
The new Labour leader, Keir Starmer, is self-isolating after a member of his family displayed COVID-19 symptoms. So his place was taken by a former Labour leader, Ed Miliband, who has returned to the Shadow Cabinet as Shadow Business Secretary.
Miliband argued that the Bill threatens peace in Northern Ireland and risks a No Deal Brexit. In domestic terms, Miliband pointed out that the Bill undermines the ability of the regional governments to set their own standards, by forcing each regional government to accept goods and services from other parts of the UK, whether these goods and services comply with local standards or not.
In international terms, in contrast to Johnson’s nationalistic outlook, Miliband adopted an internationalist position on national identity, concentrating on Britain’s reputation and role in the world:
“If there is one thing we are known for around the world, it is the rule of law. The country of the Magna Carta. The country that is known for having the mother of all parliaments. The country that out of the darkness of the second world war helped found the United Nations.”
Miliband pointed out that the Protocol itself contains legal safeguards that could be used legally, upholding the Protocol, not overturning it (as I commented above, Johnson himself tacitly admitted this):
“If the threat materialised, it is not overturning the protocol that is the right thing to do; it is upholding the protocol….But do not take my word for it….take the word of the former Attorney General [ie Sir Geoffrey Cox] – who definitely read the Protocol – who wrote this morning: ‘there are clear and lawful responses available to Her Majesty’s government’”.
Miliband also demolished Johnson by pointing out a bewildering discrepancy – which had puzzled me while writing Brexit Update 59. In his recent article in the Daily Telegraph (see Brexit Update 59) and in his House of Commons opening speech, the threats that Johnson alleges the EU is making refer only to one direction of travel – from Great Britain to Northern Ireland. Yet the controversial clause 42 in the Internal Market Bill refers only to the other direction of travel: Northern Ireland to Great Britain. So in what way does the Bill forestall the EU’s threats? Miliband asked Johnson this question:
“this Bill does precisely nothing to address the issue of the transport of food from Great Britain to Northern Ireland. It is about two issues where the Government are going to override international law: exit declarations, Northern Ireland to GB, and the definition of state aid relating to Northern Ireland. If the Prime Minister wants to tell us that there is another part of the Bill that I have not noticed that will deal with this supposed threat of blockade, I will very happily give way to him [ie Miliband will sit down and allow Johnson to interrupt him]. I am sure he has read it; I am sure he knows it in detail, because he is a details man. Come on, tell us: what clause protects against the threat, which he says he is worried about, to GB-to-Northern Ireland exports?”
Johnson sat in silence; Miliband continued his mockery: “There you have it: he didn’t read the protocol, he hasn’t read the Bill, he doesn’t know his stuff.” And he ended by pointing out the irony that Johnson is now saying his “fantastic” and “oven-ready” deal is flawed and needs changing:
“The Prime Minister is coming to the House to tell us today that his flagship achievement—the deal he told us was a triumph, the deal he said was oven-ready, the deal on which he fought and won the general election—is now contradictory and ambiguous….It is his mess. It is his failure.”
Johnson made no response to Miliband’s speech; Johnson was clearly unable to name any clause in the Bill that protects against the alleged threat from the EU. Shortly afterwards, he left the Debating Chamber. But, even though Miliband had clearly demolished Johnson, the government majority in the House of Commons is so massive that a Labour amendment to scrap the Internal Market Bill, on the grounds that it breaks international law, failed: the Ayes: 214: the Noes: 349. And the Bill passed its Second Reading, with the Ayes: 340; the Noes: 263. There had been some hopes of a Tory backbencher rebellion; in the event, only two Tory MPs voted against, though 30 abstained (in these days of COVID, however, this may not have been only for political reasons).
The big question is whether the Bill can pass the House of Lords, where the government does not have a majority and where many peers are known to be outraged by the Bill’s violation of international law. On Thursday (September 17), the government, in an attempt to forestall a threatened Commons amendment, made a limited climb-down, issuing an amendment that, if the Bill is passed and becomes an Act, will provide what is called a “parliamentary lock” – ie allowing MPs, not just government ministers, to vote on the implementation of the Act. But commentators think this will not be enough to placate the Lords.
To return to the discrepancy between the directions of travel in the Bill and in Johnson’s speech: why does the Bill only mention Northern Ireland to Great Britain, not Great Britain to Northern Ireland? The reason seems to be that, during the General Election campaign last December, one of Johnson’s election pledges in the Conservative Manifesto was that Northern Ireland “would have unfettered access to the rest of the UK”. This appeared to go against the Protocol, which includes exit declarations on goods going from Northern Ireland to Great Britain. Clause 42 in the Bill that gives UK government ministers the power to remove exit declarations on goods going from NI to GB seems to be sending the message that Johnson is very concerned to honour his election pledges to the British electorate which voted him into office with a large majority, but doesn’t care about breaking international law. The general aim seems to be to assert UK sovereignty over Northern Ireland.
Another reason why only the NI-GB direction of travel was included in the Bill is that Johnson is trying to use this to force the Lords into voting for the Bill. According to a convention known as the Salisbury-Addison convention, the Lords do not vote against a Bill that involves the fulfilment of an election pledge. Johnson’s spokesman has said:
“We would expect the Lords to abide by the Salisbury Convention. Guaranteeing the full economic benefit of leaving the EU to all parts of the United Kingdom and ensuring Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK were clear Conservative manifesto commitments which this legislation delivers.”
However, ITV’s analyst Robert Peston has written in an article in the Spectator:
“A senior Tory tells me the House of Lords will turn the Salisbury-Addison convention….on its head….He points out that the Tory manifesto describes Boris Johnson’s renegotiated Withdrawal Agreement as ‘a great deal’ and ‘signed, sealed and delivered’. There were no qualifications. So their lordships could rationally argue that, by rejecting Johnson’s attempt to modify the WA….they would be compelling him to honour the promise he made to the electorate. Far from breaching Salisbury-Addison, they would be embracing its inner logic.”
The Bill is at present undergoing four days of “Committee stage”, during which amendments are put forward, debated and voted on; this is followed by the “Reports stage”. The Bill’s Third Reading should be at the end of September, after which, if the Bill passes (which is very likely), it will go to the Lords. Robert Peston concludes his Spectator article: “There is going to be one almighty battle between the government and the Lords, and who knows with what dramatic constitutional consequences”. 
 See Chris Morris: Reality Check: