PLEASE NOTE: All information was correct at the time of publication.
It is now 23 days away from the end of the transition period. The Brexit Withdrawal Agreement is soon set to end, and a new trade deal will govern the UK and EU’s future partnership starting from 2021. However, negotiations are still in full swing on the provisions of this trade agreement, regarding regulations on fishing and business competition in particular. As the EU Chief Negotiator Michel Barnier has set today as the deadline for the conclusion of negotiations, we review how international law has been broken, and how this has inflamed the struggle to finally complete Brexit.
The UK Government’s Internal Market Bill 2020 - what does it change exactly?
For context, the original Brexit Withdrawal Agreement came into force earlier this year in February, giving a transition period for a trade agreement to be formed, and to give time for businesses to adjust to new rules for 2021. The agreement tied a lot of loose ends on issues from protecting the rights of EU nationals in the UK, to the availability of goods in the market. But the most contentious issue has always been finding a way to avoid a ‘hard’ border in Northern Ireland because it would mean the imposition of checks on customs and people, and an undermining of peace introduced by the Good Friday Agreement.
The original agreement ushered in a new Northern Ireland protocol, where the country de facto continues to trade in the customs union for food, agricultural and manufacturing goods, but is formally not a member of it, along with the rest of the UK. This special trading agreement means that there is no physical border in the island of Ireland, but custom checks will still be enforced on goods coming between the island and Great Britain.
De Facto: This phrase is used to characterize an officer, a government, a past action, or a state of affairs that must be accepted for all practical purposes, but is illegal or illegitimate. 
So what changed? The government presented a new Internal Market Bill in September to override the Withdrawal Agreement, by radically changing the legal mechanisms which govern the deal. It does this on two frontiers; by giving power to government ministers to change rules on exports from Northern Ireland, and on state aid.
This is consequential because this “disappl(ies) the EU law concept of direct effect … in a certain tightly defined circumstance”, where ‘direct effect’ is an ECJ case law precedent where individuals can invoke a European provision before a national or EU court. By giving new power to ministers on governing the Northern Ireland protocol, the UK government is throwing out ‘direct effect’ because it is not allowing EU market rules to be enforced in Ireland as set out in the agreement, and thus the power of the EU and individuals to enforce the agreement is removed by UK ministers being given the exclusive capacity to alter export rules. In failing to enforce the agreement, the government breaks international law.
The change is not guaranteed per se to break the law, but it gives ministers the capacity to do so. As I spoke earlier about the sensitivity of the ‘hard’ border in Northern Ireland; many believe the new agreement contradicts the commitment against one laid out in the original agreement. To add insult to injury, the power of ministers is extended to “disapply(ing) previously agreed” state aid rules, which undermines the EU’s demand for a level playing field in trade after Brexit by ensuring free trade of goods is not “distorted by state subsidies”.
Where does this leave Brexit now?
The EU Commission announced at the start of October that it was suing the United Kingdom for these provisions in its Internal Markets bill. The House of Lords described Part 5 as “constitutionally dangerous”, but also sounded the alarm on the bill’s trade rules which “restrains” the powers of devolved governments.
The widespread controversy of the new bill has therefore made the task of reaching a Brexit deal more difficult between the European Union and the UK; the EU wants tougher rules on governance in case the UK decides to break its obligations again and not enforce the Withdrawal Agreement in the future. There is a worry about the progress of talks; an EU diplomat lamented that “the outcome is still uncertain”.
The other possible outcome is a ‘no-deal’, which would have huge ramifications: the UK would be thrust into WTO-governed border checks and imports/exports tariff rules; causing reduced GDP growth and higher food prices of up to 2%. This is not in the interests of either the UK or the EU. Although Minister George Eustice claimed that the UK government would “push ahead” with the controversial Internal Markets bill in the event of a ‘no-deal’, the Prime Minister has recently communicated that he would be willing to drop the controversial provisions this week.
Conclusion
The Internal Markets Bill has complicated the journey toward a Brexit deal and an end to this four-year saga. The transition period aimed to give businesses a good footing for 2021, but it is a jarring prospect that there is so much uncertainty just weeks away from the end of the year, as talks hang in the balance with issues like fisheries and competition law left unresolved. Uncertainty has characterized Brexit from beginning to end. Even though I believe it is likely the UK and EU will reach a deal, breaking international law has undermined Britain’s international standing, and left a difficult end to a tumultuous four years.
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