Brexit. Why do Brits want Out of the EU?

A behind–the–scenes rift has emerged between the government’s top legal advisers over the legality of the decision to bring legislation that overrides the EU withdrawal agreement.

Legal advice contained in a three–page letter marked “official – sensitive”, seen by the Guardian, summarises the legal opinions of the government’s three law officers, whose role includes ensuring ministers act in accordance with the law.

The letter appears to show that Richard Keen, the advocate general for Scotland, advised that ministers would be breaching the ministerial code if they defied international law.

The attorney general, Suella Braverman, and solicitor general, Michael Ellis, disagreed with their fellow Conservative minister, arguing the code applies only to UK law, according to the letter.

The advice of all three law officers was summarised in the letter, which was sent by the attorney general’s office to a senior Whitehall official on 2 September.

It states that all three law officers agreed that the UK internal market bill, which seeks to override portions of the Northern Ireland protocol in the event of there being no trade deal with the EU, would amount to a “clear breach” of the withdrawal agreement and international law.

Their language appears stronger than that used by the Northern Ireland secretary, Brandon Lewis, when he told MPs this week that the government’s legislation would break international law “in a very specific and limited way”.
[...]
On Thursday, two hours after the Guardian contacted the government for comment, the Cabinet Office posted online what it described as its “legal position” on the internal market bill and Northern Ireland protocol. The document summarised some of the issues covered in the 2 September letter, but did not disclose the differences between Lord Keen and the other law officers over the ministerial code.
[...]
The letter was addressed to a senior official in the Government legal department, the head of which, Sir Jonathan Jones, resigned this week amid speculation he objected to the course of action being pursued by Downing Street.
[...]
Elsewhere in the letter, the law officers agree that “legislation to remove the possibility of challenge before the domestic courts, or prevent the government from complying with the rulings of EU courts, contrary to article 4 of the withdrawal agreement would be a clear breach of the withdrawal agreement and of the UK’s international law duty to act in good faith with respect to its treaty obligations”.

Explaining how such a breach could be legally justified, the letter explains: “All law officers agree that it is an established principle of international law that a state, acting through its executive government, is obliged to discharge its treaty obligations in good faith. This is, and ought to remain, the key principle in informing the UK’s approach to international relations.

“However in the difficult circumstances in which we find ourselves, the attorney general and solicitor general consider it is important to remember that an established principle of international law is subordinate to the much more fundamental principle of parliamentary sovereignty.”
... ... ...

This is the Government’s legal position on the UK Internal Market Bill (“the Bill”) which was introduced on 9 September.

Published 10 September 2020
From:
Cabinet Office

Plan has enraged EU and many Tories but sources say No 10 thinks it will move talks along

Britain’s Brexit negotiators believe Downing Street’s plan to break international law, pushing the trade and security negotiations to the brink, may have helped reboot the talks by offering Brussels a reality check about the looming danger of a no-deal outcome.

The publication of the internal market bill on Wednesday, under which key parts of the withdrawal agreement agreed last year would be negated, has enraged the EU and prompted an internal rebellion within the Conservative party.

Brussels has set Boris Johnson a three- week deadline to ditch his plans or face financial and trade sanctions, with the clear suggestion that negotiations over a future relationship will fail unless the most contentious parts of the proposed legislation are removed.

A Tory rebellion against Johnson’s bill is gathering pace: an amendment to the internal market bill by the former minister Bob Neill would give parliament a veto on overriding the UK-EU divorce deal.

There was also excoriating criticism of the bill by the former Tory leader and Brexit supporter Michael Howard, who predicted many of his colleagues would oppose it and said he would be surprised if it got through the House of Lords, where the government lacks a majority.

But Downing Street believes the row with the EU may ultimately prove to be a welcome disruption to the talks, which had been in deadlock throughout the summer over the most thorny issues of the government’s future domestic subsidy regime and access to British waters for EU fishing fleets.

The British negotiating team, led by David Frost, believes EU capitals are freshly focused on the trade and security negotiations, with Brussels clear-sighted on the risk of the talks collapsing.

Negotiations between the teams led by Frost and the EU’s chief negotiator, Michel Barnier, are to continue next week with both sides in agreement that a deal must be ready to be endorsed by EU leaders by 15 October.

“Talks this week have been relatively more constructive than you might expect, but ultimately progress will be determined by whether we get more realism from them on the key areas of divergence,” said one senior UK negotiating official.

Progress was claimed to have been achieved after the EU was said to have dropped its policy of “parallelism”, or the insistence that they had to make progress on all elements of talks, ranging from fundamental stumbling blocks of state aid and fisheries to the easier issues.

Downing Street’s view of a fresh impetus to the negotiation was not echoed by Barnier in a statement issued at the end of the eighth week of negotiations. He said Brussels had offered to accommodate British red-lines in the negotiation, including a major windfall for British fishing boats and the acceptance that the UK would not follow EU law, but Frost had “not engaged in a reciprocal way on fundamental EU principles and interests”.

One senior EU source said the week’s talks had been “better than you might expect” but that Brussels was simply focused on carrying on the negotiations until it was clear there was no chance of a deal. “We don’t want to get caught out – there isn’t time to waste so this is two sets of civil servants doing their jobs,” said a senior EU diplomat.

British sources close to the negotiations said they did not recognise Barnier’s account of the latest talks. “We’ve been engaged in talks pretty consistently for many months now,” one UK source said. “The problem is the EU seems to define engagement as accepting large elements of their position. Rather than being engaged in discussions and that’s one of the problems that we’ll need to overcome.”

The government on Wednesday published a thin document on its plans for subsidy control in which it pledged not to return to the bailouts for failing companies that were seen in the 1970s. The UK said it would consult over how to control subsidies in the “coming months”.

Barnier said the proposal did not offer the assurance the EU needed and fell “significantly short of the commitments made in the political declaration”, in reference to the paper agreed by Johnson and EU leaders last year about the outline of a deal.

A UK source said: “We believe statements that we put out on Wednesday constitute a very clear statement of the direction, about domestic policy and how [it] interacts with these negotiations while still giving room to have a constructive discussion on the subject. And we’re sorry that it wasn’t taken in that spirit.”

Howard said it was “a very sad day last week” when the Northern Ireland secretary, Brandon Lewis, admitted that amending the UK’s Brexit deal would break international law.

“I never thought it was a thing I’d hear a British minister, far less a Conservative minister, say, which is that the government was going to invite parliament to act in breach of international law,” Howard told Sky News. “We have a reputation for probity, for upholding the rule of law, and it’s a reputation that is very precious and ought to be safeguarded, and I am afraid it was severely damaged by what was said on Tuesday and by the bill which is currently before parliament.”

Momentum gathered pace on Friday as Neill’s initiative, which is being backed by the former ministers Damian Green Oliver Heald, was also signed by Simon Hoare, the chair of the Northern Ireland affairs select committee.

Hoare tweeted that US figures “had a point” in warning that potential destabilisation of the Good Friday agreement could result both in a no-deal Brexit and no trade deal with the US.

Dublin minister says UK plan to undo Brexit deal would have ‘unthinkable’ consequences

The Irish government has accused Boris Johnson of trying to sabotage the Northern Ireland peace process with a “unilateral provocative act” based on spurious claims about the Good Friday agreement.

As Brexit talks hang by a thread following the UK’s threat to renege on parts of the withdrawal agreement, Thomas Byrne, Ireland’s European affairs minister, branded the UK government’s claims that its move was to protect the peace process as “completely false”.

He said what would happen as a result of this bill becoming law was “completely unthinkable”.

Relations with the EU have plunged to a new low in the last 24 hours after the UK rejected Brussels demands to withdraw the parts of the internal markets bill that would give the government power to override the Northern Ireland protocol.

The move has also soured Anglo-Irish relations, with no warning of the plan to undo the Brexit arrangements on Northern Ireland by one of the co-guarantors of the Good Friday agreement.

Byrne told BBC’s Radio 4 Today programme: “It’s a totally unacceptable way to do business, and we would value very close relations with Britain. In fact, good relations with Britain are absolutely essential for the peace process to work, as well as at the lack of a hard border, and good relations within the north and north/south.

“This was a unilateral, provocative act, that is … uniquely unprecedented. The statement that this is to help the Good Friday agreement is completely false and is completely wrong.

“The constitutional status of Northern Ireland is, first of all, protected in the Good Friday agreement, is protected and mentioned again in the protocol which Boris Johnson agreed less than a year ago.

“The entire premise of the Good Friday agreement is, in fact, agreement between the peoples of the north, the north and south and between Britain and Ireland. So you cannot then allow one side, in any aspect of the complicated relationships on the two islands, decided to change things unilaterally, and that’s not unique to our situation.

“What is not expected is one side of that [peace agreement] simply pulls the plug and says no, we’re going to change something without even consulting.”

Byrne called on Johnson to think again and allow “common sense to prevail” and realise he is threatening a peace process that took decades of hard work to achieve.

He said: “Boris Johnson agreed this agreement. He ran the general election on the basis of support this agreement, and this is absolutely unprecedented. To then turn around months later and say, well actually we didn’t realise that this was like this?

“Everybody knew the complexities of the island of Ireland, and everybody knew this agreement would be to everybody’s benefit both in the island of Ireland and in Great Britain.”

Trade talks between the EU and the UK will continue next week but the outlook remains bleak, with relations soured with the EU and key allies.

The German ambassador to the UK tweeted on Thursday night that he had not in his 30 years as a diplomat “experienced such a fast, intentional and profound deterioration of a negotiation”.

The move has also soured Anglo-Irish relations, with no warning of the plan to undo the Brexit arrangements on Northern Ireland by one of the co-guarantors of the Good Friday agreement.

Byrne told BBC’s Radio 4 Today programme: “It’s a totally unacceptable way to do business, and we would value very close relations with Britain. In fact, good relations with Britain are absolutely essential for the peace process to work, as well as at the lack of a hard border, and good relations within the north and north/south.

“This was a unilateral, provocative act, that is … uniquely unprecedented. The statement that this is to help the Good Friday agreement is completely false and is completely wrong.

“The constitutional status of Northern Ireland is, first of all, protected in the Good Friday agreement, is protected and mentioned again in the protocol which Boris Johnson agreed less than a year ago.

“The entire premise of the Good Friday agreement is, in fact, agreement between the peoples of the north, the north and south and between Britain and Ireland. So you cannot then allow one side, in any aspect of the complicated relationships on the two islands, decided to change things unilaterally, and that’s not unique to our situation.

“What is not expected is one side of that [peace agreement] simply pulls the plug and says no, we’re going to change something without even consulting.”

Byrne called on Johnson to think again and allow “common sense to prevail” and realise he is threatening a peace process that took decades of hard work to achieve.

He said: “Boris Johnson agreed this agreement. He ran the general election on the basis of support this agreement, and this is absolutely unprecedented. To then turn around months later and say, well actually we didn’t realise that this was like this?

“Everybody knew the complexities of the island of Ireland, and everybody knew this agreement would be to everybody’s benefit both in the island of Ireland and in Great Britain.”

Trade talks between the EU and the UK will continue next week but the outlook remains bleak, with relations soured with the EU and key allies.

The German ambassador to the UK tweeted on Thursday night that he had not in his 30 years as a diplomat “experienced such a fast, intentional and profound deterioration of a negotiation”.

PM claims internal market bill is needed to counter EU ‘threats’ to put a blockade in Irish Sea

Boris Johnson has said his controversial legislation to override parts of his Brexit deal is needed to end EU threats to install a “blockade” in the Irish Sea.

The prime minister said Brussels could “carve up our country” and “seriously endanger peace and stability” in Northern Ireland if Conservative MPs rebel to block the internal market bill.

Johnson is working to quell a plan to amend the legislation from senior Tories who are angry that it could break international law by overriding the withdrawal agreement signed with the EU last year.

The EU has said the move is a serious breach of trust and has threatened to take legal action if Johnson does not alter the bill by the end of the month. But the prime minister has argued that it is “crucial for peace and for the union itself” and said voting it down would reduce the chances of a trade deal with the EU.

Writing in the Telegraph, Johnson said: “We are now hearing that unless we agree to the EU’s terms, the EU will use an extreme interpretation of the Northern Ireland protocol to impose a full-scale trade border down the Irish Sea.

“We are being told that the EU will not only impose tariffs on goods moving from Great Britain to Northern Ireland, but that they might actually stop the transport of food products from GB to NI.

“I have to say that we never seriously believed that the EU would be willing to use a treaty, negotiated in good faith, to blockade one part of the UK, to cut it off; or that they would actually threaten to destroy the economic and territorial integrity of the UK.”

He said “in the last few weeks” he learned his negotiators had discovered there “may be a serious misunderstanding about the terms” of the withdrawal agreement he signed in October.

Johnson argued it was agreed during “torrid” days with the deadline for a deal fast approaching while “negotiating with one hand tied behind our back” because parliament blocked a no-deal Brexit.

“If we fail to pass this bill, or if we weaken its protections, then we will in fact reduce the chances of getting that Canada-style deal,” he wrote,

“Let’s remove this danger to the very fabric of the United Kingdom. Let’s make the EU take their threats off the table. And let’s get this bill through, back up our negotiators, and protect our country.”

Both Ireland and the EU, however, have warned that Johnson’s plans pose a serious risk to the peace process rather than protecting the Good Friday agreement.

Justice Secretary Robert Buckland has defended plans to potentially override the EU Withdrawal Agreement as an emergency Brexit "insurance policy".

He told the BBC he hoped powers being sought by ministers in the Internal Markets Bill would never be needed, as a solution could be found with the EU.

He said he would resign if the UK ended up breaking international law "in a way I find unacceptable".

But he made clear he did "not believe we will get to that stage".

Ireland’s foreign minister has accused Boris Johnson of “inflammatory language” and jeopardising Brexit trade negotiations after Boris Johnson claimed the EU was threatening the integrity of the UK.

In response to the prime minister’s contentious proposals to override aspects over the Brexit agreement, Simon Coveney also urged the UK government to “behave as modern democracies should” and honour international agreements it had signed.

The comments came after Mr Johnson used a newspaper article to double down on plans to introduce legislation to disapply key parts of the EU withdrawal agreement if negotiations with the bloc over a future trading agreement collapse.

Brandon Lewis, the Northern Ireland secretary, told MPs last week the proposals, if passed by Parliament, would breach international law in a “limited and specific” way – an extraordinary admission that provoked outrage from Brussels.

Attempting to dissuade potential Conservative rebels from scuppering his plans, Mr Johnson claimed over the weekend the EU could “carve up our country” unless MPs pass the Bill that will be introduced in the Commons tomorrow.

He added: “I have to say that we never seriously believed that the EU would be willing to use a treaty, negotiated in good faith, to blockade one part of the UK, to cut it off, or that they would actually threaten to destroy the economic and territorial integrity of the UK.”

Responding to remarks on the BBC’s Andrew Marr programme, Mr Coveney said there was only one side in the negotiations threatening to “break its word” and international law.

“The British government is behaving in an extraordinary way. The British people need to know that because outside of Britain where this issue is being discussed now, the reputation of the UK and Britain as a trusted negotiator on important issues like this is being damaged in a very serious way.”

He later added: “There is no blockade proposed. That is the kind of inflammatory language coming from Number 10 which is spin and not the truth.”

In a separate interview, the Irish justice minister Helen McEntee, claimed the unilateral action to introduce the controversial legislation had “damaged trust” between the EU and the UK. “We’re in a very difficult space,” she said.

Asked on Sky News’s Sophy Ridge programme whether the bloc would look at taking legal action or consider sanctions against the UK, Ms McEntee added: “This is something that could happen.

“I think other implications as I’ve mentioned – the overall trade agreement that is certainly at risk if this is implemented.”

On Sunday, Michel Barnier, the EU’s chief negotiator, also said the Northern Ireland protocol in the EU withdrawal agreement was “not a threat to the integrity of the UK”.

“We agreed this delicate compromise with Boris Johnson & his gov in order to protect peace & stability on island of Ireland. We could not have been clearer about the consequences of Brexit.

Mr Barnier also said “sticking to facts is also essential” and insisted the EU is not refusing to list the UK as a third country for food imports – as claimed by the prime minister in his article over the weekend.

“To be listed, we need to know in full what a country’s rules are,” he added. “The same objective process applies to all listed countries.”

However, in a series of posts on Twitter, the UK’s chief negotiator Sir David Frost responded to his counterpart, insisting the EU had made “clear to us in the current talks there is no guarantee of listing us”.

He went on: “I am afraid it has also been said to us explicitly in these talks that if we are not listed we will not be able to move food to Northern Ireland. The EU’s position is that listing is needed for Great Britain only, not Northern Ireland.

“So if GB were not listed, it would be automatically illegal for NI to import food products from GB. I hope the EU will yet think better of this. It obviously makes it no easier to negotiate a free trade agreement and the solid future relationship we all want.”

Automotive trade bodies predict wave of job cuts if UK crashes out of the single market

British and European motor manufacturers have warned of “catastrophic” £100bn losses in the industry over the next five years if a Brexit trade deal is not struck.

As trade talks hang by a thread in the face of a political showdown over the EU withdrawal agreement, sector leaders from across Europe predicted a wave of job losses in both factories and their suppliers if the UK crashes out of the single market.

In a joint statement signed by 23 automotive trade associations, they say the calculated €110bn (£100bn) impact comes on top of the estimated €100bn cost of the Covid pandemic.

“These figures paint a bleak picture of the devastation that would follow a no-deal Brexit. The shock of tariffs and other trade barriers would compound the damage already dealt by a global pandemic and recession, putting businesses and livelihoods at risk,” said Mike Hawes, the chief executive of the Society of Motor Manufacturers and Traders in the UK.

Hildegard Müller, the president of the German automotive association, the VDA, said some businesses would be at risk if cross-border trade was hit by tariffs.

“This would jeopardise closely linked value chains and possibly make them unprofitable. Our member companies have more than 100 production sites in the United Kingdom. We hope that the EU and the UK will continue their close partnership – with a comprehensive free trade agreement.”

The head of the European Automobile Manufacturers Association, Eric-Mark Huitema, said it “absolutely must have an ambitious EU-UK trade agreement in place by January”.

Over the past two years, the auto industry has consistently warned of the deep cost of no deal on the car industry, which employs 14.6 million people directly and indirectly in factories, component supplies, engineering, design and marketing and sales.

They hope this latest warning from the combined forces of leaders in both the EU and the UK will help both sides see past their political differences and strike a trade deal.

Brexit talks are continuing this week, but on Sunday, Ireland’s foreign affairs minister, Simon Coveney, said it would be difficult to conclude a trade deal if the British government passed legislation allowing it to renege on parts of the withdrawal agreement.

The motor industry fears a collapse in talks would mean punitive tariffs – 10% on car sales and 22% on vans and trucks, but also hit jobs and sales revenues that underpins more than €60bn investment in technical innovation and research every year, which Sigrid de Vries, the secretary general of the European Association of Automotive Suppliers (CLEPA) said makes it “the EU’s largest private R&D investor”.

Its latest calculations suggest production levels would fall by 3m units in the UK and the EU over the next five years in a no-deal scenario. This is on top of a 3.6m reduction in the annual 18.6m units produced a year because of coronavirus.

The scale of disruption predicted to hit UK borders post-Brexit is revealed in confidential government documents warning of queues of 7,000 lorries in Kent, and two-day delays to cross into the EU.

A “reasonable worst-case scenario” report, drawn up by the Border and Protocol Delivery Group, forecasts that thousands of passengers could also be forced to wait an extra two hours for Eurostar trains.



Dated last week and seen by the Guardian, the 46-page document marked “official – sensitive” says that a core IT system for hauliers is not expected to be tested publicly until the end of November.

With the UK leaving the customs union and the single market on 1 January, it means that border disruption could ensue whether or not the UK secures a trade deal with the EU.



The document was presented to a meeting of the XO (exit operations) committee chaired by Michael Gove for decisions on the next stages of development in the border operating model, the goods vehicle management system and so-called “smart freight” software designed to regulate the flow of traffic into Kent and guard against congestion.

It notes that preparations for new post-Brexit border operations are all-consuming, affecting 26 government departments using 100 IT systems. Some departments legally cannot share data with others, with legislation required to ensure information flow, the report says.

On road haulage, it forecasts that 50-70% of large businesses will be ready for cross-border trade. When it comes to smaller businesses, it assumes that as few as 20-40% of small- to medium-sized businesses will know what to do from 1 January.

In the reasonable worst-case scenario, in which 30-60% of lorries carrying freight are ready, Kent would be plunged into chaos, bringing disruption to businesses across the country.

The rule of law is “under attack” from Boris Johnson’s internal markets plan for Brexit, according to the Law Society. The solicitors’ body said “we have a choice about what sort of country we want to be and what we want to be known for around the world”.

The controversial proposal to tear up part of the Brexit treaty with the European Union passed its second reading in the Commons on Monday by a majority of 77 despite a rebellion among Tory MPs.

"according to the law society"

A more debauched and hungry band of savages would be harder to find.

Downing Street has just issued this statement. It is a joint statement from No 10, the Conservative MP Sir Bob Neill who chairs of the Commons justice committee, and Damian Green, the Conservative MP who chairs the One Nation caucus.

It confirms that the government has accepted a compromise on the internal market bill. The statement says:

"Following constructive talks over the last few days, the government has agreed to table an amendment for committee stage. This amendment will require the House of Commons to vote for a motion before a minister can use the ‘notwithstanding’ powers contained in the UK.

The internal market bill was designed to give MPs and Peers a vote on the use of these powers via statutory instrument. But following talks, it is agreed that the parliamentary procedure suggested by some colleagues provides a clearer, more explicit democratic mandate for the use of these powers, and also provides more legal certainty.

The government will table another amendment which sets clear limits on the scope and timeliness of judicial review into the exercise of these powers. This will provide people and businesses with the certainty that they need.

We welcome the way the parliamentary party has come together on these issue. There is near-unanimous agreement that the Government must be able to use these powers as a final resort, that there must be legal certainty, and that no further amendments are required on these powers.
"
The bill gives ministers the power to override parts of the withdrawal agreement. The original plan was for MPs to use these powers under a conventional secondary legislation procedure that would have meant MPs would have only had a vote retrospectively - after the powers had been used. Now the bill will be changed so MPs have to vote first.

For many Tory MPs unhappy about the bill, this will be enough. But there is an argument that the very act of passing the bill would break international law, regardless of whether these powers ever get used, and some Conservatives may continue to oppose it on those grounds.

Those MPs concerned about the bill are also likely to be worried by the revelation in this statement that the government will add another amendment trying to protect it from judicial review.