On Thursday afternoon, following a meeting between Vice-President Maroš Šefcovic and Michael Gove, Chancellor of the Duchy of Lancaster, the EU signalled that if Prime Minister Boris Johnson doesn’t comply, it will take legal action.
“The withdrawal agreement contains a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text – which the European Union will not be shy in using,” a statement from the EU Commission has said.
It said Mr Šefcovic stated, “in no uncertain terms, that the timely and full implementation of the Withdrawal Agreement, including the Protocol on Ireland / Northern Ireland” – which Mr Johnson and his government agreed to, and which the UK Houses of Parliament ratified, less than a year ago – “is a legal obligation”.
“The European Union expects the letter and spirit of this Agreement to be fully respected. Violating the terms of the Withdrawal Agreement would break international law, undermine trust and put at risk the ongoing future relationship negotiations.”
The Withdrawal Agreement entered into force on February 1st, 2020 and has legal effects under international law. S
“Since that point in time, neither the EU nor the UK can unilaterally change, clarify, amend, interpret, disregard or disapply the agreement.”
The statement also said the protocol on Ireland/ Northern Ireland is an essential part of the Withdrawal Agreement. Its aim is to protect peace and stability on the island of Ireland and was the result of long, detailed and difficult negotiations between the EU and the UK.
Mr Šefcovic, who monitors the implementation of agreements designed to avoid a border across the island of Ireland on behalf of the European Commission, said if the Bill were to be adopted, it would constitute “an extremely serious violation of the Withdrawal Agreement and of international law”.
“The EU does not accept the argument that the aim of the draft Bill is to protect the Good Friday (Belfast) Agreement. In fact, it is of the view that it does the opposite.”
UK legal position
Publishing its legal position on breaking international law on Thursday afternoon, the British government said parliament would not be acting “unconstitutionally” in enacting the UK Internal Market Bill.
“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.”
It said parliament is “sovereign as a matter of domestic law and can pass legislation which is in breach of the UK’s treaty obligations” and “would not be acting unconstitutionally in enacting such legislation”.
The statement went on: “The legislation which implements the Withdrawal Agreement, including the Northern Ireland Protocol, is expressly subject to the principle of parliamentary sovereignty.
“Parliament’s ability to pass provisions that would take precedence over the Withdrawal Agreement was expressly confirmed in section 38 of the European Union (Withdrawal Agreement) Act 2020, with specific reference to the EU law concept of ‘direct effect’.”
Earlier on Thursday,Taoiseach Micheál Martin has said he is not optimistic about the prospect of a deal being reached between the United Kingdom and the European Union and acknowledged the Government is preparing for the prospect of a no-deal Brexit.
“Trust has been eroded”, Mr Martin said on Thursday as the EU and UK prepared to hold emergency talks on the implementation of the Withdrawal Agreement, under which the UK will leave the EU.
Relations between the EU and UK plunged to their worst level since the Brexit vote in 2016 on Wednesday when the British government published intended legislation which will violate the withdrawal treaty signed by the two sides last year, throwing the future of trade talks into doubt.
There were emergency contacts between EU leaders amid the development, while Mr Martin expressed the Government’s concerns in a “forthright” telephone call with British prime minister Boris Johnson on Wednesday night.
Asked about the detail of that call on Thursday, Mr Martin told RTÉ Radio One’s Morning Ireland: “Trust has been eroded but he made it clear to me that the UK was fully committed to meeting the obligations of protecting the single market and fluidity of trade north and south.”
Asked how he thought Ireland could believe this assertion, Mr Martin said: “The legislation runs counter to that”.
The controversial legislation, the UK Internal Market Bill, gives British ministers the power to decide unilaterally how parts of the Northern Ireland protocol in the withdrawal agreement should be implemented and disapplies parts of the treaty.
When asked if he believed there would be a no-deal Brexit, Mr Martin said Ireland was “preparing for that prospect”.
Maroš Šefcovic, , has left Brussels for London for an extraordinary meeting of the joint EU-UK committee on implementation.
Mr Šefcovic, who co-chairs the committee, asked his counterpart British cabinet minister Michael Gove for an extraordinary meeting after the British government acknowledged its bill would break international law.
“The EU seeks clarifications from the UK on the full and timely implementation of the Withdrawal Agreement,” European Commission chief spokesman Eric Mamer said as he announced the meeting.
The latest round of negotiations between the EU and UK are ongoing in London this week, but the British government’s plan has been received in Brussels as a serious threat to the talks that diminishes the prospect a deal can be reached.
“This will have a deep impact and I hope it is some sort of dead cat negotiating stance rather than a real stand they will take,” Maltese Christian Democrat MEP Roberta Metsola, who coordinates the European Parliament’s justice committee, told The Irish Times.
“We are united and we are absolutely clear that whatever happens we will be united in protecting the interests of Ireland.”
Speaking on RTÉ Mr Martin said he believed there were two options, either a limited trade deal or no deal at all.
Mr Martin said he had “made it very clear in no uncertain terms” in his telephone call with Mr Johnson that Ireland’s opposition to the “unilateral” decision by the UK to breach an international treaty and its obligations.
The Taoiseach said that when a government enters into an agreement, their own parliament approves it, then that has implications for the future. Publishing a bill such as happened this week, suggested plans to break their commitment to international law.
Sinn Féin leader Mary Lou McDonald told the programme that the principles by which agreements are made matter and have to be honoured.
It was not acceptable for the UK to depart from the withdrawal agreement in such a dramatic and brazen way. To do so will have a huge impact on relations between the two islands and north and south.
Ms McDonald said that comments by the UK’s health secretary Matt Hancock demonstrated again “that the Tories regard Ireland as little more than a pawn.” Mr Hancock’s claim that the new legislation would strengthen peace was “astonishing” she said. The UK had broken its word and violated an undertaking made only last year.
Ireland needed to rely on all its capacity, the international rule of law and contacts in the EU and the US.