Brexit round-up – 02/10/20

House of Commons Library publishes briefing on principles of international law

The House of Commons Library has published a research briefing which gives an overview of principles of international law referencing that the UK has a dualist approach to international law whereby parliament is sovereign and the provisions of an international treaty (such as the withdrawal agreement) can only have effect in domestic law if they are written into or incorporated by domestic legislation. Parliament can in theory make any law it wishes domestically and if this breaches an international obligation, it might still be lawful in domestic law. For example, the government’s legal position on the United Kingdom Internal Market Bill 2019-21 stated that Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UK’s treaty obligations. In international law, the UK’s internal principle of parliamentary sovereignty has no bearing on the international legal effect of the UK’s international obligations. No rule of a state’s internal law can be used to justify a breach of an international obligation (Article 27, Vienna Convention on the Law of Treaties (VCLT)). If the domestic effect of an Act of Parliament breaches an international obligation, it might be lawful in domestic law, but it would remain unlawful in international law. The UK is still bound by obligations it has accepted on the international level. The VCLT applies to treaties between states. The EU is not a state, and is an international organisation created by international law through its founding Treaties. However, large parts of the VCLT reflect customary international law on treaties, which means that the EU is also bound by these principles, and the EU courts have taken such principles into account. As part of customary international law, these principles also apply to states who did not originally adopt the VCLT. It also notes that customary international law has been accepted by UK courts as being one of the sources of the common law.

For more information please click here.

Internal Markets Bill passes next stage

The Internal Markets Bill has now passed through the House of Commons by 340 votes to 256 and will now go to the House of Lords. Amid concerns that the move would break international law, ministers agreed to give Parliament a say before ever using the powers they would be granted by the Internal Market Bill. The Internal Market Bill is designed to enable goods and services to flow freely across England, Scotland, Wales and Northern Ireland after 1 January. However, it has faced backlash from former prime ministers as it gives the government the power to change aspects of the EU withdrawal agreement, a legally binding deal governing the terms of Brexit made earlier this year. The Bill sets out rules for the operation of the UK internal market – trade between England, Scotland, Wales and Northern Ireland – after the end of the Brexit transition period in January. It proposes that there be no new checks on goods moving from Northern Ireland to Great Britain, it gives UK ministers powers to modify or “disapply” rules relating to the movement of goods that will come into force from 1 January if the UK and EU are unable to reach an alternative agreement through a trade deal and it gives them powers to override previously agreed obligations on state aid.

For more information please click here.

If you have any questions about any of the issues which are raised, or would like to discuss your own organisation’s options during the Brexit process, please do not hesitate to get in touch.