The related principles of “direct effect” and “supremacy” in EU law have always been particular bugbears of Eurosceptics.
The idea that EU law ultimately trumps national law (“supremacy”), or that it is possible in many areas of litigation to ask national courts directly to enforce European law or treaties as they would domestic law (“direct effect”), are caricatured as gross infringements of sovereignty; a curtailing of national courts’ God-given prerogatives.
Brexiteers are wont to proclaim these concepts and their chief enforcer – the Court of Justice of the European Union (CJEU) – instruments of “vassalage” and “servitude” from which their Brexit crusade is about to liberate them.
We need a legal safety net to protect our country against extreme or irrational interpretations of the protocol
Defenders of the EU legal order see them, on the contrary, as legal expressions of the shared political sovereignty which is the necessary foundation stone of a real union, and in the case of “supremacy”, the only means of ensuring legal consistency throughout the EU.
“We’re taking the power to disapply the EU law concept of direct effect required by article 4 [of the Withdrawal Agreement],” northern secretary Brandon Lewis told the Commons this week as he announced that the UK was prepared to assume the power to break international law to interpret the Northern Ireland Protocol as it saw fit.
“We need a legal safety net to protect our country against extreme or irrational interpretations of the protocol,” Boris Johnson argued as his government produced unprecedentedly permissive language for its own legislation – “notwithstanding inconsistency or incompatibility with international or domestic law” – language that would not only, apparently, allow the breaking of a whole range of other laws but almost certainly even rule out judicial review in the British courts.
A fine agreement
He appears assured of a comfortable majority of the increasingly subservient Tory MPs.
Downing Street, on the PM’s behalf, also bizarrely claimed that he had not really had time to understand the deal he did with Leo Varadkar last October. The whole thing was too rushed and the text should never really have been taken as the final word.
Nevertheless, the deal was signed by the UK, and both the Commons and the British electorate were told by the Tories it was a fine agreement, not perfect but the best obtainable.
Talk of either side imposing rules on the other is nonsensical
An excuse which, as the Financial Times put it with remarkable understatement, “is unlikely to impress fellow leaders”. Who could possibly negotiate with this man now?
However, in the alternative, as the lawyers say, the measures proposed, we are told, are minor and only a safety net that will probably not be necessary.
At issue are the right to give discretion to British ministers to decide what UK state aids to goods travelling to, or produced in, Northern Ireland need to be notified to the EU authorities, and the right to exempt products being sent to Great Britain from the North from export declarations.
Both issues are part of the large package of discussions on the implementation of the protocol that are to be agreed jointly at the joint committee established between London and Brussels which is co-chaired by Tory minister Michael Gove and commission vice-president Maros Sefcovic.
‘Extreme or irrational’
“Jointly” – that is the point. Anything coming out of the committee has to be agreed by both parties. Even if the EU were minded to try and force through an “extreme or irrational interpretation of the protocol” – why would it? – it could simply not do so without the consent of the UK.
Talk of either side imposing rules on the other is nonsensical. And failure to agree at the committee must be resolved, the treaty says, through an independent, binding arbitration procedure, or, if concerning a legal interpretation of EU law, by the CJEU.
Neither party is permitted under the Withdrawal Agreement unilaterally to decide how to proceed – “For any dispute between the union and the United Kingdom arising under this agreement, the union and the United Kingdom shall only have recourse to the procedures provided for in this agreement” (Article 168).
What is of as great concern to member states as the specific questions raised by the UK about the protocol – belated objections to the original agreement, disingenuously disguised as arguments about interpretation – is the repudiation of the joint approach to implementation. That is the meaning of the ideological attack on “direct effect”, the means by which the agreement has copperfastened a sharing of decisions which affect the interests of each side.
To accept the UK’s unilateral right to interpret the Withdrawal Agreement and abandon joint decision-making on implementation, no matter how limited, would undermine the essential dispute-resolution mechanism of the treaty. This is not a minor or peripheral issue, not least because UK persistence with its plans must make agreement on a trade deal impossible.
But then, unfortunately, that is apparently what London now wants.