The EU cannot sue a sovereign Britain

Brussels’ threat to take the UK to court won’t produce a legally-binding result. The outcome is down to politics

Yesterday the European Commission President Ursula von der Leyen announced she is launching legal action against the UK over the terms of the Internal Market Bill. Her complaint is that clauses in the Bill breach the Withdrawal Agreement (WA) between Britain and the EU. These clauses, which have now passed through the House of Commons as part of the Bill and await consideration by the House of Lords, confer powers on the Government to issue regulations which would override parts of the Northern Ireland Protocol which is attached to and legally forms part of the WA.

In practice, states quite often disregard treaty obligations or interpret them to their benefit. The EU itself is no stranger to this, particularly when it comes to its lack of respect for its obligations under WTO Agreements. International law is not a hard-edged code like the national laws we are familiar with in our daily lives. It is built on the custom and practice of states, and there are circumstances where it is generally recognised that states are legitimately excused from complying with treaty obligations.

There are good arguments that the Government’s clauses will not breach international law, contrary to the EU’S contentions.

First, the clauses as such do not breach anything. Even if passed into law, they simply authorise action in the future.

Second, there is a general principle of international law that treaty powers should be exercised in good faith. The EU’S blocking of reasonable “goods at risk” rules, threatening to use treaty machinery to impose tariffs on trade between Britain and Northern Ireland, could be classed as a bad faith exercise of treaty powers. The Government’s clauses, in turn, would allow Britain to protect itself from abusive exercise of treaty powers by the EU, so can be justified under international law.

Third, the Government would be acting in defence of a fundamental aspect of the United Kingdom’s constitution, which is built upon internal free trade between the different parts of the UK.

However, there is a problem. When the UK was an EU member, the European Court of Justice (ECJ) was a multi-national court in which the UK participated – helping to frame its rules, and appoint a judge and an Advocate General. After we ceased to be an EU member in February it became an entirely foreign court which owes its allegiance wholly to the EU, and none whatsoever to an ex-member state like the UK.

Under universal international treaty practice, sovereign states do not subject themselves to binding rulings by the courts of another treaty party. They insist on strictly neutral adjudication.

But not so in Theresa May’s atrociously negotiated Withdrawal Agreement. She accepted clauses giving wide ranging and long-term jurisdiction over the UK to a wholly foreign court, in complete disregard for normal international treaty practice. Boris Johnson in his renegotiation was unable to remove these clauses. This is now about to become not a chicken but rather a giant ostrich coming home to roost.

This is because the Northern Ireland

Protocol says that the ECJ and the European Commission have direct jurisdiction over the parts of the Protocol to which the Government’s clause would apply. Practising lawyers have to learn early in their careers that clients need to be told what the actual court dealing with their case will decide, rather than what we think in theory it ought to decide. We assess the chances of the ECJ accepting a UK Government argument that its clauses are justified under international law as somewhere between 0 per cent and a snowflake’s chance in a very hot place.

This means that the Government must get ready for the next step, which is how it would deal with an adverse ECJ ruling. Two things can be said. First, there is no actual means by which an ECJ judgment can be enforced against a sovereign state which defies it. Second, there are credible international law arguments that the UK’S obligations under the WA – including the egregious and onesided ECJ jurisdiction clauses – have been vitiated by the EU’S bad faith behaviour over the course of the negotiations. What happens ultimately will be decided by the political reality.