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I’ve been researching this issue of the UK breaking international law and, without coming down on either side, it’s fascinating and far more complicated than we may think.
Apparently, during trade deal negotiations, the EU hinted at their interpretation of the withdrawal agreement meaning they could insist on a lot of checks between GB and NI. The UK didn’t think the agreement said this. However, if true, it gave the EU leverage.
The UK therefore decided to make a national law that would explicitly prevent this. But why did they not just say ‘this is not our interpretation of the withdrawal agreement’ at the future point if and when the EU demanded the checks?
And why did a minister actually admit to the Commons that the national law would break international law? Surely, that’s absurdly bad politics?
Well, you have to consider UK courts. In the event of the EU trying to impose these checks, it’s possible the UK courts would sided with them and forced the UK government to comply.
The point of the minister admitting the new national law would break international law was to make it explicit to the courts that, in the event of a dispute, it was the clearly expressed will of parliament to break international law rather than accept these checks.
This leaves the courts no wiggle room and they would have to back the government. Which tells you a lot about the relationship between the government and the courts.
Basically, the UK government doesn’t trust the UK courts to make decisions in the UK’s interests when interpreting ambiguous treaty clauses. Which is quite extraordinary.
