The latest Brexit dispute could end up in the European court of justice if it breaches the withdrawal agreement signed by Boris Johnson in January, legal experts have warned. A dispute would trigger a specific legal process ending in the Luxembourg court – and if the UK was found to have breached the international treaty it signed in January, the EU has powers to punish the country. The court can impose a heavy fine on the UK, suspend part of the withdrawal agreement, launch trade wars and impose tariffs or even sanctions on British exports. “Because the agreement is an international treaty, the EU could bring proceedings against the UK, under the dispute resolution mechanism of the agreement,” said Catherine Barnard, a European law professor at Cambridge University. The Brexit process was thrown into jeopardy on Monday when it emerged the government was planning to table proposals on Wednesday to give unilateral legal power to ministers to oversee elements of the Northern Ireland protocol. The disclosure provoked widespread disquiet because the agreement is already legally binding due to the so-called “direct effect” of EU law in the specific parts of the settlement relating to just two areas – Northern Ireland and citizens’ rights.
In the event of a dispute a process would be triggered involving an initial three-month arbitration to try to resolve the matter. “If the arbitration raises issues of EU law, which this absolutely seems to do, then it’s up to the court of justice,” said Barnard. A UK official close to the Brexit talks played down the significance of the move, claiming it was necessary to give ministers these powers to ensure the Good Friday agreement was upheld in the event of no deal. But the official said the internal market bill to be unveiled on Wednesday was designed to uphold the promise that traders in Northern Ireland would have unfettered access to the UK market. “I think this is politics over law,” said Barnard. “I think they are trying to make it clear to the EU that they need to make some movement in the talks and they are using something as sensitive as the Northern Ireland protocol in order to precipitate that. But it is a very high-stakes gamble.” At the heart of the issue is article 5 of the Northern Ireland protocol, which means tariffs are payable on goods entering the Republic of Ireland from another part of the UK via Northern Ireland.
The UK has been arguing that goods that remain in Northern Ireland – for example, food going from Tesco distribution centres in the Midlands to Belfast – should not be liable to duties. It wants ministers in London to draw up the list of the goods “at risk” of going on to the republic, thus minimising the disruption in the internal British market. Sources say the EU’s working assumption is that all goods are at risk of going into the republic – even goods on Tesco shelves – because the region is so small. Lord Ricketts, the chair of the EU security and justice sub-committee, believes this is the real reason behind the new legislation, and accused the government of trying to opt out of parts of the agreement it does not now like. “They signed a treaty containing such checks, then denied it, and now plans to breach the treaty,” he tweeted.