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Case Update

Our Claim to establish that the Withdrawal Agreement is Unlawful will Continue

16th November 2019

The case in Scotland to establish that Boris Johnson’s Withdrawal Agreement is unlawful will continue.

Last month I brought proceedings in Scotland to establish that the proposed Withdrawal Agreement is unlawful. Section 55 of the Taxation (Cross-border Trade) Act 2018 makes it unlawful for the Government to “enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.”

The background to section 55 is set out in this briefing paper prepared by the House of Lords library. The basis for section 55, described by Mel Stride MP, then Financial Secretary to the Treasury, as a “straightforward statement of government policy” was that the Government was “committed to protecting the constitutional integrity of the United Kingdom.”

At a hastily convened hearing for interim relief in October the Judge said he did not believe we had an arguable case. However, we have commissioned evidence from Professor Alan Winters, Director of the UK Trade Policy Observatory, which supports our position. That evidence can be read here. Notably it says that a remarkable 75% of Northern Ireland’s imports will be subject to EU customs duties.

Of course, if the Conservative Party wins the General Election, it can and probably will ask Parliament to repeal section 55. And if Parliament does repeal section 55 it will no longer represent a legislative bar to the Withdrawal Agreement. But in the meantime there seems to me to be an important principle at stake.

If the United Kingdom leaves the European Union we will, for the first time in decades, make our own trade policy. That trade policy is likely to have profoundly important consequences for the country – consumer protection, the shape of the NHS, the viability of sectors of our economy – and so on. It seems to me important to establish that Government respects Parliament’s primacy when it comes to shaping trade policy. So if, for example, Parliament legislated that the Government ‘shall not negotiate lower food standards’ it would be unlawful for Government to negotiate a trade deal that permitted the importation of hormone-fed beef.

These are matters, it seems to me, which Parliament must be able to control. And I am continuing this case to secure that it can.


This article is part of our Withdrawal Agreement is illegal case

Parliament adopted the Taxation (Cross-border Trade) Act 2018 (section 55) which prevented the Government from concluding an agreement pursuant to which Northern Ireland would have different customs rules than the rest of the UK. We contended that the Withdrawal Agreement agreed in 2019 had that effect and was therefore illegal.

See more about this case