The Internal Market Bill, setting out a single framework for future trade with the different parts of the UK, already had the potential to bring about major strains on the Union of the United Kingdom, and fundamental disagreements with the devolved governments over the extent to which it overrides powers already devolved to them. Statements from the Scottish and Welsh governments suggested that consultation before the introduction of the Bill had been inadequate.
However, the UK government’s stated intention to break international law, by taking powers to disapply whole areas of the Withdrawal Agreement with the EU in relation to Northern Ireland, breaks new ground. In this article we argue that these provisions of this Bill undermine the United Kingdom’s commitment to the rule of law, are no sort of guide to the way we need to be governed after Brexit, and deserve to be removed by Parliament or struck down by the courts. The law breaking provisions are also a threat to Parliament itself, because Parliament is a law making body; if laws can be set aside by the executive at will, where is its relevance? Amendments requiring Parliamentary consent to break the law do not fix this problem.
So far, five former Prime Ministers, a former Lord Chief Justice, Chancellor of the Exchequer, Attorney General, and a variety of former Ministers and Conservative leaders have spoken out against this. Three significant resignations might give any government that was listening pause for thought. David Melding, a Conservative Senedd member in the Welsh Parliament resigned from the Welsh Conservative front bench as Shadow Counsel General, saying that the Bill put the Union in danger. Lord Keen has resigned as Advocate General for Scotland, finding himself unable to formulate arguments to justify a government deliberately breaking the law. Sir Jonathan Jones has resigned as Head of the Government Legal Department, without giving reasons publicly.
Internal Market White Paper
In our briefing on 16th July 2020 on the UK government’s Internal Market White Paper we pointed out that this was a matter of exceptional economic, political and constitutional importance for the United Kingdom. The White Paper sought to address the way in which trade would be conducted with the United Kingdom after Brexit. Specifically, it sought to address the way in which there needed to be one single framework, or Internal Market, for such trade within the United Kingdom, rather than potentially four inconsistent regimes in England, Scotland, Wales and Northern Ireland. In the White Paper, the UK government proposed a Market Access Commitment, based on two key principles, namely Mutual Recognition and Non-Discrimination.
Mutual Recognition would mean that rules governing the production and sale of goods and services in one part of the UK would be recognised as meeting the regulatory requirements applicable in other parts of the UK, and this would also apply to professional qualifications.
Non-Discrimination would prevent rules being applied in one part of the UK which would discriminate against goods and services from another.
However, as we noted in July, the transfer of powers from the EU back to the UK at the end of the Transition Period on 1 January 2021 is expected to cover as many as 160 policy areas, and many of these cover areas where legislative competence has already been devolved to the governments in Scotland, Wales and Northern Ireland. The devolved governments have been very wary that this return of powers to UK level should not result in a re-writing of the different devolution settlements and a return of powers to the UK government in Westminster. There has been a system of consultation between the UK government and devolved governments on issues of this kind, known as “Common Frameworks”, but the UK government has not done enough to make this work effectively, and through rigorous and comprehensive consultation, to make the devolved governments share ownership of common problems and common interests such as trading arrangements after Brexit. Instead the UK government has indicated its preference for UK-wide legislation, an Internal Markets Bill, to set out the principles of Mutual Recognition and Non-discrimination.
The Scottish government, whose political ‘magnetic North’ is the pursuit of independence, had made it clear for a year that it would only cooperate with the voluntary Common Frameworks and not through an Internal Markets Bill. Even the original proposals as outlined in the White Paper therefore carried with them the risk of a serious constitutional clash between the UK government and devolved governments.
Internal Market Bill
The UK government opted to press on with legislation to give effect to the proposals in the White Paper, in the form of the Internal Market Bill, despite Scottish and Welsh concerns. The Bill sets out a statutory framework for the Mutual Recognition and Non-discrimination principles, and gives the Competition and Markets Authority a monitoring role over the UK internal Market. However, it is the UK government’s proposals for Northern Ireland that have caused even more controversy.
The EU Withdrawal Agreement which Prime Minister Boris Johnson signed, with much fanfare, on 24 January 2020 contained a number of significant compromises on Northern Ireland, mainly to reflect the perceived need under the Good Friday Agreement to avoid hard borders between Ireland and Northern Ireland.
The Withdrawal Agreement could require agreement with the EU (and therefore EU involvement in) key issues such as exit procedures for goods from Northern Ireland to Great Britain, the treatment of goods ‘at risk’ of being moved from Great Britain through Northern Ireland to Ireland, and state aid to businesses, not just in Northern Ireland itself, but theoretically extending to supply chains from Great Britain.
Whether or not the UK government was right to make the compromises above, it did so. The Withdrawal Agreement was signed, and Prime Minister Johnson had himself photographed as he signed it, declaring that this was a “fantastic moment”…”this signature heralds a new chapter in our nation’s history.”
By the time that the Internal Market Bill was introduced, the UK government concluded that the Withdrawal Agreement, if fully implemented as written, could have unacceptable implications, especially in the event of there being no agreement with the EU on future trade.
But instead of recognising that it had made and signed the Withdrawal Agreement, which now represented international law, or looking to use alternative dispute mechanisms, the UK government formally announced that it would take powers in the Internal Market Bill to set it aside, at will, and to break international law when it chose to do so. Hence the unprecedented statement by Brandon Lewis on the behalf of the UK government in the UK Parliament on 8th September 2020 that –
“Yes, this does break international law, in a very specific and limited way”.
The Internal Market Bill when published the next day makes that unambiguously clear, in clauses 42-45, which give Ministers wide powers to disapply those parts of the Withdrawal Agreement to which they object, and further seeking to make the exercise of those powers immune from all challenge and judicial review.
Prime Minister Johnson has defended the Bill as “absolutely vital” to “prevent a foreign or international body from having the power to break up our country”.
Whatever the arguments may be about the contents of the Withdrawal Agreement, whether the EU is being fair or reasonable, or unfair and unreasonable, in its negotiations, whether or not the very significant compromises in the Withdrawal Agreement should have been made in the first place, the bald assertion by the UK government, in Parliament and in published draft legislation, that it plans to break international law is, in itself, a dramatic new twist in the interminable Brexit saga.
Maintaining provisions in this Bill allowing the government to break the law appears to guarantee that there will be no free trade agreement with the either the EU or the United States, judging from statements from the European Parliament and Commission, and U.S. Speaker of the House of Representatives Nancy Pelosi and Democratic candidate Joe Biden.
The provisions undercut UK efforts to be seen as a reliable negotiating partner for future trade agreements, and the UK’s position when encouraging other countries to meet their international law obligations. For example, as the Chair of COP 26, the UK is encouraging other countries to meet the obligations of the Paris Agreement on Climate Change: it cannot make that task any easier if the UK government is at the same time announcing its own intention to break international law.
Maintaining the union of the United Kingdom should be the first concern of its government. Respect for the rule of law is not just some esoteric issue of concern only for lawyers. It is a key part of the UK’s international reputation and credibility: once squandered it will not be readily regained. Putting both the union and respect for the rule of law at risk is reckless, irresponsible and wrong.