The UK government’s admission that the Internal Markets Bill will breach the UK’s obligations under international law is extraordinary, triggering concern across the Brexit political divide and uniting former prime ministers in condemnation, while the EU has now started formal infringement proceedings.
The government’s willingness to set up battles with the EU and the courts has become routine, but even so the far-reaching and counter-productive implications of this bill should concentrate the minds of parliamentarians. All ‘organs’ of the state are responsible under international law for ensuring its obligations are complied with, and this includes the legislature.
Clauses 42-45 of the Bill give ministers powers to make regulations on state aid and on customs arrangements between Northern Ireland and mainland UK that would violate domestic as well as international law, notably the EU-UK Withdrawal Agreement. Given the obstacles to constructing a plausible legal excuse for this, the government has made none.
But even from a policy perspective, justifications are equally weak. Any concerns about the economic fallout of no trade agreement being in place when the transition period ends could be dealt with through the safeguards provision in the Withdrawal Agreement.
Any measures adopted unilaterally through this route would be monitored by the joint committee set up under the agreement. And if the Bill is essentially a negotiating tactic, it seems reckless and counter-productive.
By reneging on an international agreement which is only a few months old the UK government has set itself up with a trust deficit just as it enters a period of intensive trade negotiations around the globe. And deliberately wrecking the UK’s reputation as an upholder of international law weakens the country’s position as it pursues foreign policy objectives equally reliant on international norms.
But the damage will not be confined to UK interests abroad. Ministers disregarding international law undermines the rule of law in the UK as well as their own ministerial code. Questions have already been raised about the willingness of the current Attorney General for England and Wales to defend the Bill, given her particular role in government as a guardian of the rule of law.
Her predecessor — no stranger to legal controversy himself — has condemned the proposed legislation while her Scottish counterpart has resigned. So too has the Treasury Solicitor, the most senior lawyer in the civil service. There is some irony in the government seeing fit to break its international obligations while insisting the British public comply with increasingly harsh restrictions as the country grapples with a worsening COVID-19 crisis.
The Bill also attacks a fundamental check on executive power — the authority of the courts to supervise how public bodies interpret and implement legislation. As currently drafted, regulations made by a minister under clauses 42-45 of the Bill will have effect despite being incompatible or inconsistent with domestic or international law.
Whether this extraordinary version of an ‘ouster clause’ will prevent the courts from conducting meaningful review of these ministerial powers is not certain. But the government’s intent is clear. Regimes with a distaste for independent courts will be taking note. As too will foreign investors and those whose commercial interests rely on the reliability of contracts grounded in English law and adjudication in British courts.
The strong tradition of the rule of law in the UK is an essential guard against misuse of power. Ministerial irritation with the rulings of judges is nothing new, but an overt willingness to remove courts entirely from the equation certainly is. The seriousness of this situation is evidenced by the willingness of former senior judges, including the former president of the Supreme Court, Lord Neuberger, to speak out.
This Bill’s controversial approach is also taking place within the context of increasingly negative signalling from the government on the rule of law. It has launched an enquiry into the practice of judicial review with questionable motives, is threatening the UK’s international commitments on prosecuting war crimes and torture in the Overseas Operations (Service Personnel and Veterans) Bill, and is actively investigating means of circumventing international human rights law and the UN Refugee Convention in order to prevent refugees seeking asylum in the UK.
The consequences of unravelling the rule of law in the UK are profound and costly. If the government is unwilling to recognise this, parliament should - and remove the offending clauses of the Bill.