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The IBA’s response to the situation in Ukraine
In early September, the British Government introduced its proposed Internal Market Bill to parliament, a piece of legislation that has quickly become highly contested. Ostensibly intended to protect the United Kingdom’s internal markets if negotiations on a post-Brexit trade deal with the European Union break down, the Bill’s text has raised questions about the UK’s commitment to the global rules-based order.
The Secretary of State for Northern Ireland, Brandon Lewis, conceded in early September that the Bill’s proposals would, in a very ‘specific and limited way’, break international law.
The proposed Bill, which passed its first round in the House of Commons in mid-September, is designed to enable the free flowing of goods and services in the UK’s internal markets after 1 January, when the UK will leave the EU’s single market and customs union.
Professor of Public Law & Chair of the Faculty of Law, University of Cambridge
It contains several controversial clauses and notably confers the UK government with powers to breach the legally binding EU Withdrawal Agreement and its Northern Ireland Protocol. The Withdrawal Agreement governs the Brexit transition period and was agreed and signed by the UK and EU in January.
The UK Prime Minister Boris Johnson has called the powers within the Bill ‘an insurance policy, and if we reach agreement with our European friends, which I still believe is possible, they will never be invoked’.
But regardless of invocation, many critics of the Bill – including several former Prime Ministers and many in the UK’s legal profession – argue the drafting of a Bill with such powers has already irreparably damaged the UK’s reputation as a defender of the rule of law, and may be a breach of law itself.
In early October, the EU put the UK government on notice, with the European Commission President, Ursula von der Leyen, stating: ‘This draft bill is by its very nature, a breach of the obligation of good faith, laid down in the withdrawal agreement. Moreover, if adopted as is it will be in full contradiction to the Protocol on Ireland and Northern Ireland.’
Under the original text of the Bill, which may still be amended, the British Government would be able to ‘disapply’ exit procedures regarding goods moving between Northern Ireland and Britain, regardless of whether such powers are exercised in a way that’s incompatible with the Withdrawal Agreement.
The Bill’s Clause 45 seeks to ensure that in any clashes between domestic law and the Withdrawal Agreement, domestic law overrides the Agreement, stating ‘Certain provisions to have effect notwithstanding inconsistency or incompatibility with international or other domestic law.’
The head of the UK government’s legal department, Sir Jonathan Jones, and the Advocate General for Scotland, Lord Richard Keen, were among those to resign in reaction to the Bill.
Toby Cadman, European Regional Forum Liaison Officer of the IBA War Crimes Committee and an international law specialist, notes that in mid-September the Secretary of State for Justice Robert Buckland said that he will resign if he finds the law has been breached in a way that he finds unacceptable. Cadman says, ‘You have to ask yourself the question, is there a sliding scale of acceptability of breaching international law?’
A spokesperson for the Attorney General’s Office (AGO) tells Global Insight that ‘the Bill is designed to create a legal safety net and is in accordance with principles of parliamentary sovereignty. The Government maintains that it is asking Parliament to support the use of the provisions in the [Bill], and any similar subsequent provisions, only in the case of the EU being engaged in a material breach of its obligations and thereby undermining the fundamental purpose of the Northern Ireland Protocol and the integrity of the United Kingdom.’
The spokesperson adds that the government is clear that it is acting in full accordance with UK law and the UK’s constitutional norms.
The AGO points to the government’s published legal position on the Bill, which argues the Withdrawal Agreement is ‘expressly subject to the principle of parliamentary sovereignty’.
However, Mark Elliott, Professor of Public Law & Chair of the Faculty of Law at the University of Cambridge, disputed all aspects of the government’s published legal position, calling the parliamentary sovereignty approach a ‘non sequitur’.
‘The UK may have left the EU, but it has not left the community of nations or the rules-based international order,’ he says. ‘Treaty obligations are binding upon the UK, and to suggest that they are not “because Parliament is sovereign” is as embarrassing as it is dangerous’.
He tells Global Insight that he regards this as a dangerous notion because it undermines commitment to the principle of the rule of law. ‘It gives the impression,’ he says, ‘including to domestic audiences, that the internal concept of parliamentary sovereignty somehow means that the UK is in a special position when it comes to the legal requirement to abide by international law’.
UK Attorney General Suella Braverman has consistently defended the Bill. In the House of Commons in late September, she argued ‘the question of whether in law the Government can act in this way is very simply answered: yes, they can. The question of whether they should is one for political debate, not legal argument.’
The Bill’s Clause 45 also removes the scope for ‘challenge before domestic courts to enforce the rights and remedies provided for in the Withdrawal Agreement’, according to the government’s own legal position regarding the original text.
Raphael Hogarth, an associate at think tank the Institute for Government, expressed concern via Twitter that this means the government is trying to create a non-justiciable power. This concern is shared by Lord Charles Falconer, the UK’s Shadow Attorney General. He says, ‘the government is trying to make clear in the drafting that no international agreement can trump this statute. They’re also trying to reduce as much as possible the ability of the courts to interfere by judicial review.’
Since the original Bill was published, amendments have been made including a clause that, according to Professor Elliott, suggests judicial review of regulations made under Clauses 42 and 43 may be possible. Paragraph 46 of the European Convention on Human Rights (ECHR) Memorandum for the Bill as amended in the House of Commons Committee claims Clause 45 does ‘not operate to oust the judicial review jurisdiction of the courts although they exclude the ability to find that that [sic] the regulations are unlawful on the grounds that they are incompatible with a rule of international or domestic law’.
But concerns about the government’s commitment to the rule of law extend beyond Clause 45.
Professor Elliott tells Global Insight that ‘the Internal Market Bill is part of a bigger picture whereby the UK government’s willingness to subject to external checks and balances, whether from Parliament or the courts, is increasingly in doubt.’
He points to concerns over the bypassing of Parliament in relation to the making of Covid-19-related regulations and the Independent Review of Administrative Law – intended to consider options for reforming judicial review – as examples of this.
The AGO did not comment on Global Insight’s question regarding any erosion of judicial review.
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