With world attention continually focused on the Covid-19 pandemic, news stories which would previously have occupied the airwaves have been somewhat ignored. One of the most worrying of these concerns the UK Government’s proposed Internal Market Bill which seeks to give ministers the power to disapply and alter elements of the Northern Ireland Protocol contained within the Brexit Withdrawal Agreement which was ratified and entered into force on 31 January 2020.
The Internal Market Bill is scheduled for its Report Stage in the House of Commons this evening (29th September 2020).
Which Provisions of the Withdrawal Agreement are Threatened?
The Northern Ireland Protocol, agreed as part of the Withdrawal Agreement, ‘require[s] customs and regulatory alignment with the EU in Northern Ireland only…with the addition of a “consent mechanism” through which members of the Northern Ireland assembly could vote to leave the arrangements.’ For a full report on the implications of this agreement, see:
Article 4 (1) of the Withdrawal Agreement states that ‘The provisions of this Agreement and the provisions of [European] Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.’
Article 4 (2) similarly states: ‘The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.’
However, Article 45(2)(a) of the proposed Internal Market Bill states that ‘[UK] regulations…are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law.’
It appears that the two provisions are in stark contradiction. While the Withdrawal Agreement requires the UK to ‘disapply inconsistent or incompatible domestic provisions’, the Internal Market Bill purports to prevent new regulations from being regarded as unlawful through incompatibility or inconsistency.
What is the Internal Market Bill?
The Internal Market Bill was introduced into the House of Commons on the 9th September and creates powers for ministers to make regulations concerning exit declarations and state aid, both of which are currently governed by the Withdrawal Agreement.
In its second reading in front of the House, many MPs were concerned about the provisions which appear to allow ministers to break international law. Jeremy Wright, the Conservative MP for Kenilworth and Southam and Attorney-General to Theresa May’s government, noted that ‘the ministerial code oblige[s] Ministers to comply with international law as well as domestic law.’ He went on to clarify that ‘this Bill will give Ministers overt authority to break international law’ and questioned whether the position on the ministerial code had changed. In reply, the Prime Minister stated that he had ‘absolutely no desire to use these measures,’ provided that the UK reaches an agreement with the EU. Similarly, Brandon Lewis, the Northern Ireland Secretary, told the House that the Bill breaks international law in a ‘very specific and limited way.’ However, Raphael Hogarth, an Associate at the Institute for Government, explained that the Bill ‘lays the ground for much more extensive breaches of international law, and tries to insulate ministers from judicial scrutiny at home.’
These concerns are shared by Sir Jonathan Jones, the former permanent secretary of the Government’s Legal Department, who reportedly resigned over this proposed Bill. The Financial Times reported that Dave Penman, head of the FDA union that represents senior civil servants, commented: ‘It is…all the more extraordinary that the government’s most senior legal adviser has decided he has no choice but to resign over an issue that he presumably believes conflicts with his own and ministerial obligations, to act within both the spirit and letter of the law.’ This resignation appears similar to that of Geoffrey Cox, former Attorney-General, who the FT report was ‘sacked by Mr Johnson for making “uncomfortable noises” about the importance of abiding by international law.’
A Negotiation Tactic?
Some commentators have suggested that this is a negotiation tactic – a means of gaining leverage on negotiations of state aid in the future. However, the effectiveness of this strategy is questionable. Georgina Wright, a Senior Researcher at the Institute for Government, explains how ‘If the government’s aim was to put pressure on the EU to soften its position, either over the Withdrawal Agreement or in trade talks, it has had the opposite effect. Member states are unlikely to shift their position now if they think the UK will simply turn its back on joint commitments further down the line. The European Parliament has also said that it would not back any trade agreement without the UK’s full backing of the Withdrawal Agreement.’ The efficacy of this move has also been questioned by former Prime Minister Theresa May, who asked, ‘How can the government reassure future international partners that the UK can be trusted to abide by the legal obligations of the agreements it signs?’
At the EU level, the President of the European Commission, Ursula von der Leyen, and the President of the European Council, Charles Michel, have criticised this move:
Potential Future Implications for Britain
As a nation founded on the inviolability of the Rule of Law, this is concerning. Sir John Major commented that ‘For generations, Britain’s word – solemnly given – has been accepted by friend and foe. Our signature on any treaty or agreement has been sacrosanct…if we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained.’
As Hogarth outlines, ‘The UK has always stood up for international law on the world stage’ and the proposed breach ‘will make it harder for the UK to enforce international norms on other countries.’ As he further acknowledges, ‘international law is the basis on which the UK has condemned Russia’s poisoning of Alexander Litvinenko and Sergei Skripal, China’s National Security Law in Hong Kong, nuclear programmes in Iran and North Korea and the use of chemical weapons in Syria.’
The Bill is scheduled for its Report Stage in the House of Commons this evening (29th September 2020). Follow live here: