Parliament must tell this overreaching executive: “Not in our name”

On Monday this week, the Russian Ambassador to the UK was summoned to the Foreign Office for the government to register its deep concern about the poisoning of opposition leader Alexey Navalny with the nerve agent Novichok. In an official statement, the Foreign Office said:

“The Foreign Secretary has made it clear that is absolutely unacceptable that a banned chemical weapon has been used, and that violence has again been directed against a leading Russian opposition figure. There is a case here for Russia to answer. This took place on Russian soil, against a Russian citizen. They have international obligations to uphold. This is nothing short of an attack against the rules-based international system which keeps our societies safe.”

The next day, the Secretary of State for Northern Ireland, Brandon Lewis, candidly told the House of Commons that the government’s proposed legislation on the UK’s internal market “does break international law”—a confession borne out in spades when the bill itself was published on Wednesday.

Is this invocation of the rules-based international system and simultaneous introduction of international law-breaching legislation a circle that can be squared, or is it a case of Rule of Law doublespeak by the government? And, if the latter, what is the price the UK will pay as the world watches this unedifying spectacle play out?

The Rule of Law is a principle often invoked by all sides in a political argument, but there is now widespread consensus about its core meaning. The simple idea that no one is above the law, or that the law applies equally to all—in the memorable words of Lord Denning, “Be ye never so high, the law is above you”—means that governments (including ministers and officials) must comply with the law, including international law. In the words of Lord Bingham, the UK’s former senior law lord and author of the most accessible account of what is meant by the concept, “the rule of law requires compliance by the state with its obligations in international law as in national law.” It also requires access to an independent court or tribunal for the resolution of disputes, including over decisions taken by ministers.

The UK Internal Market Bill contains two major departures from the Rule of Law so conceived.

First, the bill contains provisions which would expressly empower ministers to make regulations that are in deliberate breach of the Withdrawal Agreement, an international treaty between the UK and the European Union. Ministers would be able to decide that export declarations on goods moving from Northern Ireland to Great Britain are not needed, and that EU state aid rules do not apply to trade in goods and electricity between Northern Ireland and the EU, even though the UK recently agreed to both of these things in the Northern Ireland Protocol.

Second, the bill attempts to immunise completely from any legal challenge both the provisions themselves and any regulations made by ministers under the powers given. In a clause of breath-taking audacity (clause 45), the bill provides that the provisions referred to above, and any regulations made under them, are to have effect “notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.” The effect would be that no legal challenge could be brought on any ground whatsoever, whether for breach of international or domestic law, which are maximally defined to include “any legislation, convention or rule of international or domestic law whatsoever,” including any court or tribunal judgment.

This is doubly problematic from a Rule of Law perspective. First, it would be in flagrant breach of international law, because the UK committed in Article 4 of the Withdrawal Agreement to guarantee the availability of effective legal remedies in the UK for breaches of that agreement, including by future statutes. Second, it would preclude any access to a court or legal remedies in respect of laws made by ministers under delegated powers—creating, in effect, a lawless zone in which ministers can do what they like without any effective legal constraint. A business or individual wanting to complain that their rights which the UK committed to protect in the Withdrawal Agreement had been breached by ministerial regulations would have no legal recourse whatsoever, arguably at odds with the Supreme Court’s recent decision in the Privacy International case.

So why does all this matter so much? Isn’t the government entitled to introduce whatever legislation it likes as part of its negotiating strategy in its ongoing discussions with the EU about a future trade agreement?

The primary reason why it matters is that the Rule of Law is an intrinsically good thing: alongside this country’s commitment to parliamentary democracy, it has been recognised as fundamental in our constitutional arrangements for centuries—a quintessentially British value traceable down the ages and long embedded in our institutional arrangements. Thanks to that long tradition, the UK justifiably enjoys a reputation for Rule of Law leadership. The advantages of that reputation give rise to a number of more instrumental reasons to be shocked by the provisions in the bill.

First, as former Conservative prime ministers Theresa May and John Major have pointed out, they would destroy at a stroke the UK’s reputation as a country that can be trusted to abide by its international legal obligations. Not a good look at a time when the UK’s future economic prosperity depends on securing new trade deals with multiple partners.

Second, they would undermine the UK’s credibility when it invokes the rules-based international order to put pressure on other states. As former Conservative home secretary and party leader Michael Howard said in the Lords yesterday, “How can we reproach Russia, China or Iran when their conduct falls below internationally accepted standards, when we are showing such scant regard for our treaty obligations?”

Third, in so damaging the UK’s worldwide reputation as a jurisdiction committed to the Rule of Law, they would threaten much inward investment and the standing of the City of London.

All these are reasons why, as the Conservative Chair of the Justice Committee Bob Neill puts it, “the Rule of Law is not negotiable.” They are why the Ministerial Code provides that ministers, as well as officials, “must comply with the law.” That includes complying with international treaties, as former Conservative justice minister Edward Faulks acknowledged when he told parliament in 2015 that all ministers are obliged to follow international law.

It is no wonder then that there is speculation about the reasons for the resignation this week of the head of the Government Legal Department, Jonathan Jones. Resignations of government lawyers often serve as the proverbial canary in the Rule of Law coalmine, coming as they do from deep in the governmental machinery designed to ensure accordance with the law. When such a highly experienced and respected official resigns, the toxicity at the coal face is very likely to have reached danger level. Parliament will no doubt be keen to hear not only how the government squares the introduction of these provisions with the duty in the Ministerial Code, but, as former Conservative solicitor general Edward Garnier has asked, also how the lord chancellor reconciles his support for the bill with his solemn oath to respect the Rule of Law and defend the independence of the judiciary.

Ministers have offered a variety of justifications for including these extraordinary provisions in the bill: from early explanations downplaying their significance, suggesting that they were merely minor clarifications of ambiguities in the Withdrawal Agreement, through Brandon Lewis’s shaky argument that there are precedents for what he described as “treaty override,” to the prime minister’s surprising claim that a customs border in the Irish Sea is the result of extreme or irrational interpretations of the Northern Ireland Protocol rather than an inevitable consequence of his agreeing to it. But the government has now settled on a much simpler justification: the sovereignty of parliament.

In a statement of its legal position published by the Cabinet Office, the government acknowledges the established principle of international law that a state is obliged to discharge its treaty obligations in good faith, but says “in the difficult and highly exceptional circumstances in which we find ourselves, it is important to remember the fundamental principle of parliamentary sovereignty.” Parliament is sovereign, says the government, and therefore can pass legislation which is in breach of the UK’s treaty obligations.

The invocation of parliamentary sovereignty to justify its actions brings into sharp focus the nature of its claim. Absolute parliamentary sovereignty, untempered by any consideration for the Rule of Law, is inimical to the very idea of international law. If every state could claim the right to legislate in breach of its obligations, there could be no enforceable international agreements. We can only imagine what the Russian ambassador would have said to our foreign secretary had he been summoned a couple of days later.

In fact, the UK’s constitutional tradition is much more nuanced and sophisticated than the government asserts. Our commitment to parliamentary democracy has coexisted for centuries with an equally fundamental commitment to the Rule of Law, as parliament itself has acknowledged on many occasions. That coexistence pre-dated and made possible the UK’s participation in the legal order of the European Union for more than four decades. It does not simply cease to exist as the UK extricates itself from that legal order.

With the inclusion of the provisions in this bill, the government gives the impression that it thinks the rules-based international order is for other states, not the UK. Coming hot on the heels of the announcement of a review of administrative law to explore the scope for putting government decisions beyond legal challenge, and Dominic Cummings appearing to disregard lockdown regulations, the government is in danger of creating a narrative in which people will think that the prime minister and his advisers want to put themselves above the law.

When the bill comes before the House of Commons next week, MPs should therefore be in no doubt about the enormity of what is proposed: in particular, the extent of departure from constitutional norms long held dear in this country, and the seriousness of the consequences for the UK’s international reputation. The House of Commons should remind the government that it is not above the law by removing the offending clauses from the Bill.

It is time for parliamentarians of all parties who believe in the value of the Rule of Law to say to an overreaching executive which claims to be vindicating parliament’s sovereign power: “not in our name.”

 

Murray Hunt is Director of the Bingham Centre for the Rule of Law and was Legal Adviser to Parliament’s Joint Committee on Human Rights from 2004 to 2017