I support Brexit but the Internal Market Bill is no way to deliver our new settlement

The UK Internal Market Bill (UKIMB), currently making its way through the Lords, has caused much excited comment. The government has been accused by highly respected figures in law and politics of subverting the rule of law, of bad faith and of attacking democracy. The government’s top legal civil servant, Jonathan Jones, resigned over the bill. What’s it all about?

The problem starts with the Protocol on Ireland/Northern Ireland, attached to the revised Withdrawal Agreement (WA) concluded between the EU and Boris Johnson’s government in October 2019. The WA is a treaty, valid in international law. The WA and protocol were given the force of law in the UK by the EU (Withdrawal Agreement) Act 2020, which modified the Withdrawal Act 2018. The protocol is contradictory. It recognises the imperative of keeping an open border between Northern Ireland and the Irish Republic for both people and goods. Yet Articles 4 and 6 also announce that N Ireland is part of the customs territory of the UK and that nothing in the protocol will prevent unfettered market access for goods moving from N Ireland to the rest of the UK. The EU insisted on maintaining the integrity of its internal market. But the only way to preserve an open Irish border and the integrity of the European internal market is by requiring N Ireland to retain regulatory alignment with the EU.

Therefore, under the protocol the EU’s customs laws and VAT regime will continue to apply to goods going to N Ireland from Great Britain, even after the end of the transition on 1st January 2021. Article 5 of the protocol treats virtually all goods moving from Great Britain to N Ireland as if they were imports into the EU (Ireland) from outside the EU (viz GB). Goods moving from N Ireland to GB will have to comply with EU export procedures. The Prime Minister’s assertion in December 2019 that “there’s no question of there being checks on goods going NI/GB or GB/NI” is inconsistent with the protocol. The provisions in the UKIMB to circumvent aspects of the protocol are, effectively, an admission that Johnson’s statement was wrong.

Article 10 of the protocol also stipulates that EU rules will remain operative in respect of state aid affecting trade between N Ireland and the EU. In addition, the Court of Justice of the European Union (CJEU) will retain jurisdiction in any case where there is alleged infringement of the protocol by the UK, just as if the UK were still a member of the EU, yet without any British judge on the court.

Once the “implementation period” ends in December 2020, the UK government faces two problems that the UKIMB tries to tackle. First, the EU internal market regime will no longer apply to the UK. Something has to replace it to ensure that there is a level playing field for goods and services throughout the UK. The UKIMB aims to provide a statutory framework across the UK for this and also for the regulation of state aid. The bill makes all these matters “reserved” areas for Westminster, so as to prevent the devolved legislatures from passing contradictory measures. This has outraged politicians in Scotland, Wales and N Ireland as being anti-democratic and against the principles of devolution.

How can there be a level playing field in goods (at least) in the UK internal market if there is, effectively, an EU customs border in the Irish Sea as agreed in the protocol? The UK hopes that this conundrum can be resolved through the Joint Committee set up under the WA and a Specialised Committee specifically created to deal with disputes and possible amendments to the protocol. But what if no agreement is reached? This leads to the second, even more controversial part of the UKIMB.

The bill does not, indeed cannot, alter the terms of the protocol. But it tries to square the protocol’s own contradictions in Part 5 of the bill, in clauses 42-46. These clauses are poorly drafted. I am not sure I fully understand them after hours of study. Clause 42 emphasises N Ireland’s place in the UK internal market and customs territory, echoing Article 6(1) of the protocol. Clause 43 stipulates that ministers (UK or devolved) and public servants cannot introduce a new check or control on goods moving from N Ireland to Great Britain after 1st January 2021, save to protect the UK internal market under Article 6(1) of the protocol. But clause 43(8) goes further. It permits a minister to make a regulation that prohibits other types of check, including, presumably, the GB-NI checks established under the protocol. Clause 44 gives ministers the power to make regulations on exit procedures for goods going from NI to GB, even if contrary to the protocol. Those regulations can state that obligations in international law (for which read the WA and the protocol) will not be “recognised, available, enforced, allowed or followed.” Clause 45 deals with state aid and Article 10 of the protocol. Ministers may make regulations about how Article 10 is to be interpreted (shades of Humpty Dumpty: “a word means just what I choose it to mean”), and regulations to “disapply” or modify the effect of the protocol on state aid (shades of the Queen of Hearts: “off with his head”).

Clause 47 has been called “constitutional dynamite.” It declares that sections 42-46, (as they will be if the bill is passed) and regulations made under them are to have effect notwithstanding that they may be inconsistent or incompatible with international or domestic law. It abrogates any rights and remedies that are inconsistent with clauses 44 and 45 and regulations made under them. Furthermore, effectively no court (such as the CJEU) will have jurisdiction to decide disputes between regulations made under the UKIM Act and the protocol. It will limit the right to challenge regulations made under those sections to actions by judicial review brought in UK domestic courts and it constrains the procedural rights and relief available.

There are at least three problems for the government, quite apart from the important devolution issues. First, although the protocol is itself contradictory in its terms, HMG has failed to explain why it is proposing a bill which could produce regulations that would be contrary to the express terms of an international treaty the UK agreed to just a year ago. The government’s rationalisation for the extraordinary terms of Part 5 of the bill is thin. Internationally, HMG is wide open to the charge of “Perfidious Albion” yet again. And this is in the very area—trade and customs—where the government is trying hard to persuade other states to enter into legally binding free-trade treaties with the UK. Secondly, it is proposed that treaty obligations which have been ratified by an Act of Parliament can be swept aside by a process of mere ministerial regulation, rather than by further primary legislation. That, at its lowest, is both disrespectful of parliament and the rule of law.

Lastly, and most importantly, the terms of the bill subvert a principle that the UK has been at pains to promote over the centuries: that its institutions, its ministers and those in authority abide by the rule of law, both domestic and international. The principle of “pacta sunt servanda”—agreements are to be kept and operated in good faith—is the oldest principle of international law. It is enshrined in Article 26 of the Vienna Convention on the Law of Treaties 1969. The UKIMB signals that the UK is prepared to flout it; not in a “limited” or “specific” way, but generally. The lord chancellor of Great Britain (but not of Northern Ireland) swears an oath on taking office to “respect the rule of law”; how is that squared with the UKIMB? More broadly, how can Her Majesty’s Government expect individuals, companies and other states to accept that the British legal system abides by the principles of the rule of law if parliament, the fount of UK law, is prepared to disregard such a fundamental rule?

So the excited comments about the UKIMB are not just hyperbole. The writer, a self-confessed Brexiteer, must express astonishment at this attempt to trample on fundamental principles of the rule of law in the bill’s attempt to evade the terms of the protocol. Many did not like the protocol’s self-contradictory terms and its consequences. But the UK agreed to it. It is stuck with it unless it can be amended or superseded by agreement with the EU. Best of British for that!