The Internal Market Bill: A New Threat to the Rule of Law

I. Introduction

The rule of law has long been identified, alongside the principle of parliamentary sovereignty, as an enduring pillar of the UK's constitution. Although the principle continues to be deployed in the absence of a universally agreed definition, there is a general consensus that the rule of law provides an indispensable framework for the exercise of government power, acting as a constraint to prevent its arbitrary exercise. In a hearing with the House of Commons Justice Committee in July 2020, Suella Braverman QC MP, the UK's Attorney General since February 2020, declared that her primary duty 'definitely' lies with securing the interests of the rule of law, rather than those of her party. This is surprising, given that she has recently made news with her high-profile defence of the proposed Internal Market Bill. The provisions of the Bill deliberately breach the UK's treaty obligations under international law and significantly impair judicial review. The former represents a weakening of the UK’s commitment to a rule-based international order, whilst the latter poses an even more direct challenge to the domestic rule of law. In light of this, senior politicians, including the Attorney General, should consider stepping down.

II. The provisions of the Internal Market Bill

Several provisions of the Internal Market Bill have generated controversy and criticism which the Attorney General’s brief legal defence has been unable to silence. Indeed, even in the context of pugnacious Brexit negotiations between the UK and the European Union, clauses 42, 43 and 45 of the Bill have stood out to legal experts.

1. Clauses 42 and 43: Jeopardising international law

Clause 42 of the Bill is concerned with exit procedures, including the procedures applicable to goods moving from Northern Ireland to Great Britain through the customs frontier which the Withdrawal Agreement between the UK and EU provides for. As indicated by Professor Mark Elliott, clause 42 of the Bill is problematic in that it provides ministers the ability to modify and disapply exit procedures required by Article 5 of the Northern Ireland Protocol, which forms part of the Withdrawal Agreement. By equipping government ministers with the power to unilaterally set aside relevant parts of the Protocol, the UK government is undoubtedly breaching its treaty obligations under international law that it entered into less than a year ago. Astonishingly, the government’s explicit intention to abscond from its obligations under international law has been confirmed by the Secretary of State for Northern Ireland, as well as the Attorney General herself.

Clause 43 breaches international agreements in a similar fashion through its handling of state aid. By making certain provisions of EU law applicable to the UK, Article 10 of the Northern Ireland Protocol aims to secure a level playing field with regard to trade between the EU and Northern Ireland by precluding the UK from using public funds to benefit UK firms relative to their EU competitors. If enacted, the provisions of clause 43 would allow the Secretary of State to interpret, modify and disapply Article 10 of the Protocol. Again, this has the unmistakable impact of enabling the UK government to act in breach of its treaty obligations, raising profound questions about the extent to which the UK is committed to upholding an international order based on trust and mutual respect.

2. Clause 45: Restricting judicial review

The contentious provisions of clauses 42 and 43 are cemented by clause 45, section 1 of which renders any regulations made under clauses 42 and 43 legally effective 'notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent’. The wording of ‘any relevant international or domestic law’ is nothing short of exhaustive, and clause 45(6) states that this includes ‘any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal.’ A fundamental component of the rule of law in the UK is that government action, including secondary legislation enacted by ministers, is susceptible to independent judicial review. The fact that clause 45 of the Bill appears to constitute an ouster clause that precludes the challenge of secondary legislation on a vast array of grounds generates serious concerns about whether the UK government’s interests are aligned with the rule of law. Professor Elliott has gone on to highlight that the amendments to the Bill tabled by the government have regrettably failed to clarify the uncertain status of judicial review of regulations made under clauses 42 and 43.

III. The government’s legal position on the Internal Market Bill

How has the chief legal adviser to the government attempted to defend such a blatant disregard for the rule of law? To put it simply, not very well: the Attorney General has presented an unconvincing argument based upon parliamentary sovereignty and dualism, which seems to be deliberately focused on placating domestic critics rather than adequately explaining the UK’s legal position.

Firstly, the government argues that the principle of parliamentary sovereignty makes it acceptable for the UK to renege on its treaty obligations. However, as Elliott notes, this is a non sequitur. It does not follow from the principle of parliamentary sovereignty that the UK as a nation state among equals is justified in unilaterally rewriting the terms of international treaties whenever it is politically convenient at a domestic level. Although it is legally possible for Parliament to enact domestic laws that specifically abrogate treaties or violate international law, invoking parliamentary sovereignty to justify such actions is questionable because two entirely separate legal dimensions are at play. The ambiguity of the Attorney General’s statement, as well as her repeated claim that the decision to break international law was ‘entirely proper’, is misleading. That claim suggests that such conduct is commonplace and justified, when it in fact is an uncompromising step away from the rules-based international order that will lead to severe diplomatic and legal consequences.

In addition to this, the government’s decision to enact legislation that reneges on its ratified treaty obligations may have the effect of undermining the rule of law in the domestic sphere. A crucial aspect of the rule of law is legal certainty – ensuring laws are prospective, clear and certain so that individuals know what their legal position is and can plan their conduct accordingly. This notion was affirmed in R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68, [2014] AC 453 [47]. Whilst Parliament is sovereign in domestic law and can enact and repeal whichever legislation it chooses, this does not mean that it is necessarily justified in making arbitrary changes to its own decisions, especially given that the Withdrawal Agreement was only incorporated into domestic law in January 2020 through the European Union (Withdrawal Agreement) Act. Indeed, breaching treaty obligations recently entered into creates serious uncertainty and a lack of predictability as to the status of and respect of the government for law in general.

Secondly, the Attorney General proceeded to argue that the English and Welsh legal system is dualist in the sense that 'treaty obligations only become binding to the extent that they are enshrined in domestic legislation'. This improperly elides the capacity of Parliament to undo its own legislation with a non-existent ability to shrug off the responsibilities of international legal obligations that fall on the state.  It is true that, in a dualist legal system, provisions set out in international treaties are enforceable before domestic courts only to the extent that they are enshrined in domestic legislation. This lies in contrast to a monist system, in which international law and treaty obligations do not need to be translated into domestic law to be enforced in domestic courts. However, these obligations are still binding on the UK as a matter of international law: a separate realm of law altogether, wherein the EU can - and will - retaliate with legal action to combat the UK’s evasion of its obligations. The decision of the Attorney General to invoke Miller I [2017] UKSC 5 in support of her interpretation of dualism is perplexing, given that the same judgement emphasised the very principle that 'treaties between sovereign states have effect in international law and are not governed by the domestic law of any state'. Clearly, international law dictates that treaty obligations are binding upon the UK, in the same way they are upon any other nation. Neither parliamentary sovereignty nor dualism affect this reality.

It is recognised in paragraph 1.3 of the Ministerial Code that an overarching duty on government ministers to comply with the law exists. Although the words ‘including international law and treaty obligations’ were removed from the Code in October 2015, it was held in R (on the application of Gulf Centre for Human Rights) v Prime Minister [2018] EWCA Civ 1855 that this deletion did not amount to a substantive change in the Code’s meaning - that is, an acceptance that ministers already owed a pre-existing "overarching duty" to comply with the law, domestic or international. It is for this reason that the Attorney General, having acted inconsistently with the Code by supporting and promoting this legislation, ought to reconsider her position, along with the Lord Chancellor, Robert Buckland. Despite the fact that the Code is not legally binding, government ministers have resigned in the past for comparatively minor political misdeeds. They would be joining the likes of Lord Keen, Advocate General for Scotland, and Sir Jonathan Jones, Permanent Secretary of the Government Legal Department, who have rightfully stepped down in light of this Bill’s provisions.

IV. Conclusion

It is incredibly disappointing that the UK government has chosen to act in a way that not only jeopardises the UK’s credibility on the global stage, but also fundamentally undermines the rule of law. In the future, potential partner states will be forced to question the rationale behind entering into important treaties with a nation that picks and chooses when it wishes to abide by international law and attempts to justify unilateral amendments incoherently or in bad faith. Prominent figures within the European Union’s executive branch have already expressed that the UK government ‘has seriously damaged trust between the EU and UK’ by putting forward this bill, and the US House Foreign Affairs Committee felt compelled to publicly warn the Prime Minister that Congress will not support a free trade agreement between the USA and UK if Britain fails to uphold its commitments with Northern Ireland. Amid such chaos, one bleak conclusion is evident; 'when push comes to shove', we cannot rely on Britain's senior politicians to set aside their partisan objectives to defend the rule of law.