The willingness of the UK’s Brexiteer-led Government to pick fights with the European Union is a given. So too, now, is its appetite for a show-down with the courts, as […]
The willingness of the UK’s Brexiteer-led Government to pick fights with the European Union is a given. So too, now, is its appetite for a show-down with the courts, as the recently launched review of administrative law attests. It is therefore perhaps no surprise that the Government, via the United Kingdom Internal Market Bill, has chosen to combine these two preoccupations by provoking an inevitable confrontation with the EU and a likely confrontation with the UK courts.
In the last few days, Ministers doing the media rounds have generally been circumspect as to the legal implications of the Bill — suggesting, for instance, that it is little more than a tidying-up exercise that addresses loose threads in the Withdrawal Agreement and Northern Ireland Protocol. In contrast, Brandon Lewis, the Northern Ireland Secretary, has acknowledged that the Bill would breach international law. While that concession appeared remarkable at the time, it is clear, now that the text of the Bill has been published, that for the Minister to have said otherwise would have caused him to mislead Parliament. For whatever spin other Ministers may have attempted to apply to this matter, there can be no doubt that the Bill, if enacted, would flagrantly breach the UK’s obligations under international law. It does so in two principal ways, each of which is buttressed by two sticks of constitutional dynamite buried in a clause towards the end of the legislation. (This is to say nothing of the implications of the Bill for the UK’s territorial constitution: a matter on which I do not touch in this post, but which, in itself, is profoundly constitutionally significant.)
Clauses 42 and 43
First, clause 42 addresses exit procedures: that is, procedures relating to the movement of goods from Northern Ireland to Great Britain, through the customs frontier for which the Withdrawal Agreement provides (and which Theresa May had rejected, saying that no UK Prime Minister could sign up to such an arrangement). The inclusion of these arrangements in the Withdrawal Agreement cannot possibly have taken anyone by surprise, given that this very issue dominated political discourse in the UK for many months last year. Critically, clause 42 authorises UK Ministers to disapply exit procedures that are required by the Northern Ireland Protocol, which forms part of the Withdrawal Agreement. It is therefore crystal clear that clause 42, if enacted, would permit the UK Government to set aside relevant parts of the Protocol — and that this would be a clear breach of the international law obligations into which the Government entered when it negotiated the Withdrawal Agreement less than a year ago.
Second, clause 43 deals with state aid: that is, the use of public funds to support businesses. Article 10 of the Northern Ireland Protocol makes certain provisions of EU law concerning state aid applicable to the UK in respect of trade between Northern Ireland and the EU, the point being to ensure that a level playing field is retained by precluding a more generous UK state aid regime from advantaging UK firms relative to EU competitors. However, clause 43 drives a coach and horses through this part of the Protocol by authorising the Secretary of State to make regulations not only concerning the interpretation and modification of the application of Article 10, but entirely disapplying it. As with clause 42, there can be no doubt whatever that clause 43, if enacted, would authorise the Government to breach the UK’s international obligations under the Protocol.
The constitutional dynamite alluded to above is found in clause 45. Here, two points are particularly noteworthy. First, this provision hammers home the fact that the arrangements set out in clauses 42 and 43, and the regulations that can be made by Ministers exercising powers under those provisions, are to be regarded as legally effective notwithstanding any incompatibility with (among other things) the Withdrawal Agreement and the Northern Ireland Protocol. If there was any room for doubt (which there is not) that clauses 42 and 43 set out to authorise Ministers to breach international law obligations, any such doubt is entirely removed by clause 45.
However, it goes further than this. Clause 45 also provides that regulations made under clauses 42 and 43 are to have effect if they breach the law deriving from the Withdrawal Agreement to which s7A of the EU (Withdrawal) Act 2018 gives direct effect and upon which it confers supremacy. Clause 45 thus not only resiles from specific provisions of the Northern Ireland Protocol: it also makes inroads into a fundamental legal feature of the 2018 Act which was inserted into it by the EU (Withdrawal) Agreement Act 2020 in order to give effect to a basic architectural aspect of the Withdrawal Agreement itself. In particular, Article 4 of the Withdrawal Agreement provides that certain provisions of the Agreement and of EU law ‘shall produce in respect of and in the United Kingdom [after Brexit] the same legal effects as those which they produce within the Union and its Member States’. Clause 45 of the Bill is flatly inconsistent with this key aspect of the Agreement. In this way, clause 45 lays bare the UK Government’s willingness to weaponize parliamentary sovereignty in order to renege not just on specific commitments but to undermine the broader legal scheme of the Withdrawal Agreement. The crossing of this Rubicon in respect of exit arrangements and state aid will doubtless prompt the UK’s ‘friends and partners’, as the Prime Minister likes to call them, in the EU27 to wonder: ‘What next?’
The second stick of constitutional dynamite found in clause 45 concerns judicial review. Clause 45 provides that regulations made under clauses 42 and 43 ‘have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent’. The definition of ‘relevant international or domestic law’ is nothing if not comprehensive. As well as including obvious candidates such as that Withdrawal Agreement, the Northern Ireland Protocol and EU law, it extends to international law, certain EU- and Brexit-related UK legislation and ‘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’. Attempting to immunise secondary legislation, such as regulations made under clauses 42 and 43, against challenge on such a broad range of grounds is extraordinary, and rams home the point that the Government is seeking to ensure that Ministers are equipped to breach international law. But the reference to ‘any … rule of … domestic law’ is also striking and can certainly be read as an attempt to exclude any judicial review on normal domestic law or human rights grounds of regulations made under clauses 42 and 43.
It is difficult to predict with certainty whether a UK court would be prepared to conclude that clause 45 ousted judicial review in this way. It might, for instance, be argued (in line with the Anisminic case) that saying, as clause 45 does, that regulations ‘made under’ clause 42 or 43 have effect notwithstanding incompatibly with any rule of domestic law is insufficient to oust judicial review because clauses 42 and 43 should not, in the first place, be read as authorising regulations that breach judicial review principles — meaning that regulations that do breach those principles are not ‘made under’ the relevant clauses. It is also possible that, in line with some judicial comments in the Privacy International case, a court might be prepared to say that Parliament cannot entirely oust judicial review — thus seeking to address the weaponisation of parliamentary sovereignty head on by denying it. That, however, would be a very unwise step for a court to take, particularly at the present time — not least because it would precipitate precisely the fight with the judiciary for which the Government has been spoiling since it lost the prorogation case last year.
A perfect constitutional storm
The Internal Market Bill thus sets the scene for a perfect constitutional storm: a confrontation with the EU, a stand-off with the courts, a fundamental attack on the rule of law, and a diminution of the UK’s commitment to the rules-based international order. Any suggestion that rule of law is not threatened by the Bill — whether because, as the Northern Ireland Secretary claimed, the breach of international law is ‘specific and limited’ or because international law is somehow different — is simply unsustainable. Respect for the rule of law includes respect for international law — as the UK Ministerial Code used to make explicitly clear and as is still, as the Court of Appeal has held, implicitly clear in the current iteration of the Code. The promotion by the UK Government of a Bill that expressly breaches the UK’s international obligations is thus nothing short of extraordinary. The Head of the Government Legal Department resigned yesterday. The Lord Chancellor, whose role as a constitutional guardian of the rule of law is recognised by statute, must surely now consider his position.
I am grateful to Jack Williams of Monckton Chambers for comments on an earlier draft of this post.