I was pleased to be invited to give evidence earlier this week to the House of Lords Constitution Committee on the constitutional issues arising from the United Kingdom Internal Market Bill (about which I wrote in an earlier blogpost). In giving evidence to the Committee, I appeared alongside Sir Stephen Laws, former First Parliamentary Counsel, and Sir Franklin Berman, former Legal Adviser to the Foreign and Commonwealth Office. In my evidence, I argued that the Internal Market Bill undermines the fundamental constitutional principle of the rule of law in two key respects.
First, the Bill, if enacted in its current form, would supply Ministers with legal powers to make regulations in breach of the UK’s binding obligations under the EU Withdrawal Agreement and the associated Northern Ireland Protocol. Unlike some of the examples, put forward by Sir Stephen, of other pieces of domestic legislation that have been found to breach international law, the Internal Market Bill is drafted with the clear and specific intent of doing so. I argued that this amounts to a significant distinguishing feature of the Bill and that it correspondingly gives rise to particularly profound rule of law-based concerns. I also argued that the fact that UK legislation may occasionally be found to have breached international law is nothing to the point, given that past, and generally incidental or unintended, wrongdoing is no justification whatever for further such wrongdoing. The wrongheadedness of the contrary view becomes immediately apparent when we recall that the UK Government is frequently found, in judicial review proceedings, to have breached domestic law: the fact that such breaches occur does not, however, give the Government licence to commit further such breaches or justify treating such breaches with equanimity. By the same token, prior examples of UK legislation that may have breached international law does not provide any justification for the enactment of further such legislation that has the clear and specific purpose of facilitating such a breach.
Second, I argued that the Bill is incompatible with the rule of law because it appears to attempt to exclude judicial review of ministerial regulations made in breach of the EU Withdrawal Agreement and the Northern Ireland Protocol. The oversight of government action, including the making of secondary legislation, by independent courts is an axiomatic feature of the rue of law. It follows that precluding judicial review is incompatible with the rule of law and is thus an assault on basic constitutional principle. In my earlier post, I argued that it may be possible for a court to interpret clause 45 of the Bill, which deals with this matter, in a way that would not wholly exclude judicial review. That contention is now arguably made rather easier by amendments to clause 45 introduced by the Government which appear to presuppose the possibility of judicial review. Nevertheless, it remains unclear how the amended version of clause 45 that seems to contemplate the possibility of review is to be read in a way that can be reconciled with the astonishing statement in clause 45(1) to the effect 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’. At the very least, it remains the case that the possibility of judicial review in the light of clause 45 is uncertain — and that, in itself, is cause for serious concern.
At the end of the evidence session, I argued that it is possible for legislation enacted by Parliament to be both lawful as a matter of domestic law, thanks to the doctrine of parliamentary sovereignty, while also being unconstitutional. Speaking in the House of Commons today, the Attorney General signally failed to take that point, apparently treating legality and constitutionality as interchangeable concepts. That view, however, reveals a fundamental misapprehension about how the UK constitution works — or, at least, is intended to work. A critical aspect of the functioning of the UK constitution lies in the willingness of constitutional actors to desist from exercising powers that are legally available to them in order to ensure that constitutional rights, values and principles are properly adhered to.
The Queen, for instance, does not exercise her legal power to veto legislation by withholding royal assent because she rightly considers herself to be bound by constitutional convention that institutionalised democratic principle. Similarly, while Parliament has, as a matter of orthodox constitutional theory, limitless power to enact and change domestic law, restraint is exercised in order to ensure adherence to relevant constitutional standards. This both requires and ought to give rise to a culture of mutual respect, whereby (for example) Parliament respects the courts’ constitutional role, including that which is entailed in judicial review, just as courts respect Parliament’s constitutional right to make the law. It is concerning, to say the least, that such cultural suppositions upon which the effective functioning of the constitution has for so long been premised appears to be under so much pressure — to the point of being at risk of breaking down — at present.
The evidence session can be viewed here.