13:36, September 09 173 0 theguardian.com

2020-09-09 13:36:04
Internal market bill: what it says and the UK hopes to achieve

The internal market bill is designed, according to the government, to “protect jobs and trade” within the UK after the end of this year’s transition period for leaving the EU.

The legislation will, the government declared, “enable the UK government to provide financial assistance to Scotland, Wales, and Northern Ireland with new powers to spend taxpayers’ money previously administered by the EU”.

One of its main aims is to empower ministers to pass regulations, specifically on trade and state aid, even if they are contrary to the withdrawal agreement previously reached with the EU under what is known as the Northern Ireland protocol.

The 58-page text of the bill does not disguise its intention. Section 45, for example, is quite blunt, stating that powers contained in the bill “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent …”

It continues: “Regulations … [of the bill] are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law …”

The legislation adds: “Any other provision or rule of domestic law that is relevant international or domestic law ceases to have effect so far and for as long as it is incompatible or inconsistent with a provision mentioned [elsewhere in the bill].”

The bill also states that the “international and domestic law” to be disregarded includes “any provision of the Northern Ireland Protocol [and] any other provision of the EU withdrawal agreement …”

Ministers can make regulations which ignore “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”.

Lawyers expressed amazement at the explicit manner in which the bill overrides the UK’s international treaty obligations.

“This is rather remarkable stuff,” Catherine Barnard, professor of European Union at Cambridge University, tweeted. It contains, she said, “express provisions” not to comply with the Northern Ireland protocol, which is part of the withdrawal agreement from the EU.

“This is the legislative drafting equivalent of a President Trump tweet,” remarked Adam Wagner, a barrister at Doughty Street chambers specialising in human rights.

Lord Sumption, the former supreme court justice, told BBC radio: “There may be a political justification … but there’s no way in which this can be consistent with the legal obligations of the government under treaty. And the government has cheerfully admitted that.”

Michael Dougan, professor of European Law at Liverpool University, tweeted: “First reading of UK internal market bill: for devolution, it’s as bad as many had feared, if not a bit worse; for the Northern Ireland Protocol, and the UK’s reputation in the rules-based international order, it’s as scandalous as recent reports suggested.”

Eirik Bjorge, professor of law at Bristol University, said: “A state that is bound by an agreement is not in a position subsequently to say that it intended only to subscribe to something that might later be clarified, even clarified unilaterally.”

Even before the bill was published, lawyers were signalling concern over the government’s intention to ignore treaty laws. Amanda Pinto QC, chair of the Bar Council which represents barristers in England and Wales, warned: “It should not need to be said that this country is built on, and subject to, the rule of law.

“Undermining this vital principle will fatally puncture people’s faith in our justice system, both at home and internationally. Someone committing a crime in a ‘specific and limited way’ nonetheless commits a crime and an admitted breach of international law in a ‘specific and limited way’ is nonetheless a breach.”

The justice secretary, Robert Buckland QC, was challenged on Wednesday by Labour to “protect the rule of law from attack from inside [his] own government”.

David Lammy, the shadow justice secretary, wrote to Buckland, pointing out that: “Maintaining the sanctity of the rule of law has been central to [the lord chancellor’s] position for more than 400 years … What steps do you plan to take to protect the rule of law from attack from inside your own government?

“If you fail to prevent the government from breaking the rule of law, will you stand by your oath to respect the rule of law by breaking cabinet responsibility on this matter?”

The Ministry of Justice said the lord chancellor would reply to Lammy “in due course”.

Defending the bill, the business secretary, Alok Sharma, said: “Without this vital piece of legislation businesses across the UK would face unprecedented barriers and costs.

“A Welsh lamb farmer would be unable to easily sell lamb in Scotland as they can do now. A Scotch whisky producer could lose total access to English barley. And a car built in England would be more expensive to buy in Northern Ireland.”

If the UK internal market bill emerges from parliament unchanged, it is likely to face an immediate challenge in the courts that will raise fundamental constitutional issues.

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