This Report sets out in brief the Bingham Centre's Rule of Law analysis of clauses 42 to 45 of the UK Internal Market Bill, to inform the consideration of those clauses by the House of Commons in Committee of the Whole House on Monday 21st September.
In clauses 42 to 45 of the Bill, the Government is asking Parliament to legislate in deliberate breach of the UK's international obligations. The Bill would authorise future breaches of international law by ministerial regulations, but is also itself in breach of clear obligations which the UK voluntarily and very recently assumed in Articles 4 and 5 of the Withdrawal Agreement. The precise nature of the breach was candidly explained by Secretary of State for Northern Ireland Brandon Lewis - most flagrantly, clause 45(2)(b) will disapply the direct effect and supremacy which the Government agreed to give to the WA to the extent necessary to enable it to make regulations which disapply provisions in the Northern Ireland Protocol to the Withdrawal Agreement.
As Lord Tom Bingham made clear in his well known exposition of the concept, the Rule of Law requires compliance by the State with its obligations in international law as in national law. A breach of the rule of international law is still a breach of the Rule of Law.
The Government's reliance on internal law to justify its position does not affect the fact that the Bill deliberately breaches international law and therefore the Rule of Law. Whether a UK court would be able to provide a remedy if Parliament repudiates Article 4 WA does not affect the fact that passing the Bill will put the UK in immediate breach of the WA and therefore in breach of international law. Introducing such a Bill is also a breach of the Ministerial Code, which requires ministers to comply with the law, including international law.
The nature of the breach of international law, and therefore of the Rule of Law, in this case is particularly stark, This is not a case of a provision in a Bill possibly or arguably being incompatible with one of the UK's international obligations. It is an explicit repudiation of the express terms of an agreement very recently entered into by the Government on behalf of the UK.
The Government has responded to Rule of Law concerns about the Bill by tabling an amendment which would prevent the relevant clauses from being brought into force until the House of Commons has passed a resolution to that effect. This is part of the Government's characterisation of the clauses as a "reserve power" which it will only be necessary to use in the event that the EU insists on an unreasonable interpretation of the WA/NIP.
The report considers the Government's arguments but concludes that the Government amendment does not fix the Bill's fundamental Rule of Law problem. The fact that the coming into force of those provisions will be deferred pending a further resolution of the House of Commons does not alter the fact that Parliament is being asked by the Government to legislate in breach of its treaty obligations in the Withdrawal Agreement.
The essence of the Rule of Law problem with the Bill is that it threatens a breach of treaty obligations as part of a negotiating position in relation to a future agreement. The Rule of Law is not negotiable.
The treaty itself provides a dispute resolution mechanism for resolving disagreements about its interpretation. The Rule of Law-regarding way for the UK to proceed is by invoking the dispute resolution mechanism provided for by the treaty, not legislating to disapply the treaty if its interpretation is not accepted by the other party.
The consequences of such a repudiation of a clear international law obligation are very serious, including for the UK's reputation as a global leader on the Rule of Law and as an advocate for a rulesbased international order.
MPs must ask themselves if their conscience allows them to support such an unprecedented request to authorise the clear repudiation of a treaty obligation to which the UK only recently agreed.
The question for parliamentarians is whether, whatever the position under UK constitutional law, they are prepared to take the unprecedented step of voting in favour of a deliberate breach by the UK of its international obligations under the WA. The Report concludes that the only way to avoid that consequence, and therefore to avoid Parliament being implicated in a breach of the Rule of Law, is to remove these clauses from the Bill.