This Report sets out in brief the Bingham Centre's Rule of Law analysis of the clauses in Part 5 of the Bill of the UK Internal Market Bill that were removed by the House of Lords, to inform the House of Commons consideration of the Lords Amendments to the Bill on Monday 7 December.
The Report concludes that the clauses removed by the House of Lords would seriously damage the Rule of Law and the UK's international reputation as a Rule of Law regarding nation. It recommends that members should not vote in favour of reinstating the clauses in Part 5 of the Bill.
By seeking to reinstate the clauses in Part 5 of the Bill, the Government is asking Parliament to legislate incompatibly with the Rule of Law in two respects.
First, the clauses involve a deliberate breach of the UK's international obligations. They do not merely provide for future breaches of international law by ministerial regulations. By removing the entrenched legal protection that the UK promised to provide for certain rights in the Withdrawal Agreement, and adopting measures which could jeopardise the achievement of the objectives of that Agreement, the reinstated clauses would put the Bill itself in immediate breach of clear obligations which the UK voluntarily and very recently assumed in Articles 4 and 5 of the Withdrawal Agreement.
The "parliamentary lock" introduced by the Commons therefore does not fix the Bill's Rule of Law problem, as the enactment of the Bill with the clauses reinstated would put the UK in breach of its international obligations even before these clauses are brought into force or used to make regulations. 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.
Second, the clauses the Government seeks to reinstate seek to immunise those ministerial regulations from any meaningful legal challenge, placing them beyond effective review by the independent courts. While the Government asserts that the Bill preserves access to judicial review, the practical effect of the provisions in the Bill is to create a monumental ouster clause of unprecedented scope. Preventing access to courts to challenge the legality of ministerial actions is also a fundamental departure from the Rule of Law.
The consequences of such a deliberate repudiation of clear international law obligations, and of such a sweeping exclusion of access to effective legal remedies, are very serious, including for the UK's reputation as a global leader on the Rule of Law and as an advocate for a rules-based international order. The context of negotiations of a new relationship with the EU does not justify such a serious departure from fundamental constitutional norms to which the UK has long adhered. The Rule of Law is not negotiable.
Members of the Commons must ask themselves if their conscience allows them to support such an unprecedented request to approve in principle a Bill containing provisions which depart so significantly from the requirements of the Rule of Law. As Lord Judge said in the debate in the House of Lords
"The rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it. When those responsible for making the law - that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make - knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted."
"The rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it. When those responsible for making the law - that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make - knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted"