“The rules-based international order… is an overwhelming benefit for the world as a whole.”
That quote is not from some Europhilic lawyer or a Lib Dem MP. It is a quote from Boris Johnson. International law is the basis upon which the government has condemned the use of chemical weapons in Syria, criticised the Chinese national security law and responded to the poisoning of Sergei and Yulia Skripal in Salisbury. It is, therefore, beyond reason why a government so keen to avow the benefits of the international world order and to use it to frame its foreign policy, would reject its virtues so absolutely in the Internal Market Bill.
This is not the same as during the two Gina Miller cases, where the law was unclear on an issue and a government could claim that they did not intend to breach it. Brandon Lewis, the secretary of state for Northern Ireland, explicitly admitted that this bill’s provisions break international law. There is no question of legal debate on this issue, nor is there anyone within government trying to present the issue as though there is. This is a willful and deliberate breach of our international obligations.
At this point, it is worth stating what elements of the Internal Market Bill are problematic. Under section 45, it holds that regulations made by a minister on state aid or customs declarations would be valid regardless of any incompatibilities with international or domestic law. This, in effect, is trying to make these issues non-justiciable. In layman’s terms, it is trying to take away the courts’ authority to assess how the government executes its powers.
This is where the problems regarding the rule of law arise. The most fundamental element of the rule of law goes back as far as Aristotle’s Politics. He explains that “it is better for the law to rule than one of the citizens… so even the guardians of the laws are obeying the laws”. What section 45 does is prevent the guardians of the law from being mandated to obey the laws that they have set themselves. In effect, the government has admitted through this bill that it does not wish to be held to account by the courts.
This should present many difficulties for Robert Buckland, the Lord Chancellor. A basic element of his role is to ensure the rule of law is respected within government. Buckland is no layman. He practised at the bar for 18 years and even sat as a judge. He knows what the rule of law is, and he will know that this bill does not respect it. Therefore, constitutionally, he should follow the lead of Jonathan Jones, now former HM Procurator General, in resigning over this issue.
Further to the obvious constitutional problems with this bill, there are also huge issues with it in relation to foreign policy. As a country, we have always fought to uphold international law. If we are to challenge the vilest human rights abuses of our time, we must be consistent in our respect for the law. We cannot simultaneously be challenging Russia on attacks on civilians in Idlib while flouting our own obligations made under the withdrawal agreement.
Until now we have respected this. A British agreement has always been sacrosanct, and people would make them based upon the knowledge that we would keep to them. If this bill were to progress, then that respect would immediately be diminished and hugely reduce the capacity of our foreign office.
We have already seen our place on the world stage threatened by the mere publication of this bill’s content in the form of Nancy Pelosi’s statement given yesterday. She said, “If the UK violates that international treaty and Brexit undermines the Good Friday Agreement, there will be absolutely no chance of a US-UK trade agreement passing the Congress”. And who can blame them? Why should we expect any nation to sign an agreement with us when we cannot be trusted to keep our word?
This bill provides significant and wide-reaching powers for the government to act contrary to the provisions of the withdrawal agreement which parliament voted through just months ago. This would likely result in legal repercussions against the UK itself at the European Court of Justice. Indeed, even if the powers are not used, then the EU would be able to open a formal dispute under the withdrawal agreement and begin arbitration. Either way, the very nature of this bill threatens the essential nature of the EU internal market. It would be odd for the EU to not to respond to this in the ways they are legally entitled to.
A statement from the Society of Conservative Lawyers summarises the issue best: “Upholding the rule of law is a fundamental principle of sound government, knowingly and deliberately breaching it is not”. If this bill proceeds it will threaten our relationship with the EU, it will threaten our ability to execute foreign policy, and it will threaten the rule of law. The government, if it has any sense, must, therefore make a U-turn and abandon this bill.
