Brandon Lewis may have been right when he told the House of Commons that the Internal Market Bill breaks international law in a “specific and limited” way, but there is a lot to be concerned about in how this bill treats both international and domestic law, argues Raphael Hogarth
The Northern Ireland secretary told the House of Commons this week that the Internal Market Bill breaks international law, but only in a “specific and limited way”.
In a sense, he was right. The bill would give ministers powers to make regulations about state aid and customs procedures for trade from Northern Ireland to Great Britain, and would allow ministers to make regulations inconsistent with the UK’s obligations under the Withdrawal Agreement.
The existence of those powers is a breach of Article 4 of the Withdrawal Agreement, which provides that the UK must use primary legislation to give full effect to the Withdrawal Agreement in domestic law.
However, unless the powers were actually used, the UK would not be in breach of the state aid and customs provisions of the Northern Ireland protocol.
The bill is nevertheless concerning: it breaches international law, lays the ground for much more extensive breaches of international law, and tries to insulate ministers from judicial scrutiny at home.
Even a “specific and limited” breach of international law damages the UK’s standing
The UK has always stood up for international law on the world stage. Calling into question the UK’s commitment to the rules-based order, even in the abstract or in principle, and even over a “limited” issue, is attended with risks.
First, it will make it harder for the UK to enforce international norms on other countries. International law is the basis on which the UK has condemned Russia’s poisoning of Alexander Litvinenko and Sergei Skripal, China’s National Security Law in Hong Kong, nuclear programmes in Iran and North Korea and the use of chemical weapons in Syria.
British diplomats should not be surprised if, next time they read the riot act to the representatives of another state about a breach of international law, they are told that it was only “specific and limited”.
Second, it will be harder to do deals with partners, including the EU, if the UK has a reputation for reneging on its promises.
Boris Johnson himself has argued that “the rules-based international order which we uphold in Global Britain is an overwhelming benefit for the world as a whole”. The Internal Market Bill makes that a harder case for the UK to make.
The bill opens the door to extensive and wide-ranging breaches of international law, which could see the UK taken to the European Court of Justice
If the bill passes but the powers in it are not used, then it would be possible for the EU to open a formal dispute under the Withdrawal Agreement and, ultimately, to submit the dispute to arbitration. It would ultimately be a political judgement for the EU whether that was worth it.
If, however, the bill passes and the powers are used to override the state aid and customs provisions of the Northern Ireland protocol, then the implications could be much more far-ranging.
These would be breaches of substantive obligations undertaken by the government, which the EU may consider to threaten fair competition and the integrity of the single market.
Because of the special dispute resolution processes in the Northern Ireland protocol, the European Commission would be able to take action against the UK itself, and enforce the treaty against the UK at the European Court of Justice.
Therefore, although the breach of Article 4 is “specific”, the breaches the bill leaves open to the government are much more extensive.
The bill tries to place some ministerial decisions above the law altogether
Perhaps more extraordinary than the bill’s provisions on international law are those on domestic law. Under s45(4)(g) of the bill, regulations made by the minister on state aid or customs declarations would have legal effect notwithstanding their incompatibility with "any rule of international or domestic law whatsoever".
This appears to be an attempt to oust the jurisdiction of the courts to review the legality of ministerial decisions under these powers at all.
Such clauses are rare, and they rarely work. The courts have repeatedly found ways of reviewing government decisions even where similar clauses have tried to keep them out of the picture.
That is because the judges consider them an affront both to the rule of law and to parliamentary sovereignty. “It is a necessary corollary of the sovereignty of Parliament,” the Supreme Court said in a case on this issue last year, “that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament.”
Section 45 of this bill will make uncomfortable reading for anyone who believes in the principle that governments are subject to the law, at home and abroad. It requires careful scrutiny in parliament.