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MPs are given a say in legislation
But that doesn't make their new laws any more lawful
MPs have given themselves the power stop ministers implementing legislation that breaks international law. Does that make everything all right now? Can we expect the government’s most senior legal advisers to rescind their resignations?
In answering those questions, our starting point must be clauses 42, 43 and 45 of the United Kingdom Internal Market Bill.
What do the three clauses say?
Clause 42 deals with the export of goods from Northern Ireland to England, Scotland or Wales. If passed, the clause will allow ministers to make regulations disapplying or modifying exit procedures required by the Northern Ireland protocol to the EU withdrawal agreement. The regulations may allow for the non-recognition of “relevant international or domestic law”.
Clause 43 will allow the secretary of state to make regulations disapplying article 10 of the Northern Ireland protocol, which governs state aid for trade and agriculture. Again, the regulations may allow for the non-recognition of “relevant international or domestic law”. Specifically, they would allow article 10 to be interpreted contrary to EU law.
Just before we reach clause 45 of the bill, we see the following sub-heading:
Certain provisions to have effect notwithstanding inconsistency or incompatibility with international or other domestic law
Clause 45 defines “relevant international or domestic law” in the widest terms imaginable. It says that “regulations under section 42(1) or 43(1) are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law”.
Specifically, the regulations may override section 7A of the European Union (Withdrawal) Act 2018. This section was inserted earlier this year by the European Union (Withdrawal Agreement) Act 2020 and gives effect to the withdrawal agreement in domestic law. Clause 45 would allow ministers to disapply the direct effect of that agreement.
This is not quite the same as a Henry VIII clause which would give the minister the power to amend primary or secondary legislation by way of making a statutory instrument. It is broader and simply says that any domestic law which is incompatible with these provisions simply does not have effect.
Clause 45 now includes an additional provision designed to prevent courts in the UK extending the normal time limits during which these regulations can be challenged through judicial review or its equivalent in Scotland. This seems curious, given the government’s attempt to exclude all possible grounds of challenge. But as Lord Pannick QC said in remarks I reported here last week, it would be very surprising if the courts found that judicial review was to be excluded in all circumstances.
When will they come into force?
Under the bill as drafted, ministers could have made regulations under these clauses — once the bill had been passed by parliament and brought into effect by the government — without prior parliamentary approval. The senior Conservative backbencher Sir Bob Neill tabled an amendment under which the three clauses would not come into force until MPs had passed a resolution specifying commencement dates.
Neill was persuaded to drop this amendment after the government proposed an amendment of its own. This was approved by MPs yesterday and incorporated overnight into clause 54 of the bill. That clause now reads, in part:
(1) This Act extends to England and Wales, Scotland and Northern Ireland.
(2) This section comes into force on the day on which this Act is passed.
(3) The other provisions of this Act come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint.
(4) A statutory instrument containing regulations under subsection (3) may not appoint a day for the commencement of section 42, 43 or 45 unless—
(a) a Minister of the Crown has moved a motion in the House of Commons to the effect that sections 42, 43 or 45 may be commenced on or after a day specified in the motion (“the specified day”),
(b) the motion has been approved by a resolution of that House,
(c) a motion to the effect that the House of Lords takes note of the specified day (or the day which is proposed to be the specified day) has been tabled in the House of Lords by a Minister of the Crown, and
(d) the day appointed by the regulations is the same as or is after the specified day…
Robin Walker MP, a minister at the Northern Ireland office, called this a “break-glass” provision — one that ministers hoped they would not have to use, except in an emergency. He told MPs that the government amendment provided for “substantially the same” mechanism as Neill had proposed, with the additional requirement of a “take-note debate” in the House of Lords.
Will that help?
[Update 25 September: The Attorney General, Suella Braverman QC MP, told parliament on 24 September:
Parliamentary supremacy means that it is entirely constitutional and proper for Parliament to enact legislation, even if it breaches international treaty obligations.
It is entirely proper, entirely constitutional and lawful in domestic law to enact legislation that may operate in breach of international law or treaty obligations.]
I suggested to one leading lawyer last week that enacting these provisions — even bringing them into force — would not, in itself, breach international law. That breach would occur only when ministers made regulations that were inconsistent with the UK’s obligations.
The QC told me:
I think that passing a bill and giving ministers powers is itself a breach of international law because the government is saying to the EU that unless it acts in a particular manner we will not comply with our treaty obligations. In a private law context, for a contractual party to say that would entitle the other contracting party to go to court and seek an injunction.
Of course, other opinions are also available. The justice secretary Robert Buckland QC was accused in the Commons yesterday by David Lammy, Labour’s front-bench spokesman, of voting to betray the oath he took last year to respect the rule of law. Buckland, who had said the clauses were needed in case of any “material breach by the EU”, sounded indignant:
I have done everything that I possibly can consistent with that oath to make sure that this government act in a way that is consistent with the rule of law. That is what is happening… We do not want to see a breach in any obligations either by us or by the EU, but it would be irresponsible if we did not make those necessary preparations. That is why I am here, and that is why I will continue to be here as long as I feel able to discharge my oath, and I can tell him that, thus far, I feel very able to discharge my oath.
Buckland said that, in “preparing for a situation that we do not wish to come about, it would have been far easier for us to ignore the matter and kick the can down the road”. And yet we read in The Times today that the bill is being taken through parliament more slowly than expected and it is not intended to become law until December:
A senior government source said that if a deal could be struck ministers would immediately withdraw the clauses in the bill that allow them to potentially override the withdrawal agreement in breach of international law. “If we can reach a deal there will be no need for them,” they said.
So this is just a negotiating tactic? Brinkmanship? The government promised last week that these powers would be used only in a tit-for-tat spat.
The wider consequences
But what ministers don’t seem to have considered is the harm that has been done in the meantime.
Sir Jonathan Jones QC resigned as head of the government legal department — though, as a loyal civil servant, he appears to be working his notice. Lord Keen of Elie QC resigned as one of the government’s three law officers — and, not surprisingly, the government has not yet found a Conservative Scottish lawyer willing to replace him.
In commending Judge Korner CMG QC for election to a soon-to-be vacant judicial position at the International Criminal Court, the foreign secretary Dominic Raab said the “UK has long been an active supporter of international criminal justice”. That’s true and Joanna Korner would be excellent judge in The Hague. But the UK’s willingness to break international law won’t do anything for her chances when the states who support the court come to make their choices.
Has the government broken the law already?
That’s why it’s so unpersuasive for government supporters to say things like “we haven’t broken international law yet”; or “it’s justified if the other side are not acting in good faith”; or “it’s fine if parliament has agreed to it”. A paper from the Bingham Centre for the Rule of Law, published on Monday, argues that
the government, by introducing these clauses in the bill, and parliament, if it passes them, are not only contemplating the possibility of future breaches of its obligations in future regulations which may or may not be made, but also plac[ing] the UK in breach of its obligations under both articles 4 and 5 of the Withdrawal Agreement.
Under article 4 of that agreement, the UK agreed to enact primary legislation giving judges power to disapply any domestic law which is inconsistent with it. That legislation, the European Union (Withdrawal Agreement) Act 2020, gives rights to people in the UK in line with those in the EU.
Article 5 of the Withdrawal Agreement, headed “Good faith”, says the EU and the UK must “refrain from any measures which could jeopardise the attainment of the objectives of this agreement”. The Bingham Centre argues that the government has breached this negative obligation merely by introducing a bill that would authorise deliberate breaches of the agreement. “Parliament passing the bill containing these clauses,” it adds, “would certainly put the UK in breach of this Article 5 good faith obligation.”
What about international law more generally?
Treaties between states are like contracts between people: agreements must be kept or parties must face the consequences.
The Vienna Convention on the Law of Treaties 1969, which the UK signed in 1970 and ratified in 1971, provides in Article 26:
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
That, says the Bingham Centre, is part of English common law and so enforceable in domestic courts.
The government says that parliament is sovereign and so it can invite parliament to legislate in breach of the UK’s treaty obligations. That may be so. But such legislation does not affect the position in international law. Article 27 of the Vienna Convention says, reasonably enough:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
Lord Bingham himself had a chapter on this in The Rule of Law, a book he published in 2010 that acquires greater authority with every year that passes. As the former senior law lord wrote, “the rule of law requires compliance by the state with its obligations in international law as in national law”. He explained why:
However attractive it might be for a single state to be free of legal constraints that bind all other states, those states are unlikely to tolerate such a situation for very long and in the meantime the solo state would lose the benefits and protections that international agreement can confer. The rule of the jungle is no more tolerable in a big jungle.
The centre set up in Bingham’s honour draws on these thoughts in its conclusions:
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 still being asked by the government to legislate in deliberate breach of its treaty obligations.
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… Threatening to breach international obligations in this way is not compatible with the rule of international law: As Sir Bob Neill memorably commented in the House of Commons recently, “the rule of law is not negotiable”.
A view from the green leather benches
That’s what the academics say. But let’s give the last word to a Conservative backbencher, speaking on Monday. The MP’s remarks are worth quoting at some length:
There are three reasons why I believe that these clauses have no place in the bill. The first … is that it is unnecessary. There is an arbitration process available… The government have acknowledged the existence of the arbitration procedure, but they are saying that they would enter into that in parallel with the operation of the elements of this bill. The message, it seems to me, is very clear, which is, if we do not like the outcome of the arbitration panel, then we will break international law and we will not accept it. Yet, again, that is breaking the international treaty — an agreement that UK Government signed — because it is breaking article 175, which says that the view of the arbitration panel shall be “binding” on both parties.
However, there is not just an arbitration process available… Article 16 says:
If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures.
Clauses 41 to 45 are not necessary.
Beyond that issue, there is the question of the impact of these clauses and the government’s decision on the operation of the Belfast/Good Friday agreement. I believe that the government’s willingness unilaterally to abandon an international agreement … will lead … to some questioning the willingness of the government to fully uphold the measures in the Belfast/Good Friday agreement.
That, in turn, will lead to some communities having less willingness to trust the United Kingdom government, and that could have a consequence on the willingness of people in Northern Ireland to remain part of the United Kingdom. So far from acting to reinforce the integrity of the United Kingdom in pursuit of trying to appear to be tough to the European Union, I think the government are putting the integrity of the United Kingdom at risk.
These reasons alone should I think be sufficient for the government to abandon these clauses, but perhaps the most compelling reason is my third, which is this government’s wish to break international law and taking the powers to do so. As the Law Society and the Bar Council have said:
These provisions enable ministers to derogate from the obligations of the United Kingdom under international law in broad and comprehensive terms and prohibit public bodies from compliance with such obligations. They represent a direct challenge to the rule of law, which include the country’s obligations under public international law.
I cannot emphasise enough how concerned I am that a Conservative government are willing to go back on their word, to break an international agreement signed in good faith and to break international law…
I consider that, in introducing clauses 41 to 45, the government are acting recklessly and irresponsibly, with no thought to the long-term impact on the United Kingdom’s standing in the world. It will lead to untold damage to the United Kingdom’s reputation and puts its future at risk. As a result, with regret I have to tell the minister that I cannot support this bill.
That MP’s name? Theresa May.