Uk Internal Market Bill: Breaking International Law?

The United Kingdom Internal Market Act 2020, commonly known as the Internal Market Bill, is a piece of legislation that was passed in December 2020. The bill was designed to prevent internal trade barriers within the UK and restrict the legislative powers of devolved administrations in economic policy. However, it has been widely criticised for potentially breaching international law. The bill grants the UK government powers to override parts of the Brexit withdrawal agreement, specifically Article 4, which states that the provisions of the treaty take precedence over UK domestic law. This has led to concerns that the bill could undermine the UK's commitment to international law and damage its reputation on the world stage. While the UK government has argued that the bill is necessary to preserve the territorial integrity of the country, others have called it a power grab that undermines devolution and breaks international law.

The Internal Market Bill breaches Article 4 of the Withdrawal Agreement

The Internal Market Bill, however, grants the UK government powers to unilaterally override the Northern Ireland Protocol with respect to the exit procedures for goods moving from Northern Ireland to Great Britain, and state aid in Northern Ireland. This is a breach of Article 4 of the Withdrawal Agreement because it undermines the direct enforceability of the Withdrawal Agreement in the UK.

The Northern Ireland Secretary, Brandon Lewis, admitted to the House of Commons that the Internal Market Bill breaks international law in a "specific and limited way". He explained that the bill would give ministers powers to make regulations about state aid and customs procedures for trade from Northern Ireland to Great Britain, which would be inconsistent with the UK's obligations under the Withdrawal Agreement.

The existence of these powers in the Internal Market Bill is, therefore, a clear breach of Article 4 of the Withdrawal Agreement. This has raised concerns about the UK's approach to international law and its commitment to upholding the rules-based international order. The UK's reputation and standing in the world have been damaged as a result, and it may face litigation and financial penalties as a consequence.

The Bill gives ministers powers to make regulations about state aid and customs procedures

The United Kingdom Internal Market Bill was introduced to the House of Commons on September 9, 2020, with the primary purpose of preserving the UK's internal market post-Brexit. The bill confers 11 separate powers on Ministers of the Crown to make laws by statutory instrument. Some of these powers are described as "extraordinary" and "unprecedented".

The bill would give ministers powers to make regulations about state aid and customs procedures for trade from Northern Ireland to Great Britain. This would allow ministers to make regulations inconsistent with the UK's obligations under the Withdrawal Agreement. The existence of these powers is a breach of Article 4 of the Withdrawal Agreement, which states that the UK must use primary legislation to give full effect to the Withdrawal Agreement in domestic law.

The bill includes clauses that allow ministers to disapply or modify the application of exit procedures for goods and the effect of state aid provisions contained in the Northern Ireland Protocol. These clauses reaffirm that these clauses have effect notwithstanding any incompatibilities or inconsistencies with any relevant international or domestic law, including the EU Withdrawal Agreement and the Northern Ireland Protocol.

The bill essentially allows the UK government to unilaterally alter the effect of the treaty agreed between the EU and the UK. This has potential consequences for both domestic and international politics and diplomatic relations. It may also bring reputational problems for the UK, impacting future discussions and arrangements.

The Bill tries to place some ministerial decisions above the law

The Internal Market Bill has been criticised for trying to place some ministerial decisions above the law. The bill grants UK ministers powers to make regulations about state aid and customs procedures for trade from Northern Ireland to Great Britain, which would allow them to override parts of the Withdrawal Agreement, a legally enforceable treaty. This includes the ability to disapply or modify the application of exit procedures for goods and the effect of state aid provisions.

The bill also includes a clause that states these clauses have effect "notwithstanding any incompatibilities or inconsistencies with any relevant international or domestic law, including any provision of the EU Withdrawal Agreement and the Northern Ireland Protocol". This means that the bill would allow the government to unilaterally alter the effect of the treaty agreed between the EU and the UK.

The bill has been criticised for trying to insulate ministers from judicial scrutiny and oust the jurisdiction of the courts to review the legality of ministerial decisions. Senior members of the judiciary, including the former President of the Supreme Court, David Neuberger, have criticised the bill, with Lord Neuberger indicating that "in a situation where the right to challenge the government in court is removed, you are in a dictatorship, you are in a tyranny".

The Bill breaches the good faith clause in the Withdrawal Agreement

The Internal Market Bill (IMB) has been deemed controversial as it overrides parts of the Withdrawal Agreement, a legally enforceable treaty, and therefore breaches international law. The IMB was introduced to ensure that there are no internal barriers to trade within the UK following the end of the Transition Period.

The IMB grants the UK government powers to unilaterally override the Northern Ireland Protocol, which is part of the Withdrawal Agreement, in respect of the exit procedures for goods moving from Northern Ireland to Great Britain, and state aid in Northern Ireland. This directly contradicts the UK's obligations under the Withdrawal Agreement, which include ensuring that the provisions of the Withdrawal Agreement are directly enforceable in the UK.

The IMB's introduction could also breach the "good faith" clause in the Withdrawal Agreement. The Withdrawal Agreement is directly applicable in the UK, and all "legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in [the Withdrawal Agreement]" (Article 4(1) Withdrawal Agreement). The Northern Ireland Protocol is part of the Withdrawal Agreement, and the UK agreed to ensure that the Withdrawal Agreement would remain directly applicable in the UK through "domestic primary legislation" (Article 4(2) Withdrawal Agreement).

The IMB provides that UK ministers may "make provision about the application of exit procedures to goods, or a description of goods, when moving from Northern Ireland to Great Britain" (S42(1) IMB). This includes any exit procedure applicable by virtue of the Northern Ireland Protocol (S42(2) IMB). The IMB also allows the Secretary of State to make provisions in connection to state aid in Northern Ireland (S43(1) IMB), including expressly "disapplying or modifying" the effect of Article 10 of the Northern Ireland Protocol (S45(1) IMB).

These provisions in the IMB have been acknowledged by Brandon Lewis, the Northern Ireland Secretary, as a breach of international law, albeit in a "specific and limited way". This breach of the "good faith" clause could have reputational consequences for the UK, impacting future negotiations and its ability to require other states to adhere to the rule of law.

The Bill undermines the rule of law and the independence of the courts

The United Kingdom Internal Market Bill, passed in December 2020, has been criticised for violating the rule of law and undermining the independence of the courts. The bill, which was designed to prevent internal trade barriers within the UK and restrict the legislative powers of devolved administrations in economic policy, has been described as a “power grab” by the Scottish Government and a “full frontal assault on devolution” by Scotland's First Minister, Nicola Sturgeon.

One of the main concerns with the bill is that it explicitly sets out to break international law, undermining domestic law and the rule of law. The bill gives ministers powers to make regulations about state aid and customs procedures for trade from Northern Ireland to Great Britain, which is inconsistent with the UK's obligations under the Withdrawal Agreement. This includes the ability to override Article 4 of the Withdrawal Agreement, which states that the UK must use primary legislation to give full effect to the Agreement in domestic law.

The bill also includes a rare and controversial clause, s45(4)(g), which states that regulations made by the minister on state aid or customs declarations would have legal effect even if they contradict "any rule of international or domestic law whatsoever". This clause appears to be an attempt to prevent the courts from reviewing the legality of ministerial decisions, which is considered an affront to the rule of law and parliamentary sovereignty. The independence of the courts is further undermined by the bill's attempt to place some ministerial decisions above the law altogether.

The implications of the bill extend beyond legal and constitutional concerns. By breaching international law, the UK risks damaging its standing and reputation on the world stage, making it harder to enforce international norms and to negotiate deals with partners, including the EU. The bill also threatens to destabilise the UK's constitutional arrangements by altering the competences of devolved administrations and undermining the principle of devolution.

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