Internal Market Bill: Breaking The Law, Explained

The United Kingdom Internal Market Act 2020, commonly known as the Internal Market Bill, has been a subject of intense debate and controversy since its proposal. The bill, published on 9 September 2020, aims to ensure barrier-free trade between the four UK nations after Brexit. However, it has been criticised for potentially breaching international law and undermining devolution. The bill gives UK ministers powers to make regulations on state aid and customs procedures for trade between Northern Ireland and Great Britain, which contradicts the Withdrawal Agreement with the EU. This breach of Article 4 of the agreement has been admitted by the UK government, although they argue it is specific and limited. The bill also tries to insulate ministers from legal scrutiny and reduce the powers of devolved administrations. These aspects have been criticised by legal experts, former prime ministers, and opposition parties, who argue it damages the UK's standing and could lead to further extensive breaches of international law.

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

The UK Internal Market Bill, passed in December 2020, has been criticised for granting ministers powers to make regulations about state aid and customs procedures. This aspect of the bill has been deemed to breach international law, specifically, the Withdrawal Agreement between the UK and the EU.

The bill grants ministers the power to "'disapply' rules relating to the movement of goods, including any under the Northern Ireland Protocol, and to provide financial assistance to any person or company, potentially overriding state aid rules. The bill states that its provisions will have effect "notwithstanding any inconsistency or incompatibility with international or other domestic law". This includes any part of the Brexit deal, which "cease to be recognised and available in domestic law".

The bill's provisions on state aid and customs procedures are a breach of 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. By granting ministers the power to make regulations that could be inconsistent with the UK's obligations under the agreement, the bill breaches international law.

The bill also tries to insulate ministers from judicial scrutiny by attempting to prevent the courts from reviewing the legality of ministerial decisions under these powers. This has been criticised as an affront to the rule of law and parliamentary sovereignty.

It allows ministers to make regulations inconsistent with the UK's obligations under the Withdrawal Agreement

The UK Internal Market Bill was published on September 9, 2020, and aimed to ensure trade between all four home nations remained barrier-free after the Brexit transition period ended on December 31, 2020. The bill was drawn up to address the issue of how this could apply to Northern Ireland, which shares a border with the Republic of Ireland, remaining in the EU.

The bill allows ministers to make regulations inconsistent with the UK's obligations under the Withdrawal Agreement. This 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 grants ministers the power to decide what constitutes state aid in Northern Ireland and what goods arriving in Northern Ireland from Great Britain should be subject to customs checks.

The bill's impact on the Withdrawal Agreement was described by Northern Ireland Secretary Brandon Lewis as a breach of international law but in a "very specific and limited way". Lewis' statement was an extraordinary advance 'confession', with allegations of breaches of international law usually receiving immediate denial. The bill effectively allows the UK government to unilaterally alter the effect of the treaty agreed between the EU and the UK.

The bill also tries to place some ministerial decisions above the law. Under s45(4)(g) of the bill, regulations made by the minister on state aid or customs declarations would have legal effect, regardless of their incompatibility with "any rule of international or domestic law whatsoever". This is an attempt to prevent the courts from reviewing the legality of ministerial decisions under these powers. Such clauses are rare and rarely work, as judges consider them an affront to the rule of law and parliamentary sovereignty.

The bill breaches international law and lays the ground for more extensive breaches

The UK Internal Market Bill (IMB) has been criticised for breaching international law and laying the ground for more extensive breaches. The bill was published on 9 September 2020 and aimed to ensure trade between the four UK nations remained barrier-free after the Brexit transition period ended on 31 December 2020.

The bill gives UK ministers the power to "disapply" previously agreed rules relating to the movement of goods, including any under the Northern Ireland Protocol. It also says ministers can provide financial assistance to any person or company, which could mean it is overriding state aid rules set out in the Withdrawal Agreement.

The bill explicitly includes provisions that are incompatible with the Withdrawal Agreement and, as the government acknowledged, are illegal under international law. The Northern Ireland Secretary, Brandon Lewis, told the House of Commons that the bill would "break international law in a specific and limited way". This is because the government wants to allow ministers to decide what constitutes state aid in Northern Ireland and what goods arriving in it from Great Britain should be subject to customs checks.

The bill breaches 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 also tries to place some ministerial decisions above the law altogether. Under section 45(4)(g) of the bill, regulations made by the minister on state aid or customs declarations would have legal effect, even if they are incompatible with "any rule of international or domestic law whatsoever". This appears to be an attempt to prevent the courts from reviewing the legality of ministerial decisions under these powers.

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 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-reaching. 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.

It tries to insulate ministers from judicial scrutiny at home

The UK Internal Market Bill has been criticised for trying to insulate ministers from judicial scrutiny at home. The bill grants 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.

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 has been interpreted as 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 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. This is because judges consider them an affront to both the rule of law and parliamentary sovereignty. Indeed, the Supreme Court has stated that:

> "It is a necessary corollary of the sovereignty of Parliament, that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament."

The bill's implications for the rule of law have been criticised by senior members of the judiciary and the bar, including the former President of the Supreme Court, David Neuberger, who indicated that:

> "Once you deprive people of the right to go to court to challenge the government, you are in a dictatorship, you are in a tyranny."

The bill's potential impact on the rule of law has also been criticised by all five living former prime ministers. Theresa May, for example, asked:

> "How can the government reassure future international partners that the UK can be trusted to abide by the legal obligations of the agreements it signs?"

The bill's implications for the rule of law have also been criticised by the EU. The President of the EU Council, Charles Michel, stated that:

> "Breaking international law is not acceptable and does not create the confidence we need to build our future relationship."

The bill undermines the rule of law and democratic accountability

The United Kingdom Internal Market Act 2020, also known as the Internal Market Bill, has been criticised for undermining the rule of law and democratic accountability. The bill, which became law in December 2020, aims to prevent internal trade barriers within the UK and restrict the legislative powers of devolved administrations in economic policy. While the UK government has stated that the bill is intended to guarantee the seamless functioning of the UK's internal market, others have argued that it represents a "power grab" and a "full frontal assault on devolution".

One of the main concerns with the bill is that it breaches international law. Northern Ireland Secretary Brandon Lewis admitted that the bill would break international law, specifically the Withdrawal Agreement between the UK and the European Union, but argued that this was only in a "specific and limited way". The bill gives UK ministers the power to "disapply" or modify previously agreed rules relating to the movement of goods and state aid, which contradicts the Withdrawal Agreement and international law. This breach of international law damages the UK's standing and makes it harder for the country to enforce international norms and do deals with partners.

The bill also undermines the rule of law by attempting to place some ministerial decisions above legal scrutiny. Under Section 45 of the bill, regulations made by ministers on state aid or customs declarations would have legal effect even if they are incompatible with international or domestic law. This clause has been criticised as an attempt to prevent the courts from reviewing the legality of ministerial decisions. The UK Supreme Court has previously found that such clauses are an affront to the rule of law and parliamentary sovereignty, as they remove the ability of an "authoritative and independent body" to interpret and mediate legislation.

In addition to concerns about the rule of law, the Internal Market Bill has been criticised for undermining democratic accountability and devolution. The bill restricts the legislative powers of devolved administrations and gives the UK government spending powers in areas of devolved competence. This has been seen as a "power grab" by the UK government and a reversal of the devolution of power in the UK. The Scottish Government, for example, has stated that the bill "radically undermines the powers and democratic accountability of the Scottish Parliament". The bill was also criticised by all five living former UK prime ministers, who argued that it damaged the UK's reputation and made it harder to trust and do business with the country.

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