Internal Markets Bill declares itself above the law
The determination of the UK Government to override inconvenient provisions of the EU Withdrawal Agreement in order to achieve its desired UK internal market has been revealed with the publication today of the United Kingdom Internal Market Bill.
The bill purports to underpin the free movement of goods from one part of the UK to another by providing that if goods can be lawfully sold in the part of the UK where they are produced, they should be able to be sold in any other part of the the UK "free from any relevant requirements that would otherwise apply to the sale".
It has been attacked by the devolved governments as undermining the devolution settlements. Its particular conflict with the EU Withdrawal Agreement arises because that Agreement contains special provisions for Northern Ireland, designed to maintain an open border with the Irish Republic, which remains an EU member state, and thereby safeguard the Good Friday Agreement.
Prime Minister Boris Johnson in the House of Commons today, however, claimed that the bill would further the Good Friday Agreement. But the Withdrawal Agreement was itself designed to protect the Good Friday Agreement, at the EU's and the Irish Republic's insistence.
That would inevitably lead to Northern Ireland being subject to some rules that are different from the rest of the UK, and to the need for some checks on goods passing to and/or from Northern Ireland to the UK as part of the framework of controls of goods entering and leaving the Irish Republic.
However the bill:
- declares the need "to respect Northern Ireland's integral place in the United Kingdon's internal market", and "to facilitate the free flow of goods between Breat Britain and Northern Ireland" (clause 40);
- prevents any "appropriate authority" from bringing in any new checks or controls on Northern Ireland goods destined for the rest of the UK (clause 42); and
- allows the Secretary of State to make regulations interpreting, misapplying or modifying the effect of article 10 (state aid) of the Northern Ireland Protocol, for the purposes of domestic law (clause 43).
Further, clause 45 declares that sections 42 and 43, and regulations made under them, shall have effect "notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent" – and goes further in attempting to declare them incapable of challenge "on the grounds of any incompatibility or inconsistency with relevant international or domestic law", defined as including any provision of the EU Withdrawal Agreement, any other EU law or international law, and "any other relevant legislation, convention or rule of international or domestic law whatsoever," including any court order or judgment.
The bill has already believed to have been the cause of the resignation of Sir Jonathan Jones, the head of the UK Government legal service, and has led to calls for law officers including Advocate General Lord Keen of Elie QC, and Lord Chancellor Robert Buckland, who is under a statutory duty to uphold the rule of law, to consider their positions.
The Ministerial Code applying to UK Government ministers also requires them to observe the rule of law; there have been claims that this only applies to domestic and not international law, but the Court of Appeal ruled to the contrary in a 2018 decision.
In the House of Commons yesterday, Northern Ireland Secretary Brandon Lewis admitted that the bill would breach international law "in a specific and limited way". Indications from the EU are that it will not regard the matter so lightly: Commission President Ursula von der Leyen has so far tweeted: "Very concerned about announcements from the British Government on its intentions to breach the Withdrawal Agreement. This would break international law and undermines trust."