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Sun 25 October 2020
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Stephen Delahunty reports on the concerns of senior public lawyers about the disputed Internal Market Bill

In an attempt to twist the arm of the European Union in Brexit negotiations, the UK Government has introduced the Internal Market Bill – legislation that abandons convention in a way that not only breaches the UK’s international obligations, but also undermines parliamentary sovereignty, the rule of law, and what little moral authority the Government had left to govern during the COVID-19 crisis.

Lawyers, including a former Attorney General and the former President of the UK Supreme Court, joined an urgent meeting this week to enable the Bars of England and Wales, Scotland and Northern Ireland to discuss the serious challenges to the rule of law raised by the controversial Bill.

Hosted by the International Bar Association, some of the UK’s current and former top legal minds agreed that without a rule of law ground in constitutional principle, the UK may appear free, but its institutions will not function independently, its lawyers and civil servants will be subordinated, and its parliament weakened. Public trust will be irreparably damaged, they suggested.

Clause 45 of the Internal Market Bill attempts to prevent any legal challenge to the powers it grants to ministers, which extend to the movement of goods across the Irish Sea, regulations for domestic law, and state aid.

The Bill allows the UK to modify the Withdrawal Agreement signed with the EU last year, by aligning Northern Ireland customs rules more closely with the rest of the UK.

In addition, the Bill gives ministers the power, not only to interpret the Protocol, but to disapply or modify its effect – allowing the UK to change or eliminate EU state aid rules, which under the Protocol would apply to Northern Ireland and, in some circumstances, to the whole of the UK.

A Government minister, in effect, would be given the power to nullify a treaty obligation entered into by the UK Government, infringing on the right of individuals to challenge the Government in court when it has done something wrong under its international commitments.

“Once you have breached that right you are in a dictatorship; you are in a tyranny,” said Lord David Neuberger, former President of the UK Supreme Court. If the Bill passes, he explained, it will allow ministers to introduce regulations insulated from judicial review.

Neugerger further noted that the Government cannot expect individuals to obey the laws it has introduced to tackle the Coronavirus crisis, while simultaneously breaching its own legal obligations.

“Why obey the law if the Government is going about its legislative purpose in the cavalier fashion it’s adopted here?,” said former Attorney General and ex-Conservative MP Dominic Grieve.

“As we don’t have a written constitution, if we don’t observe conventions, and in such an apparent abandon, it’s a descent into a degree of chaos, or worse still, a disregard for legal norms under which society will no longer be able to be reassured that rule of law is observed,” Grieve added.


Devolution Disaster

Lawyer and SNP MP for Edinburgh South West, Joanna Cherry, outlined the implications of the Bill for the UK’s devolved settlements. Earlier in the week, the Scottish Government voted to withhold its consent for the Bill – saying it overrides devolved powers – setting up another constitutional standoff.

While the UK Government has indicated it will proceed anyway, Nicola Sturgeon’s administration has hinted it will take Boris Johnson’s Government to court.

“This Bill introduces new principles in the settlement, providing the UK Government with broad cross-cutting powers to allow ministers to enforce internal market provisions across areas which hitherto have been devolved,” Cherry said.

“At least EU internal markets are set by intergovernmental negotiation, qualified majority voting and a large role for judicial review,” she added. “These new internal market rules will be set by Westminster with no obligation to get the consent of devolved parliaments.”

Critics of the Bill are also concerned about the rule of law in Northern Ireland. Reports suggest that republican and loyalist paramilitary groups are using the UK’s departure from the EU as political cover to re-ignite their once-dormant campaigns of terrorism.

More than 80 people were attacked by paramilitaries between July 2018 and June 2019, and the Independent Reporting Commission found that the vacuum created by the absence of devolved government in Stormont and uncertainty over Brexit are making the task of peace-building “immeasurably more difficult”.

Proponents of the Bill claim the Government is acting within the law, because the EU has behaved in “bad faith”. However, Grieve says there is absolutely no evidence of that being the case.

“It’s [the Bill] being used as leverage in negotiations and that is undoubtedly an act of bad faith by the UK,” he said.

Baroness Helena Kennedy, meanwhile, questioned the dishonesty of a Government signing its “oven ready” Brexit deal, using it as the primary policy during an election campaign, only then to tear it up.

“[The law is] something that protects us all, and we have to make sure it’s used for that, she said. “Not in ways that are punitive and terrible.”


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