Where We're Going We Don't Need Laws

 
 
 

Good afternoon,

Brexit is back with a vengeance. The UK Government has proposed legislation that a Cabinet Minister admits will “break international law”. This week we look over what the reactions have been to this and what the implications of the bill could be. We also have our new In Parliament section detailing key Brexit business to look out for next week. As usual we have our recommended reading for your Friday.

Enjoy,
Jacob

In Politics

Internal Markets With External Effects

  • Internal Market Bill published

  • Cabinet Minister confirms that the Internal Market Bill “breaks international law”

  • Widespread opposition to the proposals domestically and internationally

This week started with a bang as the Financial Times published an explosive article on Sunday night alleging that the UK Government’s planned legislation, the Internal Market Bill, would override key parts of the Withdrawal Agreement. An action that would break international law, as the Withdrawal Agreement is an agreed treaty between the UK and the EU, and potentially crash the negotiations of the future relationship.

This alarmed a lot of people. On Tuesday the Conservative MP Bob Neill asked Brandon Lewis, the Secretary of State for Northern Ireland, if the proposed legislation did indeed break international law. The Cabinet Minister confirmed “this does break international law in a very specific and limited way”. A confirmation that astounded many. Meanwhile further confirming the seriousness of the matter the head of the Government’s legal department quit in opposition to the Government’s reckless behaviour.

On Wednesday the bill was published by the Government confirming concerns that the bill does break international law. On Thursday, we got the legislative timetable, confirming a truncated time period to pass the bill. As it passes through the Commons the bill will have a single day for the Second Reading to Committee Stage and have four days in a Committee of the Whole House, a process that takes place in the Commons chamber and allows all MPs to take part in the debate. However as the Institute for Government point out a standard bill would receive one week to 10 days in Second Reading to Committee stage, and a week on Committee stage to report stage. This is no standard bill and deserves significantly longer to enable full and effective scrutiny by MPs. 

It is important to note that the passage through the Lords is likely to be longer. They are very unhappy about the proposals and crucially control their own timetable. The Government can’t push it through there quickly if the Lords don’t want it to happen. They are worth watching as depending on the next actions of the Government there is opportunity for discontent to be so widespread that the Lords vote against the bill.

Opposition to the bill has come far and wide. From the Conservative side they include Theresa May, Micheal Howard the ex-party leader now a Peer, John Major the ex-Prime Minister, Roger Gale the Conservative MP for Thanet who also said that anger is widespread among MPs. Bob Neill, Tobais Ellwood, and Tom Tugenhat all expressed concerns. In Wales David Melding the Conservative Member of the Senedd resigned from the shadow cabinet. 

On the Government backbenchers the ERG believe the bill doesn’t go far enough and are potentially likely to rebel on the bill and lay down their own amendments. They feel the bill should go further and force ministers to block checks on goods going from east to west (from Great Britain to Northern Ireland). Sam Coates at Sky News reports on their potential revolt here.

On the opposition benches Labour leader Keir Starmer called the proposals “wrong”and Louise Haigh the shadow Secretary of State for Northern Ireland raised concerns, in an urgent question to Brandon Lewis, “it has been deeply concerning ahead of these talks that the Prime Minister has appeared to undermine our legal obligations”. The SNP, Liberal Democrats, Plaid Cymru, Greens, Alliance Party, and SDLP have jointly tabled an amendment against the bill. 

In Northern Ireland leaders of Sinn Fein, SDLP, the Alliance Party, and the Green Party have signed a joint letter to the Prime Minister criticising the proposals saying it would represent “a shocking act of bad faith that would critically undermine the Good Friday Agreement political framework and peace process and the UK’s ability to secure other crucial deals to protect the Northern Ireland economy.”

Civil society organisations in Northern Ireland have warned against the impact this bill will have on Northern Ireland and that the peace process and the rights of Northern Irish people should not be used as a bargaining chip in negotiations.

Kevin Hanratty, Director of the Human Rights Consortium in Northern Ireland, said that the Protocol sits “at the heart of protecting the Belfast/Good Friday Agreement and the principle of non-diminution of rights as the UK exits the EU”, and called for international law and the legal commitments already in place to be “respected and upheld.” Meanwhile, Brian Gormally, Director of the Committee on the Administration of Justice, called the Secretary of State’s statement “shocking”, and highlighted how a binding international treaty now seemed to be “at the whim of government ministers” and could be “ripped up as part of a negotiating tactic”. Paddy Kelly, director of the Children’s Law Centre in Northern Ireland expressed her “deep concerns” about the UK government’s latest move and said, “their actions threaten the peace process of all children and young people in Northern Ireland”.

The EU meanwhile has not been impressed. In a statement by the European Commission following an extraordinary meeting of the EU-UK Joint Committee, “The European Union expects the letter and the spirit of this Agreement [the Withdrawal Agreement] to be fully respected”, going on to say “Violating the terms of the Withdrawal Agreement would break international law, undermine trust and put at risk the ongoing future relationship negotiations.” The EU also rejected the UK Government’s argument that the Internal Market Bill aims to protect the Good Friday Agreement. The EU believes that it does the opposite and will “not be shy” in using legal remedies to address the Government’s plans.

Concerns about the impact of the bill have been raised further afield too. In the US Nancy Pelosi, the Speaker for the House of Representatives has said “If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress”. This is important, unlike the UK, the US Senate has to ratify international treaties with a two thirds majority. While Pelosi is the speaker in the House of Representatives, if opposition to a deal is strong among key figures across Washington this could jeopardise the Senate approving a deal.

The proposals to break international law by the UK Government have been explosive and could have significant repercussions both domestically and internationally if the bill is passed. While there is significant outrage it is possible the bill could pass. Conservative MPs might not rebel, remember 44 are needed to defeat the Government, and furthermore it is not currently known whether Labour will vote against the bill or abstain yet. If Labour abstain then the Government stands a good chance of passing the bill. Developments are likely to progress quickly especially with the short timeframe of the bills journey through Parliament. Watch this space.

In Policy

The UK Internal Market Bill

  • Several clauses of the bill break international law

  • The bill also undermines the devolved settlements

  • Potential difficulties for the courts to challenge rules made with the bill

This week the UK Government published the “United Kingdom Internal Market Bill 2019-21”. The bill itself and the related documents are available here. The Government has provided a very truncated timetable to pass this bill, as it did with the Withdrawal Agreement Bill previously, which it even admitted this week was rushed through.

The Government believes this bill is necessary in order to keep the internal market of the UK functioning correctly once the UK has left the transition period. However as the bill stands there are a myriad of issues that are created by it, as examined by the Institute for Government’s explainer.

There are several issues with the bill as it stands. Clause 42, relating to the Northern Ireland Protocol gives UK ministers the power to unilaterally disapply or modify exit summary declarations for goods that move from Northern Ireland to Great Britain.

The bill also enables a Minister to break international law when it comes to the application of state aid rules e.g. the use of public funds to support businesses. Under the protocol EU state aid rules will apply to trade between Northern Ireland and the EU.The purpose of that agreement was to ensure a level playing field and avoid the a more generous UK state aid regime which would advantage UK firms over EU competitors However Clause 43 of the bill not only gives Ministers the power to decide how these state aid rules are applied but gives the power to disapply the rules in its entirety.

A further clause of the bill, Clause 45, sets out that regulations made by Ministers using these powers are to be regarded as legally effective regardless of whether there is any incompatibility with the Withdrawal Agreement and the protocol. A key effect of this clause is it could limit the challenge of regulations made by Ministers in UK courts.

Breaking international law, of an agreement signed nine months ago, is not the only issue with this bill. The devolved administrations are increasingly concerned that this bill undermines the devolution settlements. The concerns lie in the use of principles of mutual recognition and non-discrimination to ensure the integrety of the interal market. This system could lead to a situation where products banned in one area of the UK, such as Wales, can still be sold in that area by a firm based in a different area, such as England, because of mutual recognition.

Charles Whitmore, Research Associate and coordinator of the Wales Civil Society Forum on Brexit, Wales Governance Centre, School of Law and Politics, Cardiff University, gives the following example of this “By way of example – Wales is consulting on a ban on some single use plastic products (a product requirement rule) that is wider than the similar proposals for England and therefore achieves a higher standard of environmental protection. This could lead to a situation where some products are banned in Wales, but not England. However, under these proposals, products that are not banned in England could still be sold in Wales despite restrictions applying to Welsh industry.” He has a full blog examining the various issues of this bill that are facing the devolution settlements here.

This truncated timetable of five days so far is deeply problematic for scrutiny. It prevents MPs from properly debating the details and consequences of this important bill. It also excludes the participation of civil society, business, and voters from the bill's passage. The Government should at the least provide more time for debate and enable proper parliamentary scrutiny.

In Parliament

House of Commons

Monday 14th
United Kingdom Internal Market Bill: Second Reading

Tuesday 15th
United Kingdom Internal Market Bill: Consideration in Committee (Day 1)

Fisheries Bill - Oral evidence. Further to Consider the Bill (at 9:25 am and at 2:00pm) Location: Room 14, Palace of Westminster

Seventh Delegated Legislation Committee - Oral evidence. The draft Immigration (Persons Designated under Sanctions Regulations) (EU Exit) Regulations 2020 (at 2:30 pm) Location: Room 9, Palace of Westminster

Committee on the Future Relationship with the European Union - Oral evidence. Progress of the negotiations on the UK’s Future Relationship with the EU (at 9:30 am) Location: Virtual meeting

Wednesday 16th
United Kingdom Internal Market Bill: Consideration in Committee (Day 2)

Northern Ireland Affairs Committee - Oral evidence. Brexit and the Northern Ireland Protocol (at 9:30 am) Brandon Lewis Location: Virtual meeting

Liaison Committee (Commons) - Oral evidence. Oral evidence from the Prime Minister (at 3:30 pm) Boris Johnson Location: The Boothroyd Room, Portcullis House

Thursday 17th
Fisheries Bill - Oral evidence. Further to Consider the Bill (at 11:30 am and at 2:00pm) Location: Room 14, Palace of Westminster

Welsh Affairs Committee - Oral evidence. Brexit and trade: implications for Wales (at 9:30 am) Location: Room 5, Palace of Westminster

Friday 18th
The House will not be sitting

House of Lords

Monday 14th
Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee stage (day 3)

Tuesday 15th
Agriculture Bill - Report stage (day 1)

Wednesday 16th
Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee stage (day 4)

Draft European Structural and Investment Funds Common Provisions and Common Provision Rules etc. (Amendment) (EU Exit) (Revocation) Regulations 2020

Thursday 17th
Agriculture Bill - Report stage (day 2)

In Events

UK in a Changing Europe - Brexit: six months of stalemate

  • Date: Wednesday 16 September

  • Time: Midday - 1.15pm

Join the UK in a Changing Europe at this Isolation Insight webinar to discuss the latest state of play of the Brexit negotiations and the challenges ahead. 

Speakers are:

  • Stefaan de Rynck, Senior Adviser to Michel Barnier, European Commission

  • Katya Adler, Europe Editor, BBC

  • Bruno Waterfield, Brussels Correspondent, The Times

  • Anand Menon, Director of UK in a Changing Europe

  • Chair: Jill Rutter, Senior Research Fellow of UK in a Changing Europe

Tickets available here

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