The House of Lords have blocked the Internal Market Bill, with peers voting overwhelmingly against a section of the bill which would allow ministers to break international law.
The origins of the Internal Market Bill dates back to 1706 when the union between England, Wales and Scotland was formed and an internal market was created to ensure open and unhindered trade across all nations within the United Kingdom.
After joining the EU, most of these trade laws were replaced by the EU internal market laws. However, with Brexit just a few months away and, as Prime Minister Boris Johnson has acknowledged himself a no deal scenario looking likely, the question arises as to what will happen with trade regarding the four nations.
If a deal is not reached by the end of the transition period (1st January 2021) and the devolved administrations are no longer bound by the common EU trade laws, devolved nations could essentially set different trade restrictions and regulations, hindering trade across the union.
For example, the lamb farmed in Wales may not be eligible to be sold in Scotland if the regulations are of a higher standard.
To bridge this gap, the government have proposed the Internal Market Bill. Which is exactly what it says on the tin- the creation of a market internally within the four nations of the United Kingdom. If passed, the bill would ensure that common trade rules will still be applicable to the whole of the UK in a no deal scenario. It will ensure no nation is limited by regulations and guarantees the international community has access to the UK as a whole.
However, the bill has encountered both international and internal opposition.
The UK, under international law, is required to ensure goods entering Northern Ireland from England after the transition period are checked to be up to EU trading standards. This ensures no hard border is required between NI and Ireland, which could cause political instability due to the sensitive history between the countries, thus posing a threat to the Good Friday agreement. This was all negotiated, agreed and signed by UK ministers last year under the Northern Ireland Protocol- a protocol within the Withdrawal Agreement.
The Internal Market Bill explicitly contradicts the Northern Ireland Protocol as it means that all devolved nations will be obliged to set their standards to whatever is agreed by Westminster and goods will be entitled to freely move around the union.
This means trade will no longer be able to pass through Northern Ireland and Ireland without being checked which raises many questions surrounding how the goods will be checked and whether it will reignite the political instability seen before.
Ultimately, this is illegal under international law. Ministers will have the power to disapply the Northern Ireland protocol and other rules relating to the movement of goods. The bill also specifically says that this ‘cannot be deemed unlawful based on international incompatibility’ – limiting powers to challenge regulations made in court.
However, another important issue with the bill that isn’t getting a lot of coverage concerns the impact the bill will have on devolution within the four nations. The internal market will be regulated and controlled by the Union parliament- this happens to be, de facto, the English parliament.
This means that some powers that currently lie with local administrations in Scotland, Wales and Northern Ireland will be stripped back and handed to Westminster- allowing them to enforce internal market provisions across these areas with no obligation to get the consent of devolved parliaments. This raises serious constitutional questions.
Despite safely passing the commons, the House of Lords issued a motion to regret and on the 9th of November blocked the bill from passing without an amendment that stripped the bill of the key law-breaking clauses. This is instrumental for the Lords, who have only blocked three bills since 1999.
Often branded as ‘unelected’ and ‘unaccountable’, the bill blockage highlights the benefits that come with having an analytic branch of the legislature that is not under pressure to tow the party line and obey the whip. It raises the question, if an unelected House block an illegal bill, is this helping or hindering democracy and the rule of law?
The governments reaction to the bill has not been to deny any illegality. Quite the opposite. Brandon Lewis, the Northern Ireland Secretary, acknowledged himself in the House of Commons that “it does break international law” but only in a “specific and limited way”.
The government has also implied that as Canada has broken international law in the past and has cited various examples where EU has acted in breach of international law, then it is acceptable for the UK to do so.
And the Lords aren’t the only ones expressing concern over the bill- a combination of political, judicial and even religious figures have spoken out to condemn it.
Five former prime ministers have spoken out against proposals, including Conservatives such as Theresa May, David Cameron and Sir John Major.
The EU has confirmed they are taking the UK to court.
Joe Biden has expressed his disapproval and confirmed that he would not sign a trade deal with the UK unless key clauses were removed.
The countries top lawyers and a vast range of influential judicial figures, including former supreme court judges, have warned it is “quite extraordinary and very worrying” and said if the bill passes we will be in a “dictatorship”.
In an extremely rare move, the most prominent religious leaders within the UK wrote a joint letter in the Financial Times raising concerns about the potential impact the legislation could have on peace and stability within Ireland.
It could also be distressing for civil servants who are concerned they will be in breach of their Civil Service Code’s requirement to comply with the law.