Brexit and the waning days of the United Kingdom

[Tamas]

From the initial comments on the new Internal Market Bill, it sounds like a full-blown Enabling Act for government, making the breach of the WA just the second worst part of the bill....

Our de facto PM is a frustrated humanities graduate who believes his genius is underappreciated by society. He is going to do a lot of damage before we get rid of him.

[Sheilbh]

From the initial comments on the new Internal Market Bill, it sounds like a full-blown Enabling Act for government, making the breach of the WA just the second worst part of the bill....

How?

I mean it's mainly doing lots of stuff that the Single Market does at an EU level at a national leve:
https://www.instituteforgovernment.org.uk/explainers/internal-market-bill

It is crazy that basically all the EU functions are going to Westminster rather than involving the devolved administrations

[Josquius]

John Majors comments again show how the past few years he really has shown himself to be quite an excellent ex pm.

[Zanza]

From the initial comments on the new Internal Market Bill, it sounds like a full-blown Enabling Act for government, making the breach of the WA just the second worst part of the bill....

How?

I mean it's mainly doing lots of stuff that the Single Market does at an EU level at a national leve:
https://www.instituteforgovernment.org.uk/explainers/internal-market-bill

It is crazy that basically all the EU functions are going to Westminster rather than involving the devolved administrations

This piece was interpreted as creating an unchecked power for government:

[Sheilbh]

Yeah I saw that doing the rounds on Twitter - this blog from a public law professor is quite helpful because that section of law is 45(4), which he discusses. That section is about the bits of the bill that breach the WA and stopping judicial review, it's about interpretation:
https://publiclawforeveryone.com/2020/09/09/the-internal-market-bill-a-perfect-constitutional-storm/

The Internal Market Bill – A Perfect Constitutional Storm

The willingness of the UK's Brexiteer-led Government to pick fights with the European Union is a given. So too, now, is its appetite for a show-down with the courts, as the recently launched review of administrative law attests. It is therefore perhaps no surprise that the Government, via the United Kingdom Internal Market Bill, has chosen to combine these two preoccupations by provoking an inevitable confrontation with the EU and a likely confrontation with the UK courts.

In the last few days, Ministers doing the media rounds have generally been circumspect as to the legal implications of the Bill — suggesting, for instance, that it is little more than a tidying-up exercise that addresses loose threads in the Withdrawal Agreement and Northern Ireland Protocol. In contrast, Brandon Lewis, the Northern Ireland Secretary, has acknowledged that the Bill would breach international law. While that concession appeared remarkable at the time, it is clear, now that the text of the Bill has been published, that for the Minister to have said otherwise would have caused him to mislead Parliament. For whatever spin other Ministers may have attempted to apply to this matter, there can be no doubt that the Bill, if enacted, would flagrantly breach the UK's obligations under international law. It does so in two principal ways, each of which is buttressed by two sticks of constitutional dynamite buried in a clause towards the end of the legislation. (This is to say nothing of the implications of the Bill for the UK's territorial constitution: a matter on which I do not touch in this post, but which, in itself, is profoundly constitutionally significant.)

Clauses 42 and 43

First, clause 42 addresses exit procedures: that is, procedures relating to the movement of goods from Northern Ireland to Great Britain, through the customs frontier for which the Withdrawal Agreement provides (and which Theresa May had rejected, saying that no UK Prime Minister could sign up to such an arrangement). The inclusion of these arrangements in the Withdrawal Agreement cannot possibly have taken anyone by surprise, given that this very issue dominated political discourse in the UK for many months last year. Critically, clause 42 authorises UK Ministers to disapply exit procedures that are required by the Northern Ireland Protocol, which forms part of the Withdrawal Agreement. It is therefore crystal clear that clause 42, if enacted, would permit the UK Government to set aside relevant parts of the Protocol — and that this would be a clear breach of the international law obligations into which the Government entered when it negotiated the Withdrawal Agreement less than a year ago.

Second, clause 43 deals with state aid: that is, the use of public funds to support businesses. Article 10 of the Northern Ireland Protocol makes certain provisions of EU law concerning state applicable to the UK in respect of trade between Northern Ireland and the EU, the point being to ensure that a level playing field is retained by precluding a more generous UK state aid regime from advantaging UK firms relative to EU competitors. However, clause 43 drives a coach and horses through this part of the Protocol by authorising the Secretary of State to make regulations not only concerning the interpretation and modification of the application of Article 10, but entirely disapplying it. As with clause 42, there can be no doubt whatever that clause 43, if enacted, would authorise the Government to breach the UK's international obligations under the Protocol.

Constitutional dynamite

The constitutional dynamite alluded to above is found in clause 45. Here, two points are particularly noteworthy. First, this provision hammers home the fact that the arrangements set out in clauses 42 and 43, and the regulations that can be made by Ministers exercising powers under those provisions, are to be regarded as legally effective notwithstanding any incompatibility with (among other things) the Withdrawal Agreement and the Northern Ireland Protocol. If there was any room for doubt (which there is not) that clauses 42 and 43 set out to authorise Ministers to breach international law obligations, any such doubt is entirely removed by clause 45.

However, it goes further than this. Clause 45 also provides that regulations made under clauses 42 and 43 are to have effect if they breach the law deriving from the Withdrawal Agreement to which s7A of the EU (Withdrawal) Act 2018 gives direct effect and upon which it confers supremacy. Clause 45 thus not only resiles from specific provisions of the Northern Ireland Protocol: it also makes inroads into a fundamental legal feature of the 2018 Act which was inserted into it by the EU (Withdrawal) Agreement Act 2020 in order to give effect to a basic architectural aspect of the Withdrawal Agreement itself. In particular, Article 4 of the Withdrawal Agreement provides that certain provisions of the Agreement and of EU law 'shall produce in respect of and in the United Kingdom [after Brexit] the same legal effects as those which they produce within the Union and its Member States'. Clause 45 of the Bill is flatly inconsistent with this key aspect of the Agreement. In this way, clause 45 lays bare the UK Government's willingness to weaponize parliamentary sovereignty in order to renege not just on specific commitments but to undermine the broader legal scheme of the Withdrawal Agreement. The crossing of this Rubicon in respect of exit arrangements and state aid will doubtless prompt the UK's 'friends and partners', as the Prime Minister likes to call them, in the EU27 to wonder: 'What next?'

The second stick of constitutional dynamite found in clause 45 concerns judicial review. Clause 45 provides that regulations made under clauses 42 and 43 'have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent'. The definition of 'relevant international or domestic law' is nothing if not comprehensive. As well as including obvious candidates such as that Withdrawal Agreement, the Northern Ireland Protocol and EU law, it extends to international law, certain EU- and Brexit-related UK legislation and 'any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal'. Attempting to immunise secondary legislation, such as regulations made under clauses 42 and 43, against challenge on such a broad range of grounds is extraordinary, and rams home the point that the Government is seeking to ensure that Ministers are equipped to breach international law. But the reference to 'any ... rule of ... domestic law' is also striking and can certainly be read as an attempt to exclude any judicial review on normal domestic law or human rights grounds of regulations made under clauses 42 and 43.

It is difficult to predict with certainty whether a UK court would be prepared to conclude that clause 45 ousted judicial review in this way. It might, for instance, be argued (in line with the Anisminic case) that saying, as clause 45 does, that regulations 'made under' clause 42 or 43 have effect notwithstanding incompatibly with any rule of domestic law is insufficient to oust judicial review because clauses 42 and 43 should not, in the first place, be read as authorising regulations that breach judicial review principles — meaning that regulations that do breach those principles are not 'made under' the relevant clauses. It is also possible that, in line with some judicial comments in the Privacy International case, a court might be prepared to say that Parliament cannot entirely oust judicial review — thus seeking to address the weaponisation of parliamentary sovereignty head on by denying it. That, however, would be a very unwise step for a court to take, particularly at the present time — not least because it would precipitate precisely the fight with the judiciary for which the Government has been spoiling since it lost the prorogation case last year.

A perfect constitutional storm

The Internal Market Bill thus sets the scene for a perfect constitutional storm: a confrontation with the EU, a stand-off with the courts, a fundamental attack on the rule of law, and a diminution of the UK's commitment to the rules-based international order. Any suggestion that rule of law is not threatened by the Bill — whether because, as the Northern Ireland Secretary claimed, the breach of international law is 'specific and limited' or because international law is somehow different — is simply unsustainable. Respect for the rule of law includes respect for international law — as the UK Ministerial Code used to make explicitly clear and as is still, as the Court of Appeal has held, implicitly clear in the current iteration of the Code. The promotion by the UK Government of a Bill that expressly breaches the UK's international obligations is thus nothing short of extraordinary. The Head of the Government Legal Department resigned yesterday. The Lord Chancellor, whose role as a constitutional guardian of the rule of law is recognised by statute, must surely now consider his position.

I am grateful to Jack Williams of Monckton Chambers for comments on an earlier draft of this post.

[Tamas]

The UK government will attempt to negotiate up to 27 bilateral deals to receive information on criminals and terrorists if the EU continues to refuse to allow access to a major crime-fighting database, the home office's most senior official said today.

Entrance to the Schengen Information System (SIS II), a huge EU database, will end at the end of the year unless there is a major breakthrough in negotiations, the Home Office's permanent secretary Matthew Rycroft told MPs.

The EU has said it is legally impossible for non-EU countries not respecting free movement of people to access the database , where police across the continent share millions of pieces of information on criminal suspects, and has proposed more basic information sharing.

Obviously all 27 member states are trembling with anticipation to break EU rules to let the UK still have access to the database.

[Josquius]

Echos of 4 years ago when the brexiters were absolutely convinced the EU countries would be turning on each other and fighting to be first to break ranks.

[The Brain]

The EU has said it is legally impossible for non-EU countries not respecting free movement of people to access the database

Sorry, this means nothing to the Johnson government.

[Sheilbh]

Former Tory leader and Brexiter, Lord Howard has also come out very strongly against "specific and limited" breaches of the law. I think that's every former Tory leader with the exception of Cameron (Eton ties are very strong).

[Richard Hakluyt]

Let us remind ourselves of what Max Hastings said about Johnson last year :

https://www.irishtimes.com/opinion/i-was-boris-johnson-s-boss-he-is-utterly-unfit-to-be-british-prime-minister-1.3936109

Hastings is well right of centre of course, but a decent human being not a posturing narcissist.

[Sheilbh]

Let us remind ourselves of what Max Hastings said about Johnson last year :

https://www.irishtimes.com/opinion/i-was-boris-johnson-s-boss-he-is-utterly-unfit-to-be-british-prime-minister-1.3936109

Hastings is well right of centre of course, but a decent human being not a posturing narcissist.

And Howard fired Johnson for lying as well.

There is a weird historical echo here with de Valera. He spent years criticising his predecessor for agreeing a treaty that failed to deliver the ultimate freedom, but the "freedom to achieve freedom" and created the border in the island of Ireland. But after vehemently criticising it Dev basically came to power within its constraints. Then he spent years unilaterally abrogating most of the treaty that made Ireland a dominion which came to a peak in unilaterally declaring a Republic during the abdication crisis (when the monarchy technically had to ask for approval from all the dominions and Ireland basically replied "we're a Republic now" ) and the UK didn't accept that Ireland was a republic or negotiate a new arrangement until 1948.

[The Larch]

Was it mentioned already that the Internal Market Bill is also ruffling feathers with Scotland and Wales, as it apparently also conflicts with devolved powers?

Plan for post-Brexit UK internal market bill 'is an abomination'
Scottish and Welsh leaders say proposed bill undermines their powers and is 'an attack on democracy'

The UK government's internal market bill is "an abomination which would cripple devolution", Nicola Sturgeon has said, escalating already fierce criticism of the proposals from across the devolved administrations.

Earlier the Welsh government described Westminster's plans for a post-Brexit UK-wide internal market as "an attack on democracy and an affront to the people of Wales, Scotland and Northern Ireland".

The Plaid Cymru leader, Adam Price, said the bill signified "the destruction of two decades of devolution", while Scottish Labour's Alex Rowley described it as "a farce that threatens the very foundations of the United Kingdom".

Later in the day David Melding quit the Tory frontbench in the Senedd over the proposals and launched a withering attack on Boris Johnson.

Stepping down as shadow counsel general, Melding said: "The publication of the internal market bill had done nothing to lessen my anxieties about the dangers facing our 313-year-old union and indeed they have been gravely aggravated by the decisions made in the last few days by the prime minister.

"I feel it is necessary to speak out against what I consider to be a lack of statecraft at this crucial time for the UK's very survival as a multi-national state."

The internal market bill, which sets out trading arrangements across the UK after the transition period, also includes clauses which negate key aspects of the EU withdrawal agreement – and which the UK government on Tuesday conceded breaks international law.

In a strongly worded statement following the publication of the draft bill at lunchtime, Sturgeon said: "The UK government are not only set to break international law – it is clear they are now set to break devolution."

Sturgeon pledged that her government would "fight tooth and nail" against proposals that include a mutual recognition regime, requiring regulatory standards in one part of the UK to be automatically accepted in others, and which she argued would mean "a race to the bottom when it comes to things like food standards and environmental protections".

She said plans would prevent the Holyrood parliament from effectively legislating in a whole range of areas and could, for example, lead to Scotland being forced to accept chlorinated chicken.

Jeremy Miles, the Welsh counsel general and minister for European transition, told the Guardian the bill in its current form had "no prospect" of getting Senedd consent. "The question is if they don't get that consent whether they will proceed regardless", he said.

Describing the proposals as "an outrageous power grab", he reiterated that the "cavalier" bill "seriously imperils the devolution settlement".

In an indication of how the devolved administrations are cohering in opposition to the plans, Nichola Mallon, the SDLP deputy and minister for infrastructure, tweeted that she was "extremely concerned at the actions of the British government" and had discussed attempts to undermine devolved power on infrastructure with Scottish government counterpart Michael Matheson.

The Welsh government also accused Westminster of failing to consult them adequately. Miles said: "We didn't have access to the bill until late last night. Whatever your view about the merits of it, if you're going to put forward a bill which cuts into devolution then plainly anything that is encroaching on devolved territory needs to be discussed and agreed. That has absolutely not happened".

There are also profound concerns about a proposed oversight body that would hold any new devolved bills to a "market impact test", which the Scottish government believes would have jeopardised Scotland-only initiatives such as free university tuition.

Sturgeon said: "Under this bill, the Scottish parliament would not have been able to pass its world-leading legislation on minimum unit pricing of alcohol – a fact which will deeply concern the broad coalition of Scottish civic society which backed this vital public health measure."

The Welsh and Scottish governments wrote to Michael Gove setting out their concerns in July, when the proposals first emerged, warning they would put Scotland and Wales on a collision course with Westminster. Sources at the time reported a more aggressive approach towards devolution from a new generation of Conservative politicians.

But Downing Street denied the bill was a "power grab", insisting there would be no change to the powers already held by the devolved administrations and highlighting that additional powers would be returned post-Brexit in "at least 70" policy areas.

Speaking after prime minister's questions, Johnson's spokesman said: "What the devolved administrations will enjoy is a power surge when the transition period ends in December.

"There will be no change to the powers that the devolved administrations already have and the vast majority of powers with devolved competencies returning from Brussels will go straight to Holyrood, Stormont and Cardiff Bay."

[Josquius]

OK. What just happened to the pound? It fell off another cliff. Its like that episode of the simpsons with homer on a skateboard but in slow motion.

[Sheilbh]

Lord Lamont - another very strong Eurosceptic and Brexiter - has also strongly condemned plans to breack our commitments. From what I can see reported chances are this will pass but I think it'll be close/near death and there'll be some very narrow votes on  some sharply drafted amendments in the Lords and Commons.

At the same time Cummings has apparently been roaming round DCMS asking about how to make a £1trillion British tech company and moaning about Deep Mind being sold to Google (I agree with him there). I always thought a deal would be difficult, because the politics of no deal are better. But I still find it weird that, after all the fears of Singapore on Thames and deregulation the UK and EU have apparently more or less agreed on labour rights, consumer rights, environmental regulations etc (these have just not come up as issues), and the actual sticking point is a desire for state capitalism in the tech sector (And fisheries - but fisheries is an issue in every trade deal.)

[Tamas]

Lord Lamont - another very strong Eurosceptic and Brexiter - has also strongly condemned plans to breack our commitments. From what I can see reported chances are this will pass but I think it'll be close/near death and there'll be some very narrow votes on  some sharply drafted amendments in the Lords and Commons.

At the same time Cummings has apparently been roaming round DCMS asking about how to make a £1trillion British tech company and moaning about Deep Mind being sold to Google (I agree with him there). I always thought a deal would be difficult, because the politics of no deal are better. But I still find it weird that, after all the fears of Singapore on Thames and deregulation the UK and EU have apparently more or less agreed on labour rights, consumer rights, environmental regulations etc (these have just not come up as issues), and the actual sticking point is a desire for state capitalism in the tech sector (And fisheries - but fisheries is an issue in every trade deal.)

Maybe it would make more sense if you accepted that the government and thus the country is yanked around by Dominic Cummings and his petty issues.

Also at this point what we have already agreed with the EU holds little to no value as a reference on what the government is ok with, as evidenced by their Irish issue.