The Internal Market Bill: Implications Within and Outwith the Union

The Internal Market Bill was introduced to the House of Commons on September 9th, and has subsequently led to intense debate within Westminster, fuelling profound opposition from non-conservative members and, notably, impassioned Tory infighting. The infant Bill, which has passed through the House of Commons, is a threatening political move on various dimensions.

As the UK prepares for the end of the Brexit transitionary period, a legal gap is formed: members of the Union will no longer be uniformly bound or united by EU legislation. This gap implies the ability for England, as well as the devolved powers of Northern Ireland, Scotland, and Wales to legislate on some matters independently. This creates the potentiality for trade and commerce to undergo major adjustments as border checkpoints and customs frameworks, for example, would have to be implemented between Union territories if there are differing standards for goods. The Johnson ministry had stated vehemently that the Withdrawal Agreement would not impose trade restrictions of such scale between members of the Union. As these assertions were unfounded by any provisions in the Agreement, The Internal Market Bill was proposed as a ‘solution’ to this gap in the law, aiming to remove trade barriers on their terms.

The Bill was sponsored by Business Secretary Alok Sharma

However, the question arises as to how this will manifest in Northern Ireland as it shares a border with the Republic of Ireland, which will remain an EU member-state. The original Withdrawal Bill, in this respect, was intended to protect the Good Friday Agreement and to avoid a hard border on the Irish Island. This concern has been raised internationally as well, as US Speaker of the House Nancy Pelosi warned, in relation to the Bill, to “not count” on US-UK bilateral trade agreements if the Good Friday Agreement is broken. It could be possible, however, that this narrative is a way to ‘blackmail’ the European Union. Even if it does not come into force (as could be predicted from the Bill’s explosive nature), it would give Westminster the opportunity to villainise the EU yet again and deflect blame: making the association between the increased checks and balances on the Irish border and lack of EU leniency would be a natural next step for the proposers of a failed Internal Market Bill.

The Bill enumerates two ways in which the UK government plans to break international law. Though Johnson has argued the interests of Northern Irish unionists are at the heart of the Bill, this is not the case. The fact that the Bill would permit the UK to waive exit summary declarations, for example, has minimal positive effects on businesses in Northern Ireland. Further, Article 10 of the protocol entails that EU state aid law would apply to measures affecting “trade between Northern Ireland and the [European] Union”. Johnson has stated that the “government misunderstood the agreement” when it was signed, and through Article 10 it seems that only recently has the realisation been made that the aforementioned trade measure means UK-wide business operations would be included and subject to EU regulations. The Bill empowers ministers to legislate according to their own interpretation, which yet again point towards Johnson’s governmental interests leading the decision-making process, not the desire to protect Northern Irish trade.

More specifically, the Bill’s contents override the Withdrawal Agreement as it gives Ministers the ability to break its Northern Ireland Protocol, and are at odds with EU direct effect measures. Thus, it is of no surprise that the European Commission promptly began legal enforcement action procedures against the UK for this Internal Market Bill on October 1st. The legal enforcement measures were triggered by the European Commission as it is in search of compliance with Article 5 of the Withdrawal Agreement, which lays out that the UK should act in good faith, in ways which support the objective of the Agreement in the first place. Clearly, parliamentary actions seeking to override a protocol of the Agreement do not amount to acts committed ‘in good faith’. As echoed by various media outlets and Johnson’s own MPs, this should not be taken lightly. A premeditated and conscious breach of international law will damage not only the UK’s reputation and its bargaining power when it comes to EU negotiations, but threatens to weaken the sanctity of International Law as a whole.

Even with the omission of the ‘good faith’ clause, the Bill would still be in violation of one of the most basic, essential, and general principles of international law: pacta sunt servanda. Simply, an agreement made must be an agreement kept. International Law does not have a governing body and rests upon customs, state practice and, in basic terms, governmental beliefs. A breach of an international agreement by a large international player, with veto right in the UN Security Council and considerable economic power globally, weakens systems of accountability on a monumental scale and is a step backwards in the evolution of International Law, tarnishing any existing trust between the guilty party and its enforcers. Although this is not the first time the UK has infringed upon International Law and its principles, the blatant acceptance of this by the Johnson premiership has much to say about the credibility of the government’s ‘justifications’ for the Bill.

On another level, this piece of legislation is a direct contradiction to the Sewel Convention, a keystone element of the devolution settlement. Jeremy Miles, Brexit Minister in Wales, commented that the Bill “represents a direct attack on the current model of devolution” and is emasculating to the current rights of the devolved institutions. Painted in this light, the Bill is diluted to a powerplay and a dangerous attempt towards the recentralisation of power, as Westminster would have a newfound control over the standards of goods and services, as well as agricultural and environmental policies. Although not explicitly a new unionist strategy, it could be seen as such, as Scotland, Wales, and Northern Ireland would have to accept goods as dictated by Westminster: a future which Food Standards Scotland has already expressed severe concerns about.

The Bill, sponsored by Secretary Alok Sharma and Lord Callanan and proposed by Boris Johnson, has received stark criticism from former Prime Ministers from both sides of the aisle: Theresa May, David Cameron, Gordon Brown, and Tony Blair. It marked the 6th resignation from a senior civil servant in 2020, as Johnathan Jones, Head of the UK’s legal department quit over the implications of the Bill. Nevertheless, it made its way to the House of Lords, where the government does not hold a majority, which makes room for several predictions. However, as the divorce between the UK and the EU provided exquisitely exceptional circumstances, only time will tell which predicted future will become reality.