‘Brexit Transition and the Rule of Law: An Uncertain New World?’ by Dr Oliver Garner

The Lords’ condemnation of this part of the Bill follows similar argumentation in the House of Commons. On 22 September Shadow Justice Secretary David Lammy confronted Justice Secretary Robert Buckland with the claim that the Bill represents a ‘flagrant attack’ on the rule of law at the domestic level.

These parliamentary disputes over the UK Internal Market Bill mark the latest Brexit constitutional flashpoint. After the June 2016 referendum, tensions between the branches of government grew with Miller (No 1) on Article 50 notification. The situation worsened during the Parliamentary battles over Withdrawal Agreement ratification and Article 50 extension, culminating in the explosive Miller (No 2) judgment on prorogation.

The EU treaties ceased to apply to the UK on 31 January 2020, and the transition period up to 31 December 2020 started. The transition period is meant to minimise regulatory disruption whilst the EU and the UK negotiate a future relationship. This means that the present skirmish takes place within a context of EU-UK relations regulated by international treaty law, rather than EU membership and ‘supranational constitutionalism’.

The Chairs of the House of Commons EU Scrutiny Committee and the House of Lords EU Committee have both expressed concerns that the government is not facilitating full parliamentary scrutiny during the present negotiations with the EU. The UK Internal Market Bill arguably shows that the government’s ‘backs against the wall’ and ‘cards close to the chest’ negotiating method and mentality has spilled over into domestic legislative processes. This is evidenced by the ‘drip-drip’ approach of the government towards explaining and justifying why the clauses permitting breach of an international treaty were created.

The Prime Minister spoke, on 14 September, of an insurance policy against the EU ‘using the stick’ against the UK. Allusions were made to veiled threats in Brussels back-rooms about blockades in the Irish sea. Eventually, 9 days after the introduction of the Bill, the government published examples of EU conduct that it believed would undermine the ‘fundamental purpose’ of the Protocol on Ireland/Northern Ireland, and justify the use of the powers.

The factual context of fraught negotiations explains the content and the form of the policy. However, factual explanation does not necessarily provide constitutional justification.

The UK Internal Market Bill may have generated less controversy if the Prime Minister had delivered a clear, transparent, and unequivocal statement to the nation explaining the exact perceived threats made by EU negotiators, and the reason why the emergency clauses were regarded as necessary. This could have precipitated a prior debate in Parliament as to whether MPs and Peers agreed with the government’s perception of the threat, providing an ‘upstream’ opportunity for parliamentarians to decide upon the necessity of the clauses.

A healthy polity requires good governance in accordance with the rule of law. Good governance requires transparency in legislative processes, accessibility of legislation, governmental accountability, and a political duty to give reasons for government policies. Deficiencies in these characteristics within and between the executive, the legislature, and the judiciary leads to the febrile atmosphere of international negotiations manifesting itself domestically.

The internal point of view of constitutionalism and rational discourse gives way to an external perspective of conflict, realpolitik, and the ‘friend/enemy distinction’ between political opponents. The risk to the rule of law is the re-emergence of a pre-civilizational ‘state of nature’ within our constitutional institutions. This domestic drama plays out against the wider backdrop of an imminent political deadline for the conclusion of future relationship negotiations between the UK and the EU on 19 November.

A further sideshow to the main-stage action is the possibility of a Luxembourg courtroom drama if the Commission pursues its infringement claim against the UK for breach of good faith. The surface level policy disagreements over fisheries, the level-playing field, and governance are well-known. The deeper sedimentary threat may be that, even if the future relationship is agreed, we will be entering into an uncertain new world of realist conflict rooted in ‘power politics’ rather than collaborative constitutionalism anchored by the rule of law.

The last weeks have brought a glimmer of optimism with the announcement of progress in vaccines for COVID-19. The present malaises of constitutional governance on the European continent, both political and legal, have had a far longer gestation period than the emergence of the novel coronavirus at the end of 2019 , or even the Brexit vote in June 2016 . But perhaps the possible end of the pandemic may also arrest the deterioration in the health of our constitutional systems. 2021 may bring the opportunity for a full recovery of political relations conducted on the basis of confidence and mutual trust – conditions for and products of the rule of law – rather than suspicion, mistrust, and raw assertions of power.

Dr Oliver Garner is the Brexit Research Fellow at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law, and a Visiting Researcher at the Central European University Democracy Institute. His research has been published in the Cambridge Yearbook of European Legal Studies, the International Journal of Constitutional Law, and European Journal of Legal Studies. Dr Garner is an editor of the European Law Blog and publishes regularly on other online platforms including Verfassungsblog and the UK Constitutional Law Association blog.