The UK Internal Market Bill and the Rule of Law

Mutual recognition would ensure that products and services which satisfy the regulatory requirements and standards of the ‘Home’ region could be sold or supplied in all other parts of the UK. The legislation further ensures mutual recognition of professional qualification across the UK and establishes a new supervisory Office of the Internal Market (within the UK Competition and Markets Authority), to monitor, report and enforce the functioning of the internal market.

The Bill has though received global attention for its provisions in relation to Northern Ireland, which clash with the Protocol agreed with the EU as part of the Withdrawal Agreement passed in January 2020. This clash, it was acknowledged by the Northern Ireland Secretary of State in the House of Commons, would breach international law and has raised concerns over UK respect for the Rule of Law. As the legislation currently stands, there are two particularly worrying proposals: firstly that UK Ministers could unilaterally disapply EU Customs requirements for Exit Summary Declarations on Goods travelling from Northern Ireland to the rest of the UK, and secondly that UK Ministers can make decisions on how EU State Aid rules are to be applied in Northern Ireland. The Withdrawal Agreement stated that Northern Ireland would follow EU rules in both areas, yet the Bill clarifies that incompatibility with the international Treaty cannot be used as the basis by which to declare such UK actions as unlawful.

In parallel, the UK Law Societies have publicly voiced their concerns and called for the contentious provisions to be dropped from the Bill:

• Echoing the comments of the House of Commons Justice Select Committee Chair, the president of the Law Society of England and Wales Simon Davies issued a statement that: “The rule of law is not negotiable…Our commitment to the rule of law is key to attracting international business to the UK and to maintaining faith in our justice system.”

• Similarly the President of the Northern Irish Society flagged that “Upholding the Rule of Law, both domestically and internationally, is a core responsibility of democratic Government and ranks alongside the responsibility of Government to protect its citizens…The Government is no more entitled to pick and choose which laws it keeps than is the individual citizen.”

• The Law Society of Scotland likewise briefed that the bill should, as a matter of principle comply with public international law and the rule of international law: pacta sunt servanda (agreements are to be kept) should be honoured. Adherence to the rule of law it was noted underpins our democracy and our society…to knowingly break with the UK’s reputation for following public international law could have far reaching economic, legal and political consequences and should not be taken lightly.

The Law Society has now launched a campaign in the UK encouraging individuals, and especially UK lawyers, to write to their constituency MPs, flagging how the Bill, by enabling ministers to derogate from the UK’s obligations under international law in broad and comprehensive terms, represents a direct challenge to the Rule of Law. This must surely have implications on the UK’s reputation around the world as a country with which to do business, with global and long-term effect. Such reputational damage could seriously undermine the UK’s position as a centre for international legal practice and dispute resolution, and the global use of English law.

It is also likely to impact upon the ongoing negotiations with the EU and with other countries. With respect to the EU negotiations, we are particularly concerned that it may also have an impact on the other issues that are being negotiated on top of the FTA.

Further it has been flagged in parliamentary briefings that while the subject matter is relatively narrow and technical in scope, focusing on trade with Northern Ireland, this is a highly charged political issue not only in the negotiations with the EU but also in the context of the bill itself, which replicates various issues familiar from the EU internal market as principles to be developed in the narrower context of UK domestic law. This could certainly lead to significant conflict between the courts and executive with regard to judicial review.

While the Conservative Party majority has ensured swift passage of the legislation in the House of Commons, it is expected that members of the House of Lords will propose significant amendments to the legislation. The respective Law Societies will continue to raise our concerns and call for the UK to be a global benchmark in respect for the Rule of Law, both international and national.

For further information please contact brussels@lawsociety.org.uk.