Parliamentary briefing: Internal Market Bill

Update – 8 December

On 8 December, the EU-UK Joint Committee released a statement addressing outstanding issues relevant to the implementation of the Withdrawal Agreement, including matters related to the Internal Market Bill.

Agreement in principle was found on border checks and the application of state aid under the terms of the Northern Ireland Protocol.

As solutions have been found to these issues, the UK government has agreed to withdraw clauses 44, 45 and 47 of the Internal Market Bill, and not introduce any similar provisions in the new Taxation Bill.

These clauses would have allowed ministers to breach the UK’s international obligations under the Withdrawal Agreement.

The Law Society has campaigned against these clauses from when the bill was first published, and we conducted two campaign actions on the issue.

Our concerns on these clauses have been raised in the Commons by spokespeople for the Labour Party, the Liberal Democrats, the Scottish National Party, and by previous prime minister Theresa May MP.

Introduction

These joint briefings set out the views of the Law Society of England and Wales and the Bar Council in relation to the Internal Market Bill.

The bill makes provisions concerning the Northern Ireland Protocol and its stipulations on state aid and trade.

It aims to guarantee unhindered trade between Northern Ireland, Scotland, England and Wales.

The bill also creates secondary powers allowing ministers to provide financial assistance through regulations.

Our position

We have significant concerns on clauses 43 to 47 of the bill.

Although 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.

It also has potentially serious ramifications for the relationship between Ireland and the United Kingdom, and for individuals and businesses with connections to the island of Ireland.

When this briefing note was substantially complete, we were shown a copy of a letter from the House of Lords Constitution Committee dated 14 September addressed to the lord chancellor raising a number of the same issues.

We agree with the concerns expressed in that letter and note the request to the lord chancellor to indicate how these proposed measures comply with international law.

Key recommendations

Clauses 43 to 47 of the bill should be removed from the bill for the following reasons:

• these provisions enable ministers to derogate from the United Kingdom's obligations under international law in broad and comprehensive terms and prohibit public bodies from compliance with such obligations. They represent a direct challenge to the rule of law, which include the country's obligations under public international law
• there's a significant risk of violation of the United Kingdom's international law obligations, including the principle of good faith and sincere cooperation in the Withdrawal Agreement
• there will be implications on the UK's reputation around the world as a country with which to do business. This will be of global and long-term effect, particularly in the context of the ongoing negotiations with the EU and with other countries. The slightest threat could damage the rule of law and the perception of the UK as a credible and predictable trade partner, as well as the UK's position as a centre for international legal practice and dispute resolution, and the global use of English law
• there will be negative consequences on the continuing cooperation with other jurisdictions in relation to civil judicial cooperation and enforcement of judgments. The bill could be highly prejudicial to the government's application to accede to the Lugano Convention
• the provisions could raise significant conflict between the courts and executive with regard to judicial review

We've therefore been urging support for any amendments that remove or nullify clauses 43 to 47, and will continue to do so.