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Brexit and breaking the law: ‘it’s only okay when we do it’

When the UK formally left the EU on the 31 January 2020, it felt like the nation, whether pro-leave or pro-remain, breathed a sigh of relief. We had a Withdrawal Agreement that Parliament had voted for, and the European Parliament approved. The four-year-long saga that saw the rejection of the Chequers agreement and the unlawful prorogation of Parliament was finally coming to an end. Although trade deals still needed to be negotiated, it seemed as if we were out of the woods.

Except now, it appears that this saga is very much not over. Not even a year since the Withdrawal Agreement was ratified by the Council of the European Union, our government is attempting to pass a Bill allowing it to be disapplied, constituting a breach of international law. This Bill, the United Kingdom Internal Markets Bill, has just survived a first vote in the House of Commons.

Setting the terms of the UK’s withdrawal from the EU, the Withdrawal Agreement is enshrined in UK law in the EU (Withdrawal) Agreement Acts of 2018 and 2020. The specific part in contention recently is the Northern Ireland Protocol, designed to avoid a potentially peace-threatening hard border between Northern Ireland and the Republic, with Northern Ireland following single market rules in some instances and administering EU’s customs code at its ports . The protocol assumes that a trade deal will eventually be negotiated between the UK and the EU regarding trade with Northern Ireland, but until such a deal can be finalised, the default EU position would apply to prevent a hard border.

The mutually sanctioned agreement is now threatened by the Internal Market Bill, seen as explicit authorisation for the UK to breach the international obligations set out under the Withdrawal Agreement. Clause 42 would allow exit procedures required under the Northern Ireland Protocol to be disapplied while clause 43 further allows provisions concerning state aid to be disregarded. Finally, if there was any doubt left about the potential of the Internal Market Bill to breach international law, clause 45 assures that clauses 42 and 43 will still be in effect even if they breach the Withdrawal Agreement, a clear sanction for the former legislation to override the latter.

You may be thinking ‘so what?’ or questioning why this particular breach of international law is so important. You’d be correct to think that international obligations have been broken before, and, indeed, some EU member states are particularly serious offenders. Sometimes our international obligations are breached when new circumstances come to light, with the UK’s introduction of the General Anti-Abuse Rule (GAAR) in 2013 to combat new forms of tax evasion being an example. GAAR serves to prevent the use of abusive tax-avoidance schemes that amount to more than responsible tax planning to minimise the amount of tax that one might pay. There was debate at the time on the passing of the Finance Act 2013, which included GAAR, about whether it may have broken international law. Secretary of State for Northern Ireland Brandon Lewis suggested that GAAR sets a precedent for further breaches of international obligations under the Internal Markets Bill, but there is strong evidence that GAAR wasn’t inconsistent with our continuing treaty obligations.

Even if international obligations are breached, enforcement is difficult and there is very little actually stopping France, for example, from deciding that they want to shut their borders because they are no longer supporters of free movement. International courts, such as the European Court of Human Rights or the European Court of Justice, can rule on issues concerning international law, but ensuring that the correct action is taken is where the problem of enforcement lies. Typically, the United Kingdom is willing to take heed of international court rulings, but this isn’t always the case. Though the European Court of Human Rights ruled that a blanket ban on convicted prisoners being able to vote was a violation of their rights, prisoners in the UK still do not have the right to vote.

However, the issue goes beyond any ‘punishment’ for breaching international law, and is more about upholding and respecting the rule of law. It seems pretty outlandish for the government, the makers and enforcers of law, to not accept their own legal duties, more so considering they currently expect people not to socialise in groups of more than 6. As the rule of law is a cornerstone of our constitution, it absolutely matters when anyone, not least the government, attempts to disregard it.

While the government response to the contentious bill has been mixed, there has mostly been an outrageous display of support for the breaking of international law or denial of any such attempt taking place. The level of misinformation permeating this discourse is concerning and, understandably, some members of the public are seriously misinformed.

Secretary of State for Northern Ireland Brandon Lewis acknowledged that the UK government was attempting to breach international law, but added an irrelevant and nonsensical caveat that the breach was only “specific and limited”. We could say that any breach of the law is “specific and limited”; if I steal a mere £20 from someone’s wallet, it is a crime that is limited in its severity, but we wouldn’t say that would make the crime any better. A breach of the law is a breach of the law. Recently, Lord Keen had jumped to the defence of Lewis, asserting that he “essentially answered the wrong question”. It should be noted that Lord Keen has since resigned as law officer for Scotland.

Home Secretary Priti Patel has also stated that “we are absolutely not doing that [breaking international law],” and that “Parliament is sovereign when it comes to how international treaties … are not just interpreted but actually applied through our Acts of Parliament.” She is plainly incorrect in her denial and horribly mistaken in her interpretation of parliamentary sovereignty. Yes, Parliament is sovereign and can legislate to the contrary of any of our international treaty obligations. However, this doesn’t mean that our treaty obligations cease to exist, and we are no longer bound by them.

Attorney General Suella Braverman set out her legal position along the same lines as Patel, defending the Internal Market Bill on the grounds of parliamentary sovereignty and a horribly confused interpretation of R (Miller) v Secretary of State for Exiting the European Union. She spectacularly misses the point that our international obligations may not be enforceable in the UK courts (unless enshrined in domestic legislation) but are nevertheless binding for the government. There have been calls for Braverman to resign, as the head of the Government Legal Department Jonathan Jones has done, but this seems unlikely given her strong, but misguided, defence of the government’s position.

Lord Chancellor Robert Buckland QC told Andrew Marr that he will resign if the rule of law is broken in a way that he finds “unacceptable” . The Constitutional Reform Act 2005 only references that the Lord Chancellor must respect the rule of law, with no caveats about acceptable and unacceptable breaches, which begs the question of what offences the Lord Chancellor finds to be acceptable. Only going 5mph over the speed limit? Taking £10 from someone who had £30 in her purse? Buckland has gone on to say that if the law is broken in a way that cannot be “fudged” (I am not making this up), then he will resign.

Even more ridiculously, MP Desmond Swayne asserted that: “[t]here is a principle in international law that no country can be bound by an obligation when that obligation is interpreted in such a way as to undermine the very integrity of that country.” This principle, quite literally, does not exist.

I want to be clear that this is not, and should not, be a political issue. Any government breaking, or threatening to break, laws should be held accountable regardless of their political affiliations. We can all agree how damning the Chilcot Inquiry was for Tony Blair’s decision to invade Iraq, regardless of whether you vote Labour. One thing to highlight is that more people should care about such blatant breaches of fundamental principles like the rule of law. If we care about democracy in any meaningful sense, we cannot allow politicians to get away with such brazen lying and misleading of the public.

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