The House of Lords should remind the government that the rule of law is not negotiable

This week will see parliamentary history being made. The House of Lords will consider a motion tabled by a former lord chief justice, Igor Judge, regretting that the government’s controversial UK Internal Market Bill “contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.”

For a former head of the judiciary in England and Wales to take such a rare parliamentary step on a flagship piece of economic legislation is significant in itself. When one recalls that the bill has also provoked the resignation of two significant government legal figures (the head of the Government Legal Department and the lord advocate for Scotland), attracted the criticism of numerous former senior judges, including other former lord chief justices and presidents of the Supreme Court, united the legal profession in opposition, been roundly condemned by several parliamentary committees, and this morning prompted a rare intervention by the UK’s archbishops, there is clearly something significant going on.

The government says that the relevant provisions in the bill are merely “an insurance policy,” or a “legal safety net.” As the Lord Chancellor, Robert Buckland, described them in his evidence to the House of Lords Constitution Committee last week, the emergency powers are prudent and sensible to take now and hold in reserve, in case they are needed in the event that the EU acts in bad faith in the ongoing negotiations about the future relationship. Thanks to an earlier concession they are subject to a “parliamentary lock,” requiring a resolution of the House of Commons before they are brought into force. Such exceptional provisions are justified by the unusual nature of the negotiations in which the UK is engaged, says the government. And, according to the Foreign Secretary, there is no evidence of the bill doing any harm to the UK’s international reputation as a rule of law regarding nation.

So who is right? Is this a rule of law storm in a teacup, whipped up by self-serving legal types, or are the stakes really as high as all the former judges, the lawyers and now the archbishops are telling us?

As peers debate the bill this week they should be sceptical of the government’s arguments that its provisions do not undermine the rule of law or damage the UK’s international reputation, for three main reasons.

First, the government’s characterisation of the provisions as contingent emergency powers, providing only for possible future beaches of international law if the EU acts in bad faith, is wrong. The enactment of the bill in its current form by parliament would constitute an immediate breach of the Withdrawal Agreement, the international treaty which the government recently concluded and which parliament implemented in the EU (Withdrawal Agreement) Act 2020. The inclusion of the provisions represents a breach of the UK’s good faith obligation to refrain from measures which jeopardise achieving the objectives of the WA (Article 5). And their enactment by parliament would be a breach of the UK’s promise in Article 4 to provide a special level of legal protection in UK law for certain rights recognised by that treaty. These two breaches occur even before any ministerial regulations are made under the Act. That is why the European Commission is bringing infringement proceedings against the UK now, not waiting to see if regulations are made.

Second, the so-called “parliamentary lock” does not fix the bill’s rule of law problem in the way the government claims. In part, this is because of the problem outlined above. But it is also because, as former prime minister Theresa May so forcefully explained in the Commons, whether it is the government or parliament that brings about the breach of international law is neither here nor there: it does not alter the fact that the UK is deliberately putting itself in breach of recently undertaken international obligations.

Which brings us to the third reason to be sceptical of the government’s position. Its argument that breaching or threatening to breach international law is justified in the context of our negotiations with the EU, and its claim that this does no harm to the UK’s international reputation, underestimates the fundamental importance played by the concept of trust in upholding the rule of law. To beat the pandemic, the government requires high levels of trust from the public to achieve adherence to restrictions on the scale to be effective. To recover from the economic effects of the lockdown measures, the government needs inward investors to continue to have confidence in the UK’s commitment to being a rule of law nation. As former Court of Appeal and Commercial Court judge Elizabeth Gloster reminded us in a recent Prospect webinar, the City’s position as a world-leading financial services centre is also underpinned by that international reputation. To mitigate the impact of Brexit, the UK needs trading partners to trust that it will keep its word in international agreements.

The clauses in the Internal Market Bill are the latest manifestation of the government’s apparent blind spot on the importance of trust, and its centrality to any claim to respect the rule of law. President Trump famously offered his advice to May about how to negotiate with the EU, though her administration did not seem keen to follow it. The transactional approach in the UK Internal Market Bill suggests that the current government is more receptive to that advice. The fundamental problem is treating adherence to international obligations as a bargaining chip in a negotiation. But the rule of law is not negotiable. As former president of the Supreme Court Brenda Hale recently commented, “It’s hard for anyone to stay on a high horse if you have dismounted from it, however temporarily.”

In these extraordinarily uncertain times of the pandemic and Brexit, long-term trust, not short-term Trumpism, is what the UK needs to maintain its international reputation for the rule of law and to ensure its future economic prosperity. The Lords have an opportunity this week to remind our leaders of this simple proposition. If they agree with Igor Judge’s regrets, the government should start listening to the advice of its former senior judges, and remove the offending clauses from the bill.