As widely anticipated, the government’s UK Internal Market Bill received a hostile reception during its Second Reading debate in the House of Lords. Peers attacked the bill for its assault on the rule of law or its capacity to undermine the delicate devolution settlement in the UK. Indeed, criticisms of the bill have tended to fall into one of these two camps. It seems that one is either a guardian of the rule of law—in which case it is the provisions modifying the Withdrawal Agreement that are attacked—or one is a defender of devolution—in which case it is the “market access” principles in the bill that come in for anxious scrutiny.
That there might be a unifying thread to these complaints was revealed from an unlikely source—former Conservative cabinet minister and Brexit enthusiast Peter Lilley. In his intervention in the Lords’ debate, Lilley drew a comparison between the EU’s apparent willingness to act in breach of international law and what the UK Government was proposing to do in the Internal Market Bill. Referring to litigation before the Court of Justice of the EU in Kadi—a case concerning whether the EU is bound to implement a UN Security Council decision to sanction certain individuals alleged to have terrorist links—Lilley quoted from the Opinion of the Advocate General:
“It would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally.”
Warming to his theme, Lilley also highlighted examples where the German Constitutional Court had indicated circumstances in which it would not consider itself bound by its international obligations under EU law.
What these examples share is the proposition that there are conditions under which compliance with international law is asked to cede to the fundamental constitutional requirements of a legal order. That was the point in Kadi; could the Court of Justice simply ignore the protection of EU fundamental rights when implementing international law? Similarly, national courts in Germany and elsewhere have sought to safeguard constitutional rights (and more controversially, constitutional identity) when complying with their EU law obligations. All of which led Lilley to pose the central question: “Are there potential conflicts between obligations under the withdrawal treaty…