Boris Johnson's internal market bill is back in the House of Lords next week, but will peers let it through?
The bill gives the government an express power (a written one in a statute) to break an international treaty. The Lords do not like that the government might break a specific treaty. Where you stand on those are political, not legal questions — so not for a lawyer like me to answer.
But what is for law, is to firstly recognise (whether peers like it or not) that the power to break a treaty, does exist. Think of it like a physical thing; it is in our constitution and we’ve lost track of exactly where it is. We let the EU use it for us. But we know it is there. It is in the EU’s constitution, via a court case. I’ve written before of how it is in Germany’s constitution. To be frank, it is in every nation’s constitution. Somewhere.
In Britain, the government is attempting to find it, by writing it down in the bill and trying to make that bill into law. The Lords is blocking that and has the power to do so. But that power is limited. The reason why is a core part of our constitution: democratic accountability. In our country, if you aren’t elected, then no matter who you are, you can’t ever wield as much power as someone who is. Think of these powers as physical things. Unelected people can carry what they can, being elected adds a backpack, so you can carry more.
So does the power to break, or not break, international treaties sit in the House of Lords? No. Does the power to block forever an elected government sit in the House of Lords? No. This means that, come Monday's vote, the Lords needs to consider its best case scenario. Here are their options:
We could say that the power to break international treaties sits where it has always previously sat, with the government. This is the ‘old school’ option. But the government is worried this is not the place we will find the power to break an international treaty now we are looking for this power again. Those who oppose the government feel pretty confident the courts would back them up. I worry that that is a miscalculation. It is true that, in Germany, the power does sit in the courts. But the fact that judges are not elected is the reason we’ve never tried to give them this power to hold before. Judges have a pretty firm view on how many powers they can carry. I am not convinced the English courts would rush to carry another.
So if they frustrate the bill, the Lords still lose, if the courts find the power was being carried by the PM all along. The courts could say 'this is not for us'. After all, they have done so before, and our constitution gives very few of these powers to judges compared to, say, the USA or Germany. That is no bad thing: it makes us more attractive to international legal disputes. The less political everyone thinks your courts are, the more they trust them to resolve a dispute fairly. That is how we have managed, despite not having an empire for a really rather long time, to keep our laws popular, with all of the jobs and wealth that flows from that.
But what if I am wrong? If so, then the Lords are still frustrated. Because if our second option is that the power lies with the courts then they are, in my view, very likely to use it in a similar way to the government. If the judges do say the power to break international law has moved to them (which is itself an extremely courageous thing to do) then why assume they would wield it differently from the PM?
The best-case scenario for the Lords then is not to find they have this power. They don’t and that’s just not going to happen. Instead, if they stop blocking the bill, we will actually have made a new rule that makes the power a bit less toxic. Why? Because while it would accept that the power lies with the government, there will also now be an acceptance that to use it they must now at least involve parliament.
But the role of the Lords in this is done. They’ve highlighted the toxicity of this bill and not pretended that breaking international law is irrelevant. There is no value in peers pretending they can block this forever, and no benefit to trying to shift the toxic power over to a reluctant court. Why? Because this would make our laws less attractive in the global marketplace and put a burden on judges they’ve never had to carry before.
In the season of gift giving we must all be conscious of the unwanted gift. Peers should not rush to deliver this toxic power in to the hands of the judges. The judges may very well ‘regift’ it — and the opportunity to make it less toxic, by involving parliament, would be lost.
My view remains that the modern way to deal with this power to break international law — this toxic thing we all need but don’t really like — is to do as Germany does. Make a public, legal statement of commitment to international law, ideally via a statute. This would remove forever the flippant view that international law can, or should be, broken as though it were unimportant. The best outcome here is that the government still carries the power, but ensures it is just a bit less toxic than it was before. Peers can use this opportunity to get a positive outcome, but only if they let the bill through.