In the row about the Internal Market bill, some important constitutional propositions are in danger of being misunderstood. The introduction of the bill, which would empower ministers to disapply provisions of the Ireland/Northern Ireland Protocol to the Withdrawal Agreement, has been widely reported as Government law-breaking. The Attorney General and Lord Chancellor have been criticised for failing to resign and for breaching their oaths to respect the rule of law. But do ministers break any rule of our law if they introduce a bill that conflicts with a treaty? Does introducing such a bill defy the constitutional principle of the rule of law? We think not.
Clauses 42 and 43 of the United Kingdom Internal Market bill, if enacted, will empower ministers to make regulations in relation to exit declarations governing goods moving from Northern Ireland to Great Britain and about the interpretation and application of the state aid provisions of the Protocol. The clauses specify that the powers may be used to make regulations that do not conform to the UK’s obligations under the Protocol. Clause 45 qualifies (sets aside) section 7A of the European Union (Withdrawal) Act 2018, which otherwise gives the terms of the Withdrawal Agreement and the Protocol priority in UK law over other enactments.
A provision like section 7A is required to give effect to the UK’s obligation under Article 4(2) of the Agreement to ensure 'through domestic primary legislation' that 'legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law' notwithstanding otherwise inconsistent provisions of domestic law. So clause 45, if enacted, would seem to be a clear, and now admitted, breach of Article 4; the powers in clauses 42 and 43 may, depending on how they are exercised, give rise to further breaches in the future.
But in introducing a bill that contains these clauses, does the Government violate national law? Whatever the practical and political merit or demerit of such clauses, the short – and inevitable – answer is ‘no’. Why? Because when ministers introduce bills, they act not only as members of Her Majesty's Government with executive responsibilities but equally as members of Parliament. Their action promotes the freedom of debates and proceedings in Parliament. Their freedom to promote any measure they judge in good faith to be in the interests of the country (or indeed of the international community as a whole) is an integral part of the sovereignty of Parliament.
Jo Maugham QC, no friend of the Government, was quite right yesterday to say:
'If Parliamentary sovereignty - a notion at the heart of most lawyers' idea of our rag-tag constitution - means anything it must mean Parliament can enact (thus Ministers can advise on and recommend) … legislation that breaches international law.'
That sovereignty, as the Supreme Court has recently acknowledged, includes the authority to make and unmake any law whatever. This foundational principle and rule of our constitution is incompatible with any notion that some members of Parliament are disqualified by their ministerial office from proposing the unmaking of previously enacted law.
'Whether it is a 'good idea' to breach international law is a political judgment, which (like most) raises ethical and other political considerations, but unless you want to argue Parliament is not supreme, Ministers must be free to recommend that Parliament does it.'
Treaties become binding on the UK in international law by the actions of ministers in signing and ratifying them. It is a fundamental rule of our constitution that no treaty can change our law without an Act of Parliament giving it that effect. Otherwise ministers could change our law without Parliament's approval. They cannot do so. Therefore, they cannot impose legal obligations even on themselves without an Act of Parliament giving those treaty obligations effect in our national ('domestic') law. And what Parliament can do it can undo, and be invited to undo. That is the law of Parliamentary sovereignty.
Parliament can repeal, or partially override, section 7A or any provision of the 2018 Act even though to do so without installing an equivalent provision would be inconsistent with Article 4(2) of the Withdrawal Agreement. Whether Parliament should do so, as a judgement about the common good (national and/or international), is a matter for Parliament and its electorate.
What is beyond doubt is that it is entirely inconsistent with our constitution to argue as if statutes giving effect to international treaties were unrepealable or unamendable. The Human Rights Act 1998 itself contemplates and provides for non-compliance by the UK with its obligations under an important treaty, the European Convention on Human Rights. The courts of more than one major member-state in the EU insist that their national constitutional law authorises and requires violation of the EU treaties under conditions defined by national law.
The removal in 2015 of the UK Ministerial Code's explicit reference to ministers' duty to comply with international law was challenged in the courts by the Gulf Centre for Human Rights. The challenge failed at the permission stage. The Court of Appeal's decision (1 August 2018) adds nothing to the domestic legal status of international law. Indeed, the Gulf Centre's main argument, as summarised by the Court, was that ministers' duty under the pre-2015 Ministerial Code to comply with international law 'went beyond their legal duties'. This acceptance that ministerial duties in relation to international law are not truly legal duties was correct, and inevitable.
A strong Court of Appeal in 1968 (Post Office v Estuary Radio) emphasised that Her Majesty's Government ('the Crown') is legally entirely free 'to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before.' This has never been challenged. A former law officer of the Crown does the rule of law poor service, and mangles constitutional principle, when he writes that the Government's recent statements are an 'admission…that the Government is prepared to break the law.'
International law itself recognises the great difference between obligations that are peremptory (jus cogens) – obligatory whatever states may will, alone or in agreement with other states – and all the many obligations that states choose to impose on themselves by treaties and other voluntary arrangements. It recognises that breaches of voluntary obligations will occur, sometimes in complete good faith. It provides for arbitration and other means of resolving the resulting disputes between the parties to treaties. The Withdrawal Agreement does just this.
The clauses of the UK Internal Market bill which provide for the possibility that at some future time the UK Government may authorise the overriding of some part of the Withdrawal Agreement concerning exit declarations or state aid are far removed from any peremptory rule of international law. They are equally far removed from 'tearing up the Withdrawal Agreement'. Whether the regulations made under those clauses will themselves be in breach of the Withdrawal Agreement is a matter of refined legal argument. The dispute resolution mechanisms of the Withdrawal Agreement are available to deal with questions such as these, and with the consequences of answering such a question Yes, or Yes in some respects, and so on. And with the consequences of the admitted breach, limited but real, of Article 4.
It is worth bearing mind that Article 16 envisages unilateral disapplication of the Protocol if its application 'leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures'. Relatedly, the Government may argue that the regulations made under clauses 42 and 43 will be limited to Article 16 and/or will be used only insofar as is necessary to avoid the UK breaching its obligations under the Belfast Agreement. The scope of the UK’s international obligations may in due course also be complicated by the rebus sic stantibus doctrine of international law: if a treaty was entered into on the assumption that some state of affairs would exist, the non-existence of x may be invoked by one or both parties as relieving it from obligations reasonably believed to be conditional on x existing.
Our second question, about the principle of the rule of law, has to be considered against the background of all this complexity surrounding what it means to depart from or disapply a treaty provision or obligation. To ask a simple question: does the Government, or any of its members including those who are sworn to uphold the rule of law, defy (or fail to uphold) that constitutional principle by introducing a bill breaching, or potentially or conditionally breaching, an international law obligation, even if no rule of our national law is offended?
Some, like Lord Bingham writing extra-judicially, do not confine the principle to respecting and complying with all domestic legal rules, and no-one doubts that our constitutional tradition requires ministers to consider UK treaty obligations, even those not given the force of domestic law, with an overarching presumption that the obligation they impose on the United Kingdom is also a constraint on the conduct of ministers.
But the same tradition certainly treats that presumption as defeasible, exceptionally, by other ministerial responsibilities for the complex common good, national, regional and international. And there is no authority – and no good reason – for extending the notion of the rule of law so as to prohibit the preparation, introduction and discussion of a bill which involves some actual or potential or conditional conflict with an international treaty. The law and practice of our constitution deliberately reserve to Parliament and Government, accountable to the electorate, the responsibility and authority to decide whether and to what extent domestic law should comply with the UK’s treaty obligations.
That is a responsibility to be exercised with a careful eye to the reactions of other states and the integrity of international order more generally. But the bottom line is clear. Without violating the rule of law or other constitutional principles, Parliament may introduce, or allow, a legally defined discordance between domestic and international law – and may be invited by ministers to do so.
John Finnis QC (Hon) is Professor Emeritus in the University of Oxford and a Senior Fellow of Policy Exchange’s Judicial Power Project; John Larkin QC was Attorney General for Northern Ireland until June 2020