Who will get burned over the UK Internal Market Bill?
Has the UK Government picked a fight worth having over its Internal Market Bill? What will be the lasting consequences for the standing of the Prime Minister and his government?
These are among the key questions this week as MPs consider the government’s law-breaking law, the UK Internal Market Bill.
The clamour of opposition to the unprecedented legislation has grown steadily since Northern Ireland Secretary Brandon Lewis made the extraordinary statement to MPs that it would “break international law in a very specific and limited way”.
The bill gives the government the power to go back on the Northern Ireland Protocol within the EU Withdrawal Agreement that it signed just nine months ago.
The government’s top lawyer, Sir Jonathan Jones, permanent secretary to the Government Legal Department, resigned because of his disquiet at what the government was preparing to do, and was followed by the UK Government’s law officer for Scotland, Lord Keen.
Then the Democratic presidential candidate Joe Biden added to Tory discomfort (and fuelled anger among some Conservatives) by warning that any US-UK trade deal had to be “contingent” on respect for the Good Friday Agreement, in a reference to the bill.
The Johnson government has gained a reputation for disdaining rules, up to and including the law, underlined by its decision to prorogue parliament last year. But the government then at least claimed it believed prorogation was lawful.
Critics warn the intention unapologetically to break the law badly damages Britain’s reputation for trustworthiness on an international stage.
And that, as it were, is only the half of it. In separate provisions, the bill allows for the UK Government to involve itself directly in devolved areas and limits the powers of the devolved administrations when it comes to regulating goods and services.
The UK Government claims it enhances devolution.
Professor Nicola McEwen of the Centre on Constitutional Change at the University of Edinburgh says it indicates “a significant recentralisation of power”.
Speaking at Prime Minister’s Questions last week, Boris Johnson insisted the bill was a “massive devolutionary act” and a “very substantial transfer of powers to Scotland and Wales”.
The SNP’s Westminster leader, Ian Blackford, responded that Johnson was a “liar” – and was reprimanded by the Speaker for using such unparliamentary terminology.
Others have used more circumspect language, but what has become all too clear is the fast diminishing capacity of the UK Government to command trust, in its negotiations with the EU, in dealings with the devolved administrations, in parliament and even on its own benches.
It is far from certain that its threat to override international law will produce concessions from Brussels.
But even if the government succeeds in getting the bill through parliament and subsequently claims vindication for its approach, any success may come at a high cost for its longer-term aims, both because of damage to the UK’s international standing and the way the row could weaken support for the UK union.
With the first leaves turning russet red along the Thames, there has been a distinct sense of déjà vu about this latest furore. It was exactly a year ago that parliamentarians joined forces across party lines to condemn the suspension of parliament by the new prime minister.
The government had faced a sizeable backbench rebellion among Remain-inclined Conservative backbenchers which had forced Johnson to accept a delay to the Brexit deadline.
Following the general election of December, which secured for the government a working majority of 87 and filled the green benches choc full of Brexit enthusiasts, such high drama was thought to have been relegated to the past.
But in the last week, Johnson has again been counting the rebels in parliament and an army of opponents outside of it.
At time of writing, the rainbow alliance arrayed against the government over the Internal Market Bill included the five living former prime ministers (two Labour, three Tory), the devolved administrations, Labour and the Liberal Democrats, the Irish government, the EU, certain Tory backbenchers, Biden and the speaker of the US House of Representatives.
Others to indicate opposition included two pro-Brexit former chancellors, Sajid Javid and Norman Lamont, and even the former attorney general Sir Geoffrey Cox, he who defended the prorogation of parliament, who called the intention to break international law “unconscionable”.
Tory MP Tobias Ellwood summed up the dismay of many MPs: “The rule of law is everything – if we forget this, we forget who we are, what we stand for and the moral high ground that forms the foundation of our soft power.”
Indeed, some of the most scathing attacks have come from the Tory benches.
The former Conservative leader Lord Howard asked: “How can we reproach Russia or China or Iran when their conduct falls below internationally accepted standards when we are showing such scant regard for our treaty obligations?”
In a joint statement, former prime ministers Tony Blair and John Major accused Johnson of behaviour that was “irresponsible, wrong in principle and dangerous in practice”.
They wrote: “It raises questions that go far beyond the impact on Ireland, the peace process and talks on a trade deal, crucial though they are. It questions the very integrity of our nation.
“As the world looks on aghast at the UK, the word of which was once accepted as inviolable, this government’s action is shaming itself and embarrassing our nation.”
Two MPs, Sir Roger Gale and Andrew Percy, voted against the government outright last week and 30 others abstained (though not all abstentions indicated opposition to the bill).
And then the row-back began. By the middle of last week, the government had seemingly started disowning its unambiguous statement of intent to break the law, with the Home Secretary, Priti Patel, flatly contradicting Lewis to insist the government was “absolutely not” breaking the law.
Faced with what looked like significant numbers of Tories preparing to support Sir Bob Neill’s amendment, which was designed to ensure MPs have to give consent should the government ever wish to use the contentious powers, the government agreed to table its own amendment to the same effect, while another government amendment limits the scope of judicial review into the use of the powers.
But the bill is still likely to be fiercely resisted in the Lords, with opponents insisting that even with the government agreeing a so-called “parliamentary lock”, the bill is still wrong in principle.
Is all this really worth it for Johnson? One interpretation is that the row is designed to make Britain look tough on the EU and to distract from an avalanche of bad headlines on COVID testing. But the government insists it has just cause for its unique course of action.
It argues, for instance, that the Withdrawal Agreement had been signed in a hurry and its implications were not fully understood.
This has been met with an eye-roll from critics who point out the deal was described as “oven ready” by the Prime Minister for months and that he fought an election on the basis of it.
The government also claims that the EU is threatening to block certain food exports from Great Britain to Northern Ireland under the terms of the protocol.
The EU denies this. However, it has made clear that in order to give the UK so-called third country listing, status for countries approved for food imports to the EU, “we need to know in full what a country’s rules are, including for imports”.
Behind this lies concerns about goods that could enter the UK as part of a trade deal that might not meet the right standards (remember chlorinated chicken?)
The government has presented this as “extreme” and used it as a justification for its contentious bill.
The trouble is that the Internal Market Bill doesn’t actually address the issue of exports from Great Britain to Northern Ireland.
Serial Tory rebel from the last parliament, David Gauke, has made this observation: “The Northern Irish question was always immensely difficult with the Brexit-seeking UK holding contradictory objectives. Boris Johnson had got a deal by selling out the Unionists, but failed to recognise publicly that this is what he had done.
“This was either staggeringly incompetent or extraordinarily mendacious (I am afraid either explanation is plausible) but it has come unstuck.”
If there is a deal, of course, the controversial provisions on Northern Ireland will not need to be enacted, since the protocol only applies if there is no deal.
But there is widespread anxiety that, even if this is so, the damage to the UK’s reputation has already been done.
Meanwhile, the hugely contentious provisions on devolution look set to go through.
The UK Government will acquire new spending powers enabling it to fund projects in devolved areas directly, through councils. This may seem superficially uncontroversial, and the government has presented it as an unalloyed benefit for Scottish communities, but as the Scottish Government has pointed out, it would mark a move by the UK Government into devolved areas without the oversight, or necessarily the approval, of the devolved government.
Perhaps most significantly, according to McEwen, are the bill’s ‘market access’ rules, which would in effect limit the impact of Scottish Parliament legislation.
The rules mean that goods, service providers and people with a professional skill that meet regulatory standards in one part of the UK will be able to enter the market anywhere else in the UK without having to meet local regulations.
She gives the example of a hypothetical law to tackle obesity passed by the Scottish Parliament which required producers to reduce the sugar content of foods and make sugar content prominent on labels.
Under the new market access rules, the Scottish Parliament’s standards wouldn’t apply to any food or drink entering Scotland from elsewhere in the UK; on those goods, the Scottish Government would be unable to apply its new public health rules.
Under EU law, exemptions from Europe-wide standards are allowed in certain circumstances, such as laws on public health, morality, environmental protection or protection and promotion of local heritage.
It does not appear that these exemptions would be available under the new UK internal market rules, McEwen observes.
The Welsh Government has accused the UK Government of “stealing” powers while the Scottish Government has accused it of “an attack on Scotland’s parliament”, though the SNP has also made maximum use of the row to push for independence.
All six Scottish Conservative MPs, including the party’s leader, Douglas Ross, have backed the government.
The Scottish Conservatives have insisted that with more than 100 new powers coming to Scotland, the government is strengthening, not weakening, devolution, but opponents retort that the powers in question are being repatriated from Brussels and that the new limitations put on Scottish Parliament actions make this a “power grab”.
They say the government should have carried on working with the devolved administrations on common frameworks for internal trade rather than resorting to these rules.
This innocuous-sounding piece of legislation has set fires burning, but it may be the Prime Minister in the end who gets burned.