Boris’ Bill Blunder: Government loses in the House of Lords over Brexit law breaking

November 7, 2020

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3 min read

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What's going on here?

The government was defeated in the House of Lords after the controversial Internal Market Bill, which lays out how trade will work within the UK after it officially leaves the EU’s single market and customs union, was rejected.

What does this mean?

Members from the higher chamber voted in favour of a “regret” amendment, highlighting that the Bill “would undermine the rule of law and damage the reputation of the United Kingdom”. This does not have any legal effect but allows the Lords to put their disapproval on the record. The Bill would give ministers powers to “override” the Northern Ireland Protocol, which is binding by international law, by means of the EU-UK Withdrawal Agreement. The Northern Ireland Protocol determines how trade will work between the rest of the UK and Northern Ireland post-Brexit. During the passage of the Bill through the House of Commons, the government conceded that such a move would breach international law. 

What's the big picture effect?

Unsurprisingly, this vote has thrown a further spanner in the works for Boris Johnson’s government, which only has until Thursday 31 December to negotiate a trade deal with the EU. The government already saw trouble at the start of October when the European Commission issued legal proceedings against it regarding the legality of the Bill, showing how far the EU is willing to go in preserving the initial agreement. These proceedings may be laid aside if UK-EU talks go well in the coming days and weeks.

Nonetheless, this presents an interesting dilemma regarding the rule of law. As it stands, the Bill allows the executive (government) to amend and be in breach of legally binding international obligations. This could impact the willingness of other countries to conduct future international trade deals with the UK. The UK needs trading partners to trust that it abides by its obligations in future agreements. However, on Friday 23 October, the UK signed its first major post-Brexit trade deal with Japan. In that respect, not everything seems to be doom and gloom for Mr Johnson’s government in the post-Brexit world.

On the whole, the Bill seems to be an attempt by the government to circumvent crucial parts of the Withdrawal Agreement and will undoubtedly have a huge reputational impact if made into law. The government will likely not agree with the Lord’s amendments in the coming weeks. Thus, expect plenty of Parliamentary “ping-pong” (when the House of Lords and Commons pass legislation back and forth until amendments are agreed) in the near future. However, the government’s ability to breach international law is nothing new. For example, the Human Rights Act 1998 stops Acts of Parliament from automatically becoming void if they are found to be in breach of the European Convention on Human Rights by the judiciary. Instead, the government is left to decide whether it should change the law so that it is no longer in breach but it is not obliged to.  Ministers also make use of prerogative powers (such as deployment of armed forces and making of treaties) against the will of Parliament. Historically, Parliament has always had the sovereign power to breach international law. Hence, if the Bill becomes law, Parliament will have empowered the government to breach international law. Therefore, the real question is how much of the UK’s global reputation will it cost for Mr Johnson to secure his ideal form of Brexit?

Report written by Dan Furniss

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