Northern Ireland

Internal Market bill 'far removed from tearing up the Withdrawal Agreement' - former Attorney General John Larkin

A vote last month on the UK Internal Market Bill, with MPs asked to approve clause 46 - which is at the centre of a devolution row. Picture by Parliament TV/PA Wire
A vote last month on the UK Internal Market Bill, with MPs asked to approve clause 46 - which is at the centre of a devolution row. Picture by Parliament TV/PA Wire A vote last month on the UK Internal Market Bill, with MPs asked to approve clause 46 - which is at the centre of a devolution row. Picture by Parliament TV/PA Wire

BREAKING international law with the Internal Market bill would not see the British government breach domestic law, according to former Attorney General John Larkin.

The temporary High Court judge along with Oxford University professor emeritus John Finnis QC has examined whether the bill was unconstitutional and concluded "we think not".

The eminent legal thinkers have waded into the row over the legislation "which would empower ministers to disapply provisions of the Ireland/Northern Ireland Protocol to the Withdrawal Agreement".

In an article published in The Spectator magazine they say the Internal Market bill is "far removed from 'tearing up the Withdrawal Agreement'".

The lawyers were responding to criticism of UK Attorney General and Lord Chancellor for failing to resign amid accusations they breached their oaths to respect the rule of law and whether "ministers break any rule of our law if they introduce a bill that conflicts with a treaty".

They agree that clauses in the bill "if enacted, would seem to be a clear, and now admitted, breach of [part of the Withdrawal Agreement] and... 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?" Mr Larkin and Mr Finnis write.

"... The short - and inevitable - answer is `no'... 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."

They say such sovereignty [or power] includes the authority "to make and unmake any law whatever" and that in itself is the "foundational principle and rule of our constitution", meaning that no minister is barred from "proposing the unmaking of previously enacted law".

The lawyers argue that while treaties "become binding on the UK in international law by the actions of ministers in signing and ratifying them", they cannot change UK law without an Act of Parliament - and "what parliament can do it can undo, and be invited to undo".

"Whether parliament should do so, as a judgement about the common good (national and/or international), is a matter for parliament and its electorate."

They say the Court of Appeal in 1968 "emphasised that [the government] is legally entirely free 'to change its policy, even if this involves breaking an international convention to which it is a party" and "this has never been challenged".

Mr Larkin and Mr Finnis point out that international law "recognises that breaches of voluntary obligations will occur... [and the Withdrawal Agreement] provides for arbitration and other means of resolving the resulting disputes between the parties to treaties".

"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'," they point out - suggesting the government may argue they will only use the controversial clauses "as is necessary to avoid the UK breaching its obligations under the Belfast Agreement".