After taking a backseat to the COVID-19 pandemic over the last several months, Brexit is back in the headlines. The Government’s United Kingdom Internal Market Bill has provoked considerable outrage across the political spectrum due to the fact that its provisions run afoul of the Withdrawal Agreement between the UK and the EU. The Scottish and Welsh governments have also criticized the bill, claiming that it will undermine their respective devolution settlements.
The bill establishes general principles for a UK-wide internal market. The Government argues that this is necessary to ensure that people and businesses can trade throughout the UK without having to worry about different rules in different parts of the country. In order to achieve this for Northern Ireland, the bill forbids the Government from taking any action that would impose barriers on goods traveling between Northern Ireland and the rest of the UK. It would also allow Ministers to reinterpret and disapply parts of the Northern Ireland Protocol to the Withdrawal Agreement. Ministers would be allowed to use these powers even if they violate “any relevant international or domestic law.” Furthermore, these powers would be largely exempt from judicial review by UK courts. The Government has defended these proposals as a safety net in case the UK and the EU can’t agree on a permanent trade agreement. Whatever the merits of that position, the bill will tarnish the UK’s reputation abroad while potentially igniting constitutional crises at home.
The fact that the Withdrawal Agreement was only signed in January and the Government is already trying to pick it apart means that other countries will be justifiably chary of the UK’s good faith when negotiating future agreements. It’s unrealistic to assume that the UK will always get its way in future negotiations, and there will inevitably be compromises. But how can the UK be taken seriously as a negotiating partner if there’s a real possibility that the Government will turn around and ignore those compromises when it suits them to do so?
In the domestic sphere, the Internal Market Bill also has the potential to kick off a fresh wave of constitutional turmoil. Even if it makes it through the Commons unaltered, it’s far from certain that the House of Lords will be as lenient. While the Government claims that the bill is subject to the Salisbury-Addison convention (which says that the Lords won’t reject bills arising from the Government’s manifesto commitments), that interpretation is problematic to say the least. It’s unlikely the peers would reject the bill outright, but they may insist on amendments the Government doesn’t like. If the two Houses can’t reach an agreement, the bill will be lost. The Government can ultimately use the Parliament Acts 1911 & 1949 to get the bill onto the statute book, but the House of Lords could still delay the bill for a year.
The unhappiness of the Scottish and Welsh Governments toward the Internal Market Bill is also a worrying sign. It’s no secret that the Scottish Government (and the people of Scotland) want to stay in the EU, and recent polls have shown increasing support for Scottish independence. The bill will likely fan the flames of Scottish nationalism even further, and another independence referendum might see the rejection of the Union. And while independence has traditionally been less of an issue in Wales, the proposition is gaining ground there, too. If the Welsh feel that the UK Government is riding roughshod over the devolution settlement, Welsh nationalism could become a far more potent political force.
Then there’s Northern Ireland. If the UK’s actions result in a hard border between Northern Ireland and the Republic of Ireland, it could make a union with the Republic a more attractive proposition than the current union with Great Britain. The removal of a key promise of the Good Friday Agreement could even bring about a revival of the Troubles.
The Internal Market Bill is just the latest in a series of hardball tactics pursued by the Government in pursuit of Brexit. In the process, they have inadvertently highlighted some of the problems with Britain’s uncodified constitution. The doctrine of parliamentary sovereignty means that Parliament can make or unmake any law it pleases, even if doing so will have profound and potentially long-lasting ramifications. The Internal Market Bill will likely lead to further debate over Parliament’s untrammeled authority and whether the time has come to rein it in through a codified constitution.
Brexiteers wanted to leave the EU in part because they wanted to take back power and restore the sovereignty of Parliament. It would be ironic if their victory ultimately led to the dissolution of the Union and/or the permanent subordination of Parliament to a codified constitution.
A Venerable Puzzle 