This week, a minister
in the House of Commons said that the government
is deliberately contemplating breaking the law.
BRANDON LEWIS: Yes, this does break international law
in a very specific and limited way.
DAVID ALLEN GREEN: This is a remarkable, if not spectacular,
development and raises obvious broad constitutional issues,
such as the rule of law, the notion that the government
should have a legal basis for what it does and should
be bound by the law.
But as well as these broad constitutional issues,
what is the underlying legal issue?
What has triggered this potential constitutional
crisis?
The problem is about something called state aid
and how it is to be dealt with on the island of Ireland
after Brexit takes full effect on the 1st of January, 2021.
State aid rules are an element of the European Union's
single market.
The single market is often understood
to mean the four so-called "freedoms",
freedom of movement of persons, goods, services, and capital.
But the single market also includes the ways
by which competitiveness is enforced,
competition laws, public procurement, state aid.
State aid is about the extent to which governments
can subsidise or assist - that is - aid, businesses.
The objective is to avoid governments unfairly
subsidising businesses to the disadvantage of competitors.
The European Union's single market, to a large extent,
came about because of the political support
in the 1980s of Conservative Prime Minister Margaret
Thatcher.
The conservative European commissioner Arthur Cockfield
worked with the then-commission president Jacques Delors
to put in place a single market by 1992.
State aid rules are a fundamental component
of the single market.
It stops governments picking winners and national champions.
As such it was very much a legal cornerstone
of Thatcherite economics.
When the United Kingdom voted to leave the European Union,
a number of complex problems were
created, including the single market, but also
many other issues.
Many of these issues were addressed
in the withdraw agreement that was signed in October 2019,
a monster document with over 540 pages.
The problems created by Brexit for the single market
were further complicated by the Irish border
and the general view that there should
be no barrier on the island of Ireland in respect
of commercial or economic activity,
and so it was agreed by the United Kingdom and the European
Union that a substantial part of the withdrawal agreement
was to be dedicated to dealing with the special problems
created by the Irish border and the single market.
A key part of the withdrawal agreement
is this protocol on Ireland, and within that protocol
sits Article 10.
Article 10 deals with state aid and the island of Ireland,
but you will see in the first sentence of the provision it
says that "The provisions of Union law listed in Annex 5,"
which are the state aid rules, "shall apply to the United
Kingdom, including," dot, dot, dot.
What this means on the face of it
is that the whole of the United Kingdom
has to have some sort of formal relationship
with EU state aid law, even after the United Kingdom fully
leaves the European Union next year.
The withdrawal agreement, including the protocol
and including this Article 10, was enacted into UK law
by the Withdraw Agreement Act of January 2020,
which, in turn, followed a general election where
the Conservative party had as an express manifesto commitment
that it was going to put into place the withdrawal
agreement, which the leader of the Conservative Party, Boris
Johnson, described as oven-ready.
But since January, the government
has become increasingly concerned about state aid.
It wants the freedom and flexibility
to aid businesses in a way which may otherwise be prohibited
by EU state aid rules.
This would mean that they would have a problem with Article 10,
and so they have to find a way of dealing
with the issue of Article 10 saying
that the provisions of the EU law in respect to state aid
shall apply to the United Kingdom
in an agreement, which the government, this government,
had freely entered into in October.
The way the government has decided
to deal with this problem is the internal market bill.
This is a new piece of legislation
which has just been published and put before parliament,
and in Part 5 of this bill, you have provisions
for how the government is seeking
to deal with the problems created by Article
10 of the Irish Protocol.
If we look at Part 5, we will see
it is entitled "Northern Ireland Protocol".
There is, in italics, a subtitle,
"Northern Ireland's place in the United Kingdom internal market
and customs territory".
You will see that is repeated as the title of clause 40,
and at clause 41, we have the title "Unfettered access
to the UK internal market for Northern Ireland goods".
At clause 42, we have the power to disapply or modify
export declarations and other exit procedures.
These are technical points, but they are important,
as we will see.
In clause 43, we have expressed mention of the Northern Ireland
Protocol, Article 10, and you will see at clause 43, 2
we have the provision which says "Regulations may make provision
about the interpretation of Article 10
and disapplying or modifying the effect of Article 10."
This is then followed by the remarkable clause 45.
Clause 45 has, in the first sub-clause,
"The following shall have effect not
withstanding any relevant international or domestic law
with which they may be incompatible or inconsistent,
section 42, regulations under section 42,
section 43, regulations made under section 43".
What clause 45 is saying is that these provisions
will have legal effect, regardless of them being
unlawful under the Withdrawal agreement and the Withdrawal
Agreement Implementation Act.
Then in clause 45-2, at sub-clause a,
we have expressly "regulations under sections 42 and 43
will not be regarded as unlawful on the grounds
of any incompatibility or inconsistency with relevant
international or domestic law".
That is a stunning provision.
It's beautifully elegant in its drafting, but what it is saying
is that this government can do things which are unlawful.
That this is the intention of the government
is made plain by the accompanying explanatory notes
to the bill.
You will see at paragraph 63 that the government seeks
to ensure that the provisions of the Internal Market
Bill relating to exit procedures and also the ability
to make regulations regarding Article 10 of Northern Ireland
Protocol are able to have effect notwithstanding any
relevant international or domestic law with which
they may be incompatible or inconsistent.
When the minister in the House of Commons
said that for breaches of law would only
be specific and limited, that is not true.
These provisions are not specific and limited
or not as specific and limited as they
could be because they cover any regulations which are made
under two sections of the bill.
This isn't just one self-contained provision.
This is a general power to remove the effect
of the Withdrawal Agreement.
This bill is still at an early stage in its passage
through parliament.
It may well be about the relevant provisions do not
survive the House of Commons.
It also is likely that the relevant provisions,
if they survive the Commons, do not
survive the Lords because the Lords is
in the slightly strange situation of being
able to uphold the government's own manifesto
commitment against the government
under the so-called Salisbury Convention, which means
that they can delay or even vote down relevant legislation which
are in breach of a manifesto commitment.
But even if it does pass both the Commons and the Lords
and receives Royal Assent and becomes primary legislation,
it may well be that there is a case which goes up
to the Supreme Court to show that this is not
an approach which can be adopted in primary legislation.
The government cannot put in a provision which says,
we are above or beyond the law.
The European Union has also taken the first step
in a dispute resolution process already
and has asked for an extraordinary meeting
of the joint committee which oversees the implementation
of the Withdrawal Agreement.
It may well be that these provisions do not
end up as part of the law.
It may well be that, at some point,
the government is defeated or has to perform a U-turn.
This situation is already more serious
than any other potential constitutional crisis
we have had so far in respect of Brexit.
The government has, on other occasions,
threatened to do one thing or another,
but has chosen not to do it, but this
is at a more advanced stage.
The government's senior legal officer has resigned over this.
A member of the cabinet has told the Commons
that the government is deliberately
seeking to break the law.
The government's presented legislation
which says that provisions will have
effect regardless of whether they
are unlawful on other grounds.
This is a new type of situation, but
any constitutional legal crisis, potential or otherwise,
exists on two levels.
There's the general plane of first principles.
Here are things like the rule of law, the role of the Commons
and the Lords, the situation of the Irish border, even
the devolved administrations.
But a constitutional and legal crisis also
exists on a particular plane.
What is the actual issue here which
the government is choosing to force the crisis over?
The government has a problem with Article 10
of the Irish Protocol.
It could have chosen to swallow that.
It could have chosen to try and find some sort of work around,
but it has chosen this way, to try and see
if it can get away with what would
be a significant breach of constitutional norms
and values.
We do not know yet whether it will succeed.
It probably won't, but it could do.
But the problem of the border in Ireland
will still be there in the morning,
regardless of whether a constitutional crisis is forced
on this or not, and it's hard to see
how forcing the constitutional crisis over the issue of state
aid on the island of Ireland, given
that it is an integral part of the single market,
is going to succeed in solving the problem which
the government faces about how you maintain
the integrity of the Single Market in Ireland after Brexit.