• Amy Tan

CMI Explains: Internal Market Bill

Brexit has been a seemingly ubiquitous topic for the past few years, with seemingly endless debates and controversies surrounding it. With all of the hubbub around deals and no deals, one would be forgiven for overlooking the recently proposed Internal Market Bill. Yet it is extremely important to understand one of the reasons as to why it has caused so much contention.

EU Flags at the Berlaymont Building, European Commission

What is the Internal Market Bill?

The Internal Market Bill is a piece of legislation which aims to act as a safety net, in the case that a free trade agreement is not secured with the EU following the United Kingdom’s formal departure several months from now. This bill ensures regulatory alignment and common recognition for the standards of goods and services between the constituent nations of the United Kingdom, protecting the principles of “mutual recognition and non-discrimination”. The bill aims to confirm that there will be a continuation of barrier free trade between England, Wales, Northern Ireland, and Scotland.

This bill has generated much disagreement within the Westminster bubble, with allegations of breaking international law through disregarding international legal documents. Although breaking international law is technically illegal and will be accompanied with a range of far from positive implications, it is important to look at the bill from a holistic perspective, and to understand the nuances which make it such a controversial piece of legislation.

In early September, Northern Ireland Secretary Brandon Lewis admitted to the House of Commons that the bill did break international law, although he stipulated that it would do so only in a “very specific and limited way”. This was in reference to Article 45 of the bill which states that the government would have the ability to regulate state aid and exit procedures as they saw fit, regardless of whether or not it contradicted a previously ratified piece of legislation. This has placed the UK government under fire for directly disregarding Article 4 of the EU Withdrawal Agreement which asserts that UK domestic law is not to take priority over the withdrawal conditions secured with the EU. In essence, this bill breaches international law through a clause which prevents future policies from being answerable to a court of justice. The diverging views in regards to whether or not this should be allowed has lent itself to a wider issue revolving around international law itself.

On one hand, the implications of breaking the law if it were to be done in this case would not necessarily have negative impacts which drastically affected the UK or EU citizens at face value, rather it is a debate around precedence and value signalling, with Theresa May and many others expressing worries over the UK’s probable reputational damage as a result of the bill passing. Arguably, flexible laws revolving around exit procedures and state aid could more than proportionally benefit UK citizens, and the positive effects of the bill passing need to be evaluated. By rigidly enforcing international law, the UK will arguably remain stagnant.

Brexit has been proven to be an enduring and seemingly never ending issue for the UK, and the unique and unprecedented challenges which it has posed must be tackled through equally nuanced and productive tactics. ​Carefully constructed solutions must be possible and they cannot be limited by legislation which prevents a best case solution for the majority of the UK. From an economic perspective, the UK has always been a key cog within global markets, having the 5th largest economy in the world and the 2nd largest EU economy. It serves as a major Anglophone trading partner to the United States and many countries rely on the UK as a transnational hub.

The UK has consistently been in the top level of countries who receive inwards FDI, and contain many headquarters of significant multinational corporations, so international alienation as a result of reputational damage from the passing of this bill seems highly unlikely- even implausible. Moreover, international law is constituted of a variety of sources, through explicit written treaties and implicit customary law. As international law stems from so many sources, it becomes harder to pinpoint where a valid legal defense exists. Past precedence has shown that explicit breaches of international law occur on a regular basis, whether it be about climate agreements or foreign intervention abroad. These cases have not necessarily led to reputational damage, and have even been overlooked by international audiences. So why should this relatively benign - only potential breach of international law provoke such a disproportionate reaction?

Yet on the other hand, admitting to breaking the law in a piece of legislation which intends to go through is immensely symbolic. Beyond the current implications of the bill itself, choosing to disregard constitutional elements of the law puts the entire government and country in contention. To what extent then can a nation which overtly and deliberately disobeys layers of international law be trusted to uphold standards of justice in the context of the international community- especially as a permanent member of the United Nations Security Council? The answer is not clear but it does not bode well for the UK government.

Ultimately there is a choice which must be made, with both options containing positive and negative effects. The tradeoffs must be considered between upholding international law for the sake of tradition and justice versus creating flexible solutions to address a pressing contemporary issue. These tradeoffs must be weighed up in regards to their relative impacts over time and the current government must decide whether or not it is worth it to sacrifice global reputation for a single piece of legislation.