When lawmakers approve lawbreaking

The writer is an FT contributing editor

The House of Commons has voted, in principle, for UK ministers to have the discretion to breach international obligations.
This is a surreal constitutional moment, even if the proposal is not yet law, and may not become law. A government is proposing to act unlawfully, and a legislature is endorsing the proposal. A more fundamental deliberate subversion of the rule of law is difficult to imagine. It is almost as if a fanciful question in a law examination has jumped from the page and is rampaging in real life.
That the vote was at an early stage of the legislative process does not make the situation less absurd. The proposals may well be dropped or defeated later; the power to issue lawbreaking regulations may never be exercised; or a court may one day limit the effects of or even quash such regulations. None of that matters, for this is a significant moment and cannot be reversed.

The draft legislation in question is the internal market bill. This contains three express provisions that would enable ministers to issue binding legal instruments, even if they are in breach of applicable laws. These clauses are, in effect, licences to break international law.

The obligations that the government wants to be free to breach are those contained in the Brexit withdrawal agreement of October 2019, in particular the Irish protocol. What makes this odd is that the UK government sought and received an electoral mandate for this very agreement, and in January 2020 it was enacted by parliament into domestic law.

The same government now wants the legal means of breaching the protocol, and the democratic house of the same parliament has voted, in principle, that it should be able to have them.

But the vote is not only problematic on its own terms; it also has adverse consequences. 

One is that it creates a moral hazard. Draft legislation takes time to prepare. So while the government has been negotiating with the EU on its post-Brexit relationship, it has also been preparing the legal means to breach its obligations. Countries negotiating trade deals with the UK will be wary of this twin-track approach.

The vote also shows that the government can easily receive parliamentary approval, at least in principle, for reneging on its obligations. The legislature has thereby offered no real check or balance to the executive. Again, those dealing with Britain will take note.
A deep lack of seriousness in parliament about the UK’s new situation on the international stage is also revealed. The MPs who voted for the agreement in January are pretty much the same who voted in favour of the government on Monday. Those voting for the bill seem not to know or care that there is already provision within the withdrawal agreement for resolving disputes that makes these proposals unnecessary. They have shown, at best, a lack of proper political engagement. 

Ultimately, the vote demonstrates a fundamental misunderstanding among many British politicians of the nature of the EU as a creature of treaty law. Without law, it is pretty much nothing. This means any relationship with the UK will not be sustainable if the country bases it on a cavalier approach to international obligations, either at home or internationally.

In addition, there is one obvious effect: any government wanting to break the law can hardly expect anyone else to comply with their legal obligations. So the proposals are not only illiberal, but misconceived.

Perhaps this bizarre constitutional moment will pass. Perhaps it is an ingenious negotiating tactic. Perhaps there will soon be applause for the government on the back of this stunt, just as there were claps and cheers when it pulled off the withdrawal agreement it wants to break.

But even if it does pass, there will be a price. A government has undermined respect for the rule of law and its own credibility as a party to all future international agreements, and the Commons has shown it will not check or balance this at the first opportunity. No possible benefit is worth this cost. MPs and ministers will regret this vote in favour of lawbreaking ever took place.

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