It is of enormous concern to the Bar Council and the wider legal community that the Government is admittedly willing to break the law through the Internal Market Bill currently before Parliament; and also, clearly to one of the Government’s own Law Officers, the former Advocate General for Scotland, who felt compelled to resign over the issue. Although it is a positive that Sir Bob Neill MP’s amendment to the Internal Market Bill has been adopted by No 10, following public pressure, not least from within the Government’s own party, all it does is to kick the problem down the road. The amendment does not alter the substance of these issues but simply provides a limited safeguard. Indeed, the wording is so opaque that it may even exacerbate the position.

Still, the rule of law is not a game – of chicken, or anything else – where the players agree the rules of the game and then break those that don’t suit them. Someone committing a crime in a "specific and limited way” nonetheless commits a crime, and an admitted breach of international law in a "specific and limited way” is nonetheless a breach. Leaving the door open to such a breach is not in keeping with the standards we expect of our Executive or Legislature. Labelling this approach as an “insurance policy” would not be a defence in a court of law, and it is not a defence in these circumstances.  

No government should put before Parliament a Bill that deliberately encourages the legislature to breach international law. This is especially so where neither the circumstances nor the signatories have changed from when the Government originally signed the treaty a few months ago. The prospect of ‘no deal’ was as live an issue then as it is now. The fact that any provision in breach of international law must be passed by the Houses of Parliament is a check, but not an answer to the underlying principle. 

The role of each Law Officer is to uphold and defend the rule of law - even when it is unpopular with the Government. More broadly, all those bound by the Ministerial Code - to which this Prime Minister wrote the foreword in August 2019 - must uphold ‘the very highest levels of propriety’. The Ministerial Code and the principles of public life apply equally to international obligations as they do domestically. It is no answer that the duties are unenforceable, save for a Prime Ministerial investigation. Ministers must be able to justify their actions and conduct not only to Parliament but to the public – who will undoubtedly be affected by the ramifications if this proposed breach is committed.

In 2018, Lord Keen said: “It is essential that the Law Officers are champions of the rule of law within government and it is equally important that you are given reassurance we fulfil that role.”  If accurate, the fact that the Government chose not to take advice from Treasury Counsel who, since the 1930s, have been appointed to advise government as the most expert, independent advocates, but from those with links to the Cabinet Office, seriously dents that confidence. 

These actions undermine the rule of law. They undermine our long-held, but easily lost reputation as a country of integrity and our credibility as a leading nation to whom others have looked for support of the rule of law. They undermine our ability to negotiate trade deals with other nations, not just with the EU but other trading partners across the globe. The enormous consternation at the UK Government undermining our country’s international credibility cannot be overstated. At this critical moment in our history, we are trying hard to promote our reputation as a leading global centre abroad; the damage done through this approach to international treaties is immense.

Even in light of the amendment, the effects of the Government’s stance will be far-reaching and to our long-term detriment.

Amanda Pinto QC

Chair of the Bar