The Bill breaches the withdrawal agreement by saying that the Northern Ireland secretary could decide that article 10 will “not be interpreted in accordance with case law of the European court” or “in accordance with any legislative act of the EU”. This prevents a party taking an action to the European Court of Justice if they believe there has been an illegal state subsidy.
The Bill also deprives individuals of their ability to challenge a decision by the UK, which violates not just the protocol but article four of the EU-UK withdrawal agreement.
It is also possible that, in line with some judicial comments in the Privacy International case, a court might be prepared to say that Parliament cannot entirely oust judicial review — thus seeking to address the weaponisation of parliamentary sovereignty head on by denying it. That, however, would be a very unwise step for a court to take, particularly at the present time — not least because it would precipitate precisely the fight with the judiciary for which the Government has been spoiling since it lost the prorogation case last year.
The Internal Market Bill thus sets the scene for a perfect constitutional storm: a confrontation with the EU, a stand-off with the courts, a fundamental attack on the rule of law, and a diminution of the UK’s commitment to the rules-based international order.
The Lord Chancellor, whose role as a constitutional guardian of the rule of law is recognised by statute, must surely now consider his position.
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