Internal Market Bill prompts questions on UK's commitment to rule of law
JENNIFER VENIS, IBA MULTIMEDIA JOURNALIST
In early September, the British Government introduced its proposed Internal Market Bill to parliament, a piece of legislation that has quickly become highly contested. Ostensibly intended to protect the United Kingdom’s internal markets if negotiations on a post-Brexit trade deal with the European Union break down, the Bill’s text has raised questions about the UK’s commitment to the global rules-based order.
The Secretary of State for Northern Ireland, Brandon Lewis, conceded in early September that the Bill’s proposals would, in a very ‘specific and limited way’, break international law.
The proposed Bill, which passed its first round in the House of Commons in mid-September, is designed to enable the free flowing of goods and services in the UK’s internal markets after 1 January, when the UK will leave the EU’s single market and customs union.
It contains several controversial clauses and notably confers the UK government with powers to breach the legally binding EU Withdrawal Agreement and its Northern Ireland Protocol. The Withdrawal Agreement governs the Brexit transition period and was agreed and signed by the UK and EU in January.
The UK Prime Minister Boris Johnson has called the powers within the Bill ‘an insurance policy, and if we reach agreement with our European friends, which I still believe is possible, they will never be invoked’.
But regardless of invocation, many critics of the Bill – including several former Prime Ministers and many in the UK’s legal profession – argue the drafting of a Bill with such powers has already irreparably damaged the UK’s reputation as a defender of the rule of law, and may be a breach of law itself.
In early October, the EU put the UK government on notice, with the European Commission President, Ursula von der Leyen, stating: ‘This draft bill is by its very nature, a breach of the obligation of good faith, laid down in the withdrawal agreement. Moreover, if adopted as is it will be in full contradiction to the Protocol on Ireland and Northern Ireland.’
Under the original text of the Bill, which may still be amended, the British Government would be able to ‘disapply’ exit procedures regarding goods moving between Northern Ireland and Britain, regardless of whether such powers are exercised in a way that’s incompatible with the Withdrawal Agreement.
The Bill’s Clause 45 seeks to ensure that in any clashes between domestic law and the Withdrawal Agreement, domestic law overrides the Agreement, stating ‘Certain provisions to have effect notwithstanding inconsistency or incompatibility with international or other domestic law.’
“Treaty obligations are binding upon the UK, and to suggest that they are not ‘because Parliament is sovereign’ is as embarrassing as it is dangerous
Mark Elliott
Professor of Public Law & Chair of the Faculty of Law, University of Cambridge
The head of the UK government’s legal department, Sir Jonathan Jones, and the Advocate General for Scotland, Lord Richard Keen, were among those to resign in reaction to the Bill.
Toby Cadman, European Regional Forum Liaison Officer of the IBA War Crimes Committee and an international law specialist, notes that in mid-September the Secretary of State for Justice Robert Buckland said that he will resign if he finds the law has been breached in a way that he finds unacceptable. Cadman says, ‘You have to ask yourself the question, is there a sliding scale of acceptability of breaching international law?’
A spokesperson for the Attorney General’s Office (AGO) tells Global Insight that ‘the Bill is designed to create a legal safety net and is in accordance with principles of parliamentary sovereignty. The Government maintains that it is asking Parliament to support the use of the provisions in the [Bill], and any similar subsequent provisions, only in the case of the EU being engaged in a material breach of its obligations and thereby undermining the fundamental purpose of the Northern Ireland Protocol and the integrity of the United Kingdom.’
The spokesperson adds that the government is clear that it is acting in full accordance with UK law and the UK’s constitutional norms.
The AGO points to the government’s published legal position on the Bill, which argues the Withdrawal Agreement is ‘expressly subject to the principle of parliamentary sovereignty’.
However, Mark Elliott, Professor of Public Law & Chair of the Faculty of Law at the University of Cambridge, disputed all aspects of the government’s published legal position, calling the parliamentary sovereignty approach a ‘non sequitur’.
‘The UK may have left the EU, but it has not left the community of nations or the rules-based international order,’ he says. ‘Treaty obligations are binding upon the UK, and to suggest that they are not “because Parliament is sovereign” is as embarrassing as it is dangerous’.
He tells Global Insight that he regards this as a dangerous notion because it undermines commitment to the principle of the rule of law. ‘It gives the impression,’ he says, ‘including to domestic audiences, that the internal concept of parliamentary sovereignty somehow means that the UK is in a special position when it comes to the legal requirement to abide by international law’.
UK Attorney General Suella Braverman has consistently defended the Bill. In the House of Commons in late September, she argued ‘the question of whether in law the Government can act in this way is very simply answered: yes, they can. The question of whether they should is one for political debate, not legal argument.’
The Bill’s Clause 45 also removes the scope for ‘challenge before domestic courts to enforce the rights and remedies provided for in the Withdrawal Agreement’, according to the government’s own legal position regarding the original text.
Raphael Hogarth, an associate at think tank the Institute for Government, expressed concern via Twitter that this means the government is trying to create a non-justiciable power. This concern is shared by Lord Charles Falconer, the UK’s Shadow Attorney General. He says, ‘the government is trying to make clear in the drafting that no international agreement can trump this statute. They’re also trying to reduce as much as possible the ability of the courts to interfere by judicial review.’
Since the original Bill was published, amendments have been made including a clause that, according to Professor Elliott, suggests judicial review of regulations made under Clauses 42 and 43 may be possible. Paragraph 46 of the European Convention on Human Rights (ECHR) Memorandum for the Bill as amended in the House of Commons Committee claims Clause 45 does ‘not operate to oust the judicial review jurisdiction of the courts although they exclude the ability to find that that [sic] the regulations are unlawful on the grounds that they are incompatible with a rule of international or domestic law’.
But concerns about the government’s commitment to the rule of law extend beyond Clause 45.
Professor Elliott tells Global Insight that ‘the Internal Market Bill is part of a bigger picture whereby the UK government’s willingness to subject to external checks and balances, whether from Parliament or the courts, is increasingly in doubt.’
He points to concerns over the bypassing of Parliament in relation to the making of Covid-19-related regulations and the Independent Review of Administrative Law – intended to consider options for reforming judicial review – as examples of this.
The AGO did not comment on Global Insight’s question regarding any erosion of judicial review.
Image: I. Salci / Shutterstock.com
Spotlight on virtual networking at IBA 2020 – Virtually Together Conference
The IBA 2020 – Virtually Together Conference – to be held 2-27 November 2020 – provides an exciting new way to bring the IBA and the world’s legal community together in a spirit of shared purpose.
In addition to a programme of over 250 working sessions, the Conference will feature over 100 virtual networking sessions, enabling committees, delegates and speakers to continue the conversation. These virtual networking sessions will provide you with a video networking experience that is as close to networking in-person as possible, and will still enable you to make invaluable contacts, and develop new business as you would during the IBA Annual Conference.
Two types of virtual networking session will take place. Firstly, the IBA will provide Session Networking Hubs at the end of each working session for attendees to join and video chat with other participants. These Hubs consist of a virtual immersive space comprising of interactive ‘rooms’ and ‘tables’ within those rooms. They will use video, audio and chat to allow people within the space to interact naturally in real-time. Delegates can move around the tables to interact with multiple people in one networking session.
The second type will be the Committee Networking Sessions, hosted on the IBA social networking platform with real-time video networking between committee members. These Sessions will provide an excellent opportunity to hear about the committee’s activities and find out how to get involved.
The IBA will also be running a number of free-to-attend Open Access Sessions during the IBA 2020 – Virtually Together Conference. Highlights will include the opening ceremony address by former UN Secretary General Ban Ki-moon, and sessions on human rights due diligence and the use of technology in pro bono.
Register to attend individual Open Access Sessions
More information about the IBA 2020 – Virtually Together Conference
IBA launches Doing Business in Asia Pacific
The IBA Asia Pacific Regional Forum has published the first edition of a comprehensive, innovative guide on conducting business in the Asia Pacific region.
Titled Doing Business in Asia Pacific, the 535-page guidebook provides regional and international companies with consolidated knowledge and practical insights from expert lawyers in respect of 11 jurisdictions - Australia, China, Hong Kong SAR, India, Indonesia, Japan, Malaysia, Singapore, South Korea, The Philippines, and Vietnam.
A useful tool for both investors and legal professionals alike, the guidebook can be downloaded from the IBA website. Doing Business in Asia Pacific covers numerous wide-ranging topics, including: business environment; business and corporate structures; takeovers; foreign investment; restructuring and insolvency; employment; industrial relations; work health and safety; tax law; intellectual property; financing; privacy laws; data protection; competition law; and dispute resolution.
IBA Asia Pacific Regional Forum Co-Chairs, Clare Corke and Sky Yang, and Vice Chair and project lead, Hideaki Roy Umetsu, commented, ‘We sincerely hope that this guidebook will be of great assistance to everybody doing business in this region, or to those who simply wish to deepen their legal understanding of this huge market, which, by all indications, is poised for even greater growth in the coming years.’
Download Doing Business in Asia Pacific
IBA webinar programme continues into autumn
The IBA has continued its programme of webinars into the autumn. The IBA’s committees and fora continue to organise and host a large number of webinars on topics such as Covid-19 and mining law; environmental activism; and the European fashion and luxury industry post-pandemic.
In September the IBA Legal Policy and Research Unit, supported by several IBA committees, hosted Domestic violence: why and how should legal workplaces look to address it? This webinar examined a deeply worrying phenomenon that the IBA is keen to draw attention to, especially in the context of a pandemic forcing full-time home working on many.
The IBA Human Rights Institute has also continued to host webinars, with the most recent event entitled Crackdown in Zimbabwe: a serious challenge to the Rule of Law and Human Rights. This webinar was supported by the IBA African Regional Forum, and assessed the continuation of human rights violations in Zimbabwe since 2017.
View the IBA’s webinar programme and access recordings of past events
New LPRU and BHR Committee contribution paper on ‘Human Rights Due Diligence for Artificial Intelligence’
The International Bar Association’s Legal Policy and Research Unit (LPRU) and Business Human Rights Committee (BHR Committee) have recently published a guidance document on ‘Human Rights Due Diligence for Artificial Intelligence’. The document, a collaboration of the Working Group formed between LPRU and BHR Committee officers, has been submitted to the ad hoc Committee on Artificial Intelligence of the Council of Europe (CAHAI) as part of the IBA’s work on business and human rights.
The contribution paper is a response to CAHAI’s call for contributions to its draft feasibility study, launched in June this year. It aims to shed light on legal challenges faced by businesses when preventing, mitigating and addressing adverse human rights impacts associated with artificial intelligence. It contains recommendations for business entities to carry out human rights due diligence as defined by the United Nations Guiding Principles on Business and Human Rights, as well as guidelines provided by the Organisation for Economic Cooperation and Development. The paper also recommends looking at upcoming European Union legislation on mandatory human rights and environmental due diligence.
This contribution paper is the latest offering from the IBA and its work on artificial intelligence, with previous publications focusing on the legal implications of disruptive technologies such as artificial intelligence, and human rights risks related to contact tracing during the Covid-19 pandemic.
Read the guidance document here
Ad Hoc Digital Economy Working Group’s submission to the European Commission
In September, the Ad Hoc Digital Economy Working Group of the IBA Antitrust Committee submitted a response to the European Commission’s Directorate General for Internal Market, Industry, Entrepreneurship and Small and Medium Enterprises, and the Directorate General of Communication Networks, Content and Technology of the European Commission, regarding their Consultation on an Ex Ante Regulatory Instrument for Large Online Platforms.
The submission draws on the experience of IBA Antitrust Committee members, within the European Union and internationally, that have experience with the types of issues raised by the consultation. The submission contemplates the need for a new regulatory tool, addresses each proposed policy option and considers experiences in other jurisdictions with similar issues regarding large online platforms. The IBA Antitrust Committee also urges the Commission to clarify procedural safeguards, including the rights to defence, confidentiality and juridical review.
Making America Global Again
The United States’ presidential election taking place in November 2020 offers an opportunity to take stock of the last four years and of the Trump administration, which many agree has been characterised by a destructive approach to international liberal order.
Since 2016, the US has dramatically shifted its approach to international matters, by withdrawing from a number of deals and agreements, including the Trans-Pacific Partnership, the Paris Agreement on climate change and the Iran nuclear deal.
In this podcast, foreign affairs experts give their views on how the United States should reengage and rebuild in 2021:
- Charlene Barshefsky, US Trade Representative under Bill Clinton;
- John Bellinger, US State Department Legal Adviser under George W Bush; and
- Richard Haass, US State Department Director of Policy Planning under George W Bush.
Access the IBA's podcast series here
Premier League football: copyright spat derails Saudi ambitions
EMAD MEKAY, IBA MIDDLE EAST CORRESPONDENT
For months, Saudi columnists agreed that a bid by their country’s sovereign wealth fund, the Saudi Public Investment Fund (PIF), to buy Newcastle United, an English Premier League football team, wasa visionary decision by ‘the leadership’.
‘Some three billion people follow the Premier League across the world,’ wrote Saudi columnist Bader bin Saud in Al-Riyadh Daily. ‘The acquisition will be an effective soft power that will help Saudi Arabia both politically and to compete for the exclusive rights to air the Premier League.’*
PIF led a consortium with PCP Capital Partners and Reuben Brothers that offered nearly $400m to buy 80 per cent of Newcastle United. The takeover soon confronted stiff opposition.
The first attack came from TV broadcaster beIN SPORTS (beIN), owned by Saudi Arabia’s regional rival, the Government of Qatar. BeIN, which has invested $15bn in television rights and acquisitions worldwide, urged the Premier League to block the Saudi offer after sounding the alarm on unlawful practices, including piracy and copyright infringement.
BeIN is in a three-year contract worth $525m to exclusively air all 380 Premier League games to 23 countries in the Middle East.
The scuffle began after Saudi Arabia led three other Arab countries in imposing sanctions and an embargo on Qatar. A Riyadh-based piracy network, beoutQ, started targeting the Premier League and other competitions by illegally carrying beIN’s programming in Saudi Arabia and across the region. The Qatari group said beoutQ began selling their exact same programming through new TV boxes, but labelled with a different watermark at lower prices.
PIF is chaired by Crown Prince Mohammed bin Salman, the de facto ruler of Saudi Arabia, who has vowed to limit Qatar’s role on the world stage and win business from them. Coinciding with the rupture with Qatar, Saudi viewers expressed concern they will now miss their favourite sporting events. An influential advisor to bin Salman, Saud al-Qahtani, pledged to find alternatives to beIN’s shows in Saudi Arabia.
The Qataris were visibly rattled. If the Saudis could snatch away rights to the coveted Premier League, they could also sabotage Qatar’s plans for hosting the 2022 FIFA World Cup.
BeIN scrambled for the legal option and initiated a series of trade disputes against Saudi Arabia over 2018 and 2019. They asked for a billion dollars in compensation for banning the TV broadcaster in Saudi Arabia.
In mid-June, a World Trade Organization (WTO) panel issued a decision in a complaint filed by Doha in 2018. It concluded that Saudi Arabia was violating the WTO regulations by failing to protect intellectual property rights. The panel urged Riyadh to take immediate corrective measures.
With intense Qatari lobbying, several other leagues and teams spoke against the industry-scale piracy stemming from Saudi Arabia but said they found no one willing to legally represent them inside the Kingdom, where businesses are mostly dominated by the ruling Al Saud family. ‘Over the past 15 months, we spoke to nine law firms in Saudi Arabia, each of which either simply refused to act on our behalf or initially accepted the instruction, only later to recuse themselves,’ FIFA, the international governing body of football, said in a statement.
FIFA turned to satellite providers and urged them ‘to stop providing a platform for piracy.’
The Premier League itself said it was siding with ‘legitimate Premier League rights holder across the Middle East and North Africa, BeIN Media Group’ to end the broadcast piracy.
The spat also attracted major non-sports international organisations who warned the Premier League against the Saudi bid. Amnesty International and Human Rights Watch, for example, pointed to egregious Saudi rights violations as grounds for barring the Saudi government from buying sports clubs.
The Saudis and Arabsat, the Saudi satellite that airs beoutQ, have denied involvement in copyright violations or TV piracy. Saudi media said beoutQ was actually ‘Cuban’, not Saudi, and that the authorities confiscate beoutQ boxes whenever found. Saudi officials urge the international community to instead look at how migrant workers are being mistreated in Qatar, particularly in sports-related construction sites.
Riyadh also banned beIN in Saudi Arabia on antitrust grounds and later appealed the WTO decision. But legal experts say that despite the appeal, the Qataris are in a stronger legal position.
‘The latest Saudi attempt may be a failure, and it would be better on the part of Saudi Arabia to engage in good faith with Qatar to agree on a specific arbitration mechanism,’ says Dr Ghada Darwish, Membership Officer of the IBA Arab Regional Forum. ‘We believe that Qatar had taken the necessary legal measures for this and will continue in the same way.’
Darwish, who’s also an arbitrator at the Court of Arbitration for Sport, argues that ‘Saudi Arabia’s breach of the rules of the WTO and its violations of intellectual property rights due to its piracy of sports broadcasting rights owned by the Qatari BeIN company could be interpreted as sufficient reasons to prevent them from buying sports clubs. However, more investigations and findings may be considered if necessary.’
* Author's translation