 OK, well I think I'll I'll start with the the welcome and the introductions now as as people are arriving because we've got a very full schedule this morning and I want to make sure that we keep the time so welcome to this faculty of law webinar, which is organised by three of our research centres, the centre of European legal studies, the centre for public law and the latter fact centre for international law. I'm Mark Elliott. I'm the chair of the Faculty of Law here in Cambridge, and it's a great pleasure to welcome you to this event. We've brought together experts from across the faculty and from across those three research centres in particular to consider the the constitutional and the international and the EU law implications of the United Kingdom internal market bill this morning. Clearly it's a hugely important and significant piece of legislation, the Attorney General referred to it in the House of Commons last week as a landmark piece of legislation, which it certainly is, although perhaps not for quite the reasons that one would hope. But I'm sure that we can get into all of that as the discussion unfolds this morning. So we have a number of speakers and colleagues who will be chairing sessions across the three panels that we've put together this morning. And our speakers include Marcus Gehring, Alicia Hinarios, Alison Young, Catherine Barnard, Lauren Bartels, Kenneth Armstrong and Martin Steinfeld. I'm going to hand over to our first panel in a second, but before I do just a very quick thank you, because events like this take a lot of organisation. And so I'm particularly grateful to my colleagues, Marcus Gehring, who was led the coordination on the academic side. And our colleague Daniel Bates, who is masterminding all of the behind the scenes work to make things work. And certainly I'll work seamlessly all morning and that's thanks to Daniel. So without further ado, I'm going to hand over to our first panel. Thank you very much, Mark. I'm going to chair this very first panel. My name is Marcus Gehring and we have a first Professor Barnard, Professor of EU Law in the Law Faculty and a fellow of Trinity College. And we have Dr Lauren Bartels, who's a fellow of the Lautbach Centre and a fellow of Trinity College and Dr Martin Steinfeld, who is a fellow of Hughes Hall. If I could invite, if you have any questions, we're going to answer them in the question and answers section. But if you have questions while we are discussing issues, please use the Q&A function in this webinar. Could I ask Professor Barnard to start? Thank you very much indeed. Can you see the PowerPoint? Has that been shared? Yes, we can see it. OK, thank you very much indeed. Thank you, Marcus, for organising this. I'm going to kick off by just talking a little bit about specific aspects of the internal market bill as they relate to the Northern Ireland Protocol. I am, of course, aware of the much broader issues that arise under the internal market bill and respect to mutual recognition and non-discrimination. I won't be talking about those today. Now, just by way of context, this is a reminder, this is a graphic which is not mine. It's just a pity Irish Times. It's a reminder as to what was agreed in the withdrawal agreement specifically in the Northern Ireland Protocol. In order to avoid a hard border between the North and South of Ireland, there were a couple of alternatives. One was to read the Mays alternative that the entire United Kingdom would stay in the Customs Union. That was rejected by Boris Johnson and he favoured the fact that Northern Ireland would essentially double hat. By that, I mean it would officially be in the UK's customs territory, but also de facto it would be in the EU Customs Union. The effect of this means that there is effectively a border down the Irish Sea and that there will be checks on goods going from GB to Northern Ireland. And also there are ways of not having to pay tariffs on certain goods, but the bottom line is there will be checks on goods moving from east to west. And also there will be a need for exit decorations on goods leaving from Northern Ireland. And all of this is written rather obscurely into the Northern Ireland Protocol. Now, it came increasingly clear that the UK government did not like what it signed up to, specifically the idea that there should be checks on goods going from GB to Northern Ireland. Nor on the fact that there should be exit decorations on goods leaving Northern Ireland. Nor the rules on state aids. And it was two of those things that appeared in part five of the UK internal market bill. And I will briefly summarise them so you can see what the legal problems might be. First of all, clause 42 of the bill expressly gives ministers the powers to disaply the rules on export decorations, i.e. goods going from west to east from Northern Ireland to GB. And you can see that in clause 42 for disaply or modifying the application of an exit procedure. Now, I just want to pause here because it is somewhat surprising that it should be clause 42 about exit decorations that have appeared in the internal market bill. Because the concern seems to be that Michael Gove had got spooked by a apparent threat from the EU that the UK would not or GB specifically would not get a third country status on goods moving from east to west. I need to go back to my diagram before where the red arrows are. And so, because they were worried about that, therefore they want to make sure that there should be no checks, but that's not what is in clause 42. Clause 42 is entirely about west to east. It's not about east to west. And so it didn't actually deal with the problem that was on the tin, the problems they perceived that the EU would be imposing checks on goods going from GB North Island because the UK would not get third country status. Indeed, they might be able to block all of UK goods going into Northern Ireland because the UK haven't got this third country status. It's not clear as whether there was some deep confusion going on. If you look on the EU's own website, well over 100 countries have got third country status, even countries like Afghanistan. So it's very surprising that the UK would not have third country status given our rules will be aligned on midnight of December. Nevertheless, it's also the case, it seems that the UK have actually asked the third country status, nor indeed have the UK offered the EU the equivalent of third country status in the UK. Now, we have since heard that the EU say that as long as you apply for third country status, we will get it because our rules are aligned. Nevertheless, in the finance act, it's thought that there will be provision to deal with the east-west border issue, but at the moment the internal market deal only deals with the west-east border issue, i.e. the exit declaration point. The next clause, which is problematic deals with state aids, and the problem about state aids is as follows. The language of article 10 of the Northern Ireland protocol is, it must be said, broad. And it covers UK measures, not just Northern Ireland measures, but UK measures, which in some way support Northern Ireland business, which effect trades between Northern Ireland and the EU. So, as George Perret very eloquently puts it, if the furlough scheme had been introduced after January of 2021, the furlough scheme would have to be notified under the Northern Ireland protocol under article 10 because it benefits Northern Ireland business and therefore has an effect on trade. Now, of course, that's not the end of the story because of the chance that the furlough scheme or its successor would be approved because the EU has shown itself to be flexible over these types of schemes in the context of COVID. Nevertheless, it's the very fact that it has to be notified in the first place to the EU suggests that we no longer have the sovereignty that has been much discussed. And that's why article 10 is deeply unpopular in number 10. And you can see that in clause 43, particularly 43-2, it gives ministers powers to modify or modify the effect of article 10. And also note article 43, really D, article 10 is not to be interpreted in accordance with the case of article 10 just as either or in accordance with any of the commission's measures. So you're really seeing that the Belt and Brace's job to turn off the effects of article 10 if the ministers should so use those powers. Clause 45 is the other very problematic clause, and I think my colleagues will talk about this much more later on, so I don't want to go into any detail here. But crucially, for my purposes, since I'm going to be talking about the EU dimension, is it essentially turns off the principle of direct effect of articles 5 on exit declarations and 10 on state aides. And this is directly contrary to article 4, not of the Northman principle, but of the withdrawal agreement itself. Article 4, I'm always amazed to see it in the withdrawal agreement because it essentially turns back on direct effect and supremacy of EU law. And I always thought that this was a dog waiting to bark. And it may be for that reason that section 38 of the EU withdrawal agreement act, which my colleagues will talk about later on, had more resonance and perhaps we thought of at the time. Now I want to draw your attention to article 5, which is also in the withdrawal agreement, which says that both sides should act in good faith. There is a strong argument that by even proposing these measures, the UK is not acting in good faith. There's also an argument that there's a breach of article 184. Article 184 talks about best endeavours that both sides should act in good faith in negotiating the future trade agreement. And the argument goes that by the UK, even tabling the UK internal market bill part 5 is constitutional dynamite as Mark described it. And that undermines the good faith negotiations in respect of the future relationship. The argument goes, if the UK can't be trusted in respect of sticking to its obligations under the withdrawal agreement, why would it be trusted in respect of its obligations under any future trade agreement? The government, as you will know, has had a significant backlash about all of this and put out a policy paper trying to indicate the circumstances when it might use the powers in clauses 42, 43 and 45. And this includes, for example, if you look at E right at the bottom of the screen, refusal to grant third country listening to UK agricultural goods. So to deal with that problem real or perceived that might be going forward. What is puzzling is, was there ever any need for the UK to go down this nuclear route? And I say that because Article 16 of the Northern Ireland protocol does actually give power to both sides to adopt safeguard measures, but they should do it, not unilaterally in the way that the UK has done it, but within the framework laid down in annex seven of the protocol. Look at Article 16 sub three. Presumably the UK didn't go down the after 16 route for the simple reason that the safeguard measures have got to be restricted with regard to that scope. I'm looking after 16 one of it underlined and duration to what is strictly necessary to remedy the situation. Turning off all of article 10 on state aid presumably does not satisfy that strict proportionality test. Finally, what can be done? As we know, the EU is cross about what the UK has proposed. Although I would say it is not, it's publicly haven't been as the separatly cross as you might have expected, given all of the care and attention that has been lavish by both sides on drafting the Northern Ireland protocol. So what can be done about it? Well, what about the let's look at break it down in respect of the breach of articles five and 10 of the Northern Ireland protocol. Remember five is on exit decorations and 10 is on state aids. The EU could start off the two five eight enforcement proceedings. This is expressly permitted by Article 12 for the Northern Ireland protocol. The question is, the fact is the, does it matter whether the UK has given itself powers to do something rather than having exercised those powers? Will that make a difference? Can the EU actually take an anticipatory branch of its provisions as arguments both ways, which would be discussed later on. What about breaches of articles four, five and one eight four of the withdrawal agreement? There, I think it's possible that the dispute resolution mechanism in the withdrawal agreement itself, remember that's the new dispute resolution mechanism consultation arbitration. And then off to the ECJ, if that's going to be your state, that could be triggered. I believe the government recognized that in its statement on the 75th of September, where it says that if it decides to use the powers it's given itself underclaws is 42, 42, 42, 45. It will initiate the dispute resolution mechanism industrial consultation, but the dispute resolution mechanism can't be used until after the first of January. Thank you very much. Thank you, Catherine. Now we're going to discuss the constitutional aspects, the public law aspects of this initial dispute. Dr Steinfeld. Thank you all. We're going to be discussing the constitutional aspects of this on two other occasions, and I'm grateful for Professor Anderson Young, who will be going into more detail in relation to perhaps the rule of law aspect of this. I'm going to focus very briefly on the political aspects of this process. I'm very grateful for Professor Barnard in actually outlining in concrete terms the implications of this new bill. I would, as I said, like to focus a little bit on the political implications. The title of this particular part of this meeting is the withdrawal agreement, the Northern Ireland protocol and the withdrawal agreement act. And in brackets it says special status of EU law, international law and UK domestic law, and then why are state aid and customs checks a problem for the UK internal market. So, starting off in a rather anodyne way, the simple answer to that question is because the provisions of the Northern Ireland protocol on both, so state aid and customs, were in reality a de facto seeding of some sovereignty of Northern Ireland by the United Kingdom Government. This is why the previous Prime Minister Theresa May wouldn't countenance this type of arrangement. This is why constitutional lawyers have continually speculated as to whether it is possible to achieve the completely bipolar opposite aims of ensuring that the Northern Ireland remains part of the United Kingdom whilst ensuring that there is a common travel area in order to ensure adherence to good Friday agreements. The simple solution of perhaps focusing a little bit on the politics here to this conundrum has seemed to be well because Boris says so. In other words, what was unpalatable and repeatedly said to be unpalatable by Theresa May when she was Prime Minister was suddenly acceptable because the clock was ticking and because Boris Johnson's Prime Minister was somehow able to gather Parliament together to allow for in effect. This kind of de facto seeding of sovereignty, which in all its complexity was outlined by Professor Barnard. Making it a little bit less dry, I would like to focus on this aspect. For those of you that have seen friends, there is an episode involving Joey going on a date. Joey goes on a date to a restaurant and he does not like sharing food. This is the heart of his conundrum and his date wants to eat chips from his plate. He really doesn't like it. He goes on a second date then puts a plate between his date and his plate so that so that she can instead eat from that middle plate. She still wants to eat chips from his plate. They then come to ordering dessert and she orders a chocolate cake, which Joey really wants. She then makes it clear, no hang on hang on, it works both ways. You won't share with me so you can't touch my cake. Then goes to the toilet and comes back and Joey is covered in chocolate. He's looking bloated and I always remember this particular line. He says something like, I don't even care. To me, this is to a certain extent what the attitude of the current UK government seems to be. They almost seem desensitised to the controversy of what they have incorporated in terms of clauses 42, 43 and 45 of this internal market bill. Mark Elliott, of course, started these whole proceedings called this constitutional dynamite. It's offensive to pretty much every aspect of domestic constitutional law one can think of, and Suella Braverman, the Attorney General, essentially made the point that, well, it doesn't matter, Parliament is sovereign, we can essentially do what we like. Ignoring the fact that the reality is you cannot exist, the United Kingdom cannot exist in the hermetically sealed bubble. It's a very simplistic view of diplomatic relations, if anything else. The inattempts, or at least the initial drafts of article 40, sorry clause 45 did to restrict or ask judicial review to limit the application of the European Convention on Human Rights. Nicola Sturgeon, the leader of the Scottish Nationalists said that this is an abomination that would cripple devolution. Conservative backbenchers no less feel deeply uncomfortable about it. The former Prime Minister made statements about this. The EU's Commission formed the view that it breached the Good Friday Agreement, and essentially every aspect of international and domestic constitutional matters appear to have been breached. So the question is, well, why? Kenneth Armstrong, who's Professor Kenneth Armstrong, who's coming on soon, made the point that this is a fight the government wants, because they want to essentially get revenge for the number two case. Catherine herself, Catherine Barnard, has made the point that this was not necessary, because Article 16 of the protocol seems to cover that. Perhaps the only couple of elements that I would like to add to this is firstly that there are ambiguity. Why is the UK doing this then, apart from the obvious brinkmanship in relation to negotiations that are taking place right now? Well, firstly, I think they just are crippling insecurities that are evident from the withdrawal act itself and this new bill. Article 6 of the protocol on Northern Ireland makes it clear that there is such a thing as the UK internal market. Section 38 of the withdrawal act of 2020 makes it clear that Parliament is sovereign, and perhaps it's worth focusing on clauses 1441 of this act, because it clearly is an attempt to continue this type of discourse that the UK has its own internal market, and thus Northern Ireland is part of it. The final point I would like to make, because I'm conscious of time, is that all of this seems to militate in favour of suggesting that the EU regime in terms of enforcement was always better. I'd always wondered what the UK government might do if it attempted to reverse Section 7A of the withdrawal act of 2018 in terms of the direct effect of EU law. Well, it's done just this, and it's done this in effect by the stroke of the Minister's Pen. As Oliver Garner put it in a recent article, the enforcement mechanisms under both the withdrawal agreement and also the Northern Ireland protocol, the Northern Ireland protocol clearly being stronger, are simply not the same as anything that existed prior to this, and the UK government in effect doesn't feel that it has as much to lose as perhaps when it was having its behaviour checked under the EU regime. Thank you all, and I look forward to hearing from Dr Barcles next. Thank you very much, Martin. Laurent. Yeah, hello everybody, and welcome. I actually don't have that much to say on this panel, but never fear. I'm on the next two panels. Catherine and Martin both covered pretty much all the ground I think that we needed to cover in this panel, which was essentially to set up what is going on and why there might be a breach. We'll talk about breach a little bit more in the next panel, so maybe I'll leave what I was going to say about an actual breach there for there. But maybe just to, you know, do what academics do to keep each other in business. I thought I might just disagree with Catherine a little bit. Just in case anybody thinks that there's a single answer to everything. It's not a big disagreement. Maybe just a couple of points. Firstly, I mean, I agree with virtually virtually everything, but these are minor points on the safeguards option. I thought I might say something about that. So article 16, I know this has been discussed in the Twitter sphere and press and so on. I think even the opposition even came up with this idea. I'm not quite sure where this came from, but they mentioned this at one point as well. So what are safeguards under article 16? Well, the first thing to note is that a traditional safeguards clause, and I'm a trade word, by the way. A traditional safeguards clause in an FTA is focused on imports and essentially what it's about. It's a safety valve that you agree to when you liberalise to cope with unexpected situations, unexpected situations which lead to more imports that you didn't anticipate, which then also caused damage to your domestic industry. So that's the standard. And then you're allowed to impose temporary trade restrictions. In other words, you know, you agreed to liberalise, you cooked it all up at home. Everybody's not exactly happy, but they can cope with the completely unhappy with the amount of liberalisation they have to put up with and import competition. But there's more than everybody anticipated and therefore, you know, it's a safety valve to force measure something like that. What about article 16? And that doesn't really seem to be the situation here. For a start, we're talking about exports, at least exports from Northern Ireland to the rest of GB. It's an internal situation in UK internal market. It seems that we had to be talking about article 16 in this mistake. Well, the first thing to note is that article 16 is actually relatively broad. It talks not just about import surges and so on, as is traditional, but it talks about the application of the protocol causing disturbances of a social or economic nature. So already, you know, what sort of disturbances could we be talking about? Economic disturbances doesn't really seem all that plausible. I mean, you don't have to waive, which is what the bill does, export declarations, which is pretty trivial, frankly. It's an administrative hassle, but it's not much more than that. And they're probably not even necessary from the EU's point of view. I understand that they're not that fixated on that aspect of protecting the exports, the export declarations. With the state aid, I mean, again, this is unlikely to cause social and economic disturbances if you don't have a, if you're forced to have a state aid regime, right? Which is what would be required. So what really are we talking about? I think it would probably have to be social disturbances and essentially the argument there would have to be well. You know, if we are applying a rule that says you have to have export declarations and if we aren't allowed to dump money on GB companies that affects trade with Northern Ireland or on Northern Ireland companies, then we are going to have social disturbances. I think the real reason that Article 16 doesn't work is first of all the timing is all wrong. I mean, it's not enforced. So, but that doesn't really matter because, you know, when it's enforced, could the provisions in the internal market bill then be triggered? Now, I don't think the problem is one of proportionality, as Catherine said, because the regs under 42, 43, 44, they don't have to be adopted and they can be adopted in a very minor form. So they could be proportionate, right? What is not necessarily proportionate is the bits of the bill which constitute a breach earlier than the adoption of the regulation, which, as Catherine was saying, is the removal of direct effect in a very concrete way. And that, you know, is that proportional? Well, I don't know. Maybe it's not. There's more of an argument there, but we just don't know the regulations. So I suspect that the reason that this wasn't canvassed as an option was really that it's too soon because all we're doing now is setting up the situation for before. And secondly, that maybe it's a bit of a stretch to say that there will be social disturbances from the application of EU law in Northern Ireland. We don't know. I mean, what are we effectively saying by saying that? I don't know. The European research group will get so upset by this that there will be the, you know, much fable marching on the streets and so on. And that will cause a social disturbance. I mean, we didn't see that when it was much more important at the time of real Brexit. So I'm not quite sure that we'll see it now. So I don't know. I just don't think the fact really, you know, justify even on the expanded view of safeguards measure that you have in article 60. I don't think they justify safeguard measures. And you've got a timing problem. Hence, I think there was just an attempt to go direct. And of course, this was also done for signalling purposes to the EU. Now that takes me to article 184. Could you say this undermines the article 184 referenced negotiation? Well, the EU doesn't seem to think so. They're quite happy to proceed on to tracks. So I think that's pretty much the end of that argument really. I mean, you know, they're proceeding. Right. So how can undermine negotiations, which the EU doesn't say are being undermined? I just don't really see it. And in any case, what is going on with the Northern Ireland protocol would only become a problem if there aren't FDA negotiations. So if anything, this should promote FDA negotiations to take away this problem. So that's a line of argument. I don't see. I think it's simpler than all of that. We're really just talking about, you know, at the moment, I think a breach of the obligation to grant the parts of the withdrawal grant, which are relevant direct effect. And by the way, let's not forget those parts aren't enforced yet. Those parts only come into force on the 1st of January. So can there even be a breach now? Well, let's leave that one to the next panel. It's just a few, you know, points that I thought I would throw in just in case everybody thought that it came between all. Don't have a debate. Thank you very much, Lauren. And I hope this will generate some questions for our Q&A later on. I'll hand over to Dr Ina Rechos, who's the incoming director of the Center for European Legal Studies. Alicia. Good morning. Thank you, Marcus. Good morning, everyone. I am. Let me welcome you all to this second panel of this UK internal market bill rapid response event. Now the speakers in the first panel have done a fantastic job of setting the scene. And they've explained to us of the given us an introduction to the substance of the bill and the Northern Ireland protocol and the political background behind this. This second panel will focus on the fact that there's a potential breach of an international law treaty. And what this has to do with the rule of law and parliamentary sovereignty here in the UK. Is there a breach here? Does it matter? Is it prevented or should be precluded by the ministerial code? And why are the administration, the devolved administrations concerned by all this? Now we have again three Cambridge experts who are going to talk to the international law aspects of these questions. The EU law aspects and the UK public law ones. We have Dr Loran Bartels again, Dr Marcus Gehring and Professor Alison Young. And we'll start with Loran. So without further ado, thank you. Well, hello again. Nicely back. So now I'm going to talk a little bit about breach and in particular, how breach of a treaty, what that means in international law terms and also what that means. A little bit in domestic law terms. So Catherine in the last panel spoke about what the breaches are likely to be. The government said that there would be a breach of the protocol in a limited and specific way. And as Catherine said, those breaches are of a few different sorts. Firstly, I think the main ones would be that the internal market bills provisions saying that there cannot be direct effect directly contradicts what is said in article four of the withdrawal agreement. Doing this in domestic legislation, at least at the time that domestic legislation comes into force, which I think is supposed to be just before the end of the transition period in December. I think the government is planning to put this forward for final vote. As I understand it, it could be wrong there. At least at that point, probably violates article five of the withdrawal agreement on good faith. And then when the regulations, if any are adopted, they would undermine and violate other parts of the protocol, but that can't happen until the provisions of the protocol are in effect, which is only from the first of January. And if regulations are in fact adopted, so just saying that you can adopt them doesn't actually do anything. So we have some, let's say, technical violations about the hierarchy of EU, or sorry, the withdrawal agreement in domestic law, but we don't yet have any substantive violations which we might affect. So let's assume that there are these breaches. What does that mean under international law? The consequences we will deal with in panel three. Well, the first thing is, I thought I might just address what the Attorney General said and has been well-addressed out there in public discourse already. Everybody tuning in has come across this already, but just to recap, what the Attorney General said was that one has international law, which one likes to comply with, which is all very true. But she then went on to say sometimes sovereign interests make that undesirable. And then in a third point, domestic parliamentary sovereignty prevails over international law. Well, the first of these statements is true. The third of these statements is true, but irrelevant from an international law point of view. And the second of these statements is undesirable. So what does this all mean? Yes, of course you should comply with international law. International law itself says that and I'm well aware of the circularity of this. Article 26 of the Vienna Convention on the Law of Treaties is Hed paktasun servanda, which means for those who is Latin as Rusty, do what you agreed or to give you the English. Every treaty enforces binding upon the parties to it and must be performed by them in good faith. So you need to comply with international law. Now, what about the second statement that national interests mean that sometimes you've got to breach international law? Well, there's no real exception for this. You can't. There are exceptions for, you know, there are limited exceptions when you are allowed not to breach international law, but there are exceptions to international law, which mean you don't need to perform an obligation to international, an obligation in international law. But that's not what the government was claiming here. That, for instance, would be the use of the safeguards clause that we were talking about earlier, but that's not what's being done. As far as we know, there's just an outright breach. That just can't be done under international law. You can't violate law. That's really quite simple. Now, what about the third point, which is, well, we've got parliamentary sovereignty in this country? Well, that is true, of course. And in domestic terms, as in just about, you know, well, every common law country anyway, there's a so-called dualist system where you have domestic law, which may or may not care very much about international law. And then you have international law, which very clearly doesn't care about domestic law whatsoever. Article 27, the next provision of the Vienna Convention says, very clearly, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. There is an exception for rules of a very significant constitutional nature, which you would be violating if you signed the treaty, which the other party was aware of. It's almost impossible to find those cases, and it's clearly not present in the current case, because, you know, the UK internal market is, in fact, protected in the Northern Ireland protocol. Plus, you know, there's an election endorsing this and so on. So I don't think anyone would say that that exception, that's basically, you know, there's a military coup. Everybody knows that the government's got absolutely no authority, only controls a tiny bit of the territory. It's that sort of thing, right? Not what we've got here. And even with a military government, there was an international court of justice case that said that's not, that was unconstitutional in Nigeria. The international court of justice said in a case involving Nigeria and Cameroon, well, that's just bad luck. I mean, you know, you've got to handle your military governments and the other side isn't expected to know whether or not that's constitutional. And so this is very hard. So the basic rule to come back to it is Article 27. International law doesn't care about parliamentary sovereignty. If you want to go down that route, you are simply breaching international law and that's pretty much the end of the story. So I think that probably all I need to say there and happy to hand over to my colleagues to deal with the specifics. Thank you, Lauren. Marcus, would you like to go ahead? Yes, thank you very much. I would say that you law does care about parliamentary sovereignty, but in a specific and limited way. Let me be quite clear. There is no special provision in EU law or in my view an international law that makes a breach of international law that is very specific and limited better than any other breach. But be that as it may, this is in my view a proxy battle about yet again supremacy of EU law and direct effect. So the twin engines of European integration have been prolonged and the debate about them has been prolonged by the withdrawal agreement. And that's why we're finding ourselves in these in this predicament. The European reaction is devastating, right? Many in the European press loved what the Shadow Secretary of State for Business said when he called it legislative hooliganism, which resonates quite stockly in Europe. Liberation called it. Weep more putar, the landscape resembles a field of ruin, right? The ruinous field is left by this law or the Zutdeutsche in Germany said Johnson's maneuver is a threat to democracy. Well, the European Commission has reacted slightly more soberly and I think Catherine Lauren referred to it saying the UK has seriously damaged trust between the EU and the UK. So why is that the case? Well, the first part is the direct effect part. And there we're going to discuss article four, which is a very special provision indeed, right? The EU has gone to great lengths to ensure that the UK, even after leaving the EU will comply and make the provisions of the protocol and EU law that is applicable to the UK binding inside the United Kingdom. And I understand that constitutionally that is very complicated. But initially I think the EU accepted even this strange sovereignty clause that was introduced in the last minute to the withdrawal agreement act. In many ways, these provisions are legacy of EU law, which has the same effect in the remaining EU member states, right, to which the UK by the way contributed until the first of February 2020. But they raise similar questions in the UK constitutional order as the direct effect of EU law did prior to leaving the EU. It's a continuation of the supremacy debate by other means. And my publisher always says, make a pitch for your book, so if you want to know more about it, read your second constitution if you're interested in. It's a fairly good formulation of supremacy and direct effect in article four. Because it says the provisions of the agreement and the provisions of union law made applicable by this agreement shall produce in respect of and in the United Kingdom the same effect that those which they produce within the union and its member state. So, to all of you who are students of EU law, I say, you really need to know EU law quite quite quite quite well in order to determine whether a provision has direct effect enjoys supremacy. In a normal supremacy situation where a member state breached say a state right ruled or an export declaration rule. Well, we could resort to all the other mechanisms that we have for supremacy. We could say, can we interpret UK law broadly. We could interpret it in a way that in makes the UK comply with these provisions. In my view, I don't think so. I think the internal market bill is so explicit in the provisions that detail that European Union law the withdrawal agreement the Northern Island island protocol. I don't enjoy direct effect. Don't enjoy supremacy over other domestic law that I think it's very difficult to see this not already as a breach once the the the bill has come into force off article four of the withdrawal agreement. I also supplemented and I think Catherine Lauren refer to it by article five which specifically says that the party shall refrain from any measure which could jeopardize the attainment of the objectives of this agreement. Those two provisions article four and article five are very similar to the provisions in the EU treaty and I would expect the court of justice if it ever recalled to interpret those provisions to interpret them in a similar way. So where does this leave us with regards to the breach of EU law. I think already the enactment of the UK internal market bill would breach the withdrawal agreement Lauren called it a technical breach. I think not granting direct effect not granting full access to the courts, not granting authorities in Northern Ireland the right to notify for example state aid measures in my view undermines article four and and therefore from from my perspective in the grades in indicates a great propensity to to breaching the withdrawal agreement here. Thank you. Thank you Marcus. It's move on to Professor Allison Young who is going to talk to us about the UK public law aspect of all of this. Thank you as I'm going to be looking in the third panel consequences for the rule of law and sovereignty what I want to focus on in the second panel. All these issues to do with the ministerial code. Is it a breach of the ministerial code should be care and also trying to touch on aspects of the devolution angle. So why is it that the devolved legislators are so concerned about this issue of international law as well as the other consequences of the UK internal market bill and don't worry. I will talk about root of law and sovereignty later on in the third panel if I do that now that will be the end of your talk you will not get down with anything else. So in terms of the ministerial code the reason why this argue that it hasn't reached the code is because you may remember way back in 2015 the ministerial code was changed. So in 2010 the ministerial code was meant to be read alongside the overarching duty on ministers to comply with the law quote including international law and treaty obligations unquote. And then along came the 2015 version and we have an overarching duty on ministers to comply with the law, but we've got rid of we deleted, including international law and treaty obligations. So there are various concerns that this meant the ministerial code was trying to send a message that ministers don't have to comply with international law or treaties. This was subject to a challenge of judicial review brought by the Gulf Human Center for Human Rights, and they were trying to argue that this was problematic. They weren't allowed to bring their action for judicial review. One of the reasons was because it was argued that actually there was no change. And the reason there was no change was that there's always been an overarching legal duty to comply with the law that includes aspects of international law and treaty obligations. And in case you're wondering and want to know what evidence the court relied on, they relied on ministerial statements, including a statement by Lord Forks that this is not meant to get away, not meant to remove international law obligations. So in that sense, even with the modifications, I would say yes, this is problematic because are you really as a minister complying with your international law and treaty obligations if you're proposing legislation or then later on enacting delegations. Of legislation that will override them. Why is that a problem? Legally, that's not going to be a problem because the minister can turn around and say, but the legislation says I can. The ministerial code is not law. It's not domestic law. It's just an aspect of a code. It sets out internal rules. It might codify some conventions. It will be added to by conventions, but it's not something that's enforced in the court as also the judicial review case on the modification made clear. This doesn't change the law. It's not something that could be seen to be law. It does matter politically because politically you're saying you're willing to go away and act contrary to this particular code, albeit in a specific and limited manner. So the question then becomes what are the consequences if you breach the ministerial code? Well, often the consequences are not all that much. What we are seeing is political consequences because it does lend political weight to those criticising this particular direction, either from opposition parties or from the media drawing attention to these particular elements. But there's another modification of the ministerial code, which people aren't necessarily as aware of, which took place in 2019. In case you're wondering what this is, breaches of the ministerial code in the 2018 version said if there was a breach of the ministerial code, then that will be referred to the independent administers, independent advisers of ministerial interest. If the prime minister, after consulting the cabinet secretary, feels of this warrants further investigation. This is now being changed to the prime minister may prime minister does not have to consult the cabinet secretary and it's referred to the cabinet office and not the independent advisers of ministerial interest. In other words, this is weakening the possible internal mechanisms through which you can regulate internal breaches of the ministerial code. And that's also being ratcheted up by a greater weighting and the 2019 version of the code towards protecting collective ministerial responsibility when you have a large number of ministers on the payroll. In other words, it's problematic politically, not necessarily legally, but the mechanisms of enforcing this politically are not necessarily as strong as they might even have been a while ago. I'm a never all that strong necessarily anyway, so it raises up all sorts of problems with regard to the UK constitution as to how we go away and regulate this kind of behavior and whether these political mechanisms are sufficient. What about the devolution angle? Well, from the perspective of the devolves international law is obviously reserved. It's the subject of Westminster and there isn't a great role of the Westminster Parliament when it comes to scrutinising actions of the executive and there's an even smaller role of the devolves over this. They can discuss it in their own particular parliament, but there's no set role for them to have an XA over it, and yet they are required to go away and implement it. And the different devolved bodies in their own areas can go away and implement international law in devolved areas. So Wales, for example, has incorporated the new and convention of the rights of the child in Wales because it's within its particular area of devolved powers. Why is this a problem? Well, you're being required to uphold and enforce international law. You don't necessarily have a say in how this international law works. And the joint ministerial council, which is the best way of getting any kind of indirect influence doesn't necessarily work as an effective means of allowing them to have that particular say. Balls to that with other aspects of the UK internal market bill, which are undermining potentially the devolution settlement, so state aides are now definitely reserved. There are various ways in which the UK government can go and implement grants across the UK as a whole interfering with various fiscal policies of the different devolved legislatures. They can go away as a devolved legislature and enact measures that might be to protect health of the environment, but the mutual recognition principles means that they will have to accept goods from the UK that don't comply with its higher standards. So you can begin to see all of the problems and also they're not allowed to modify the bill. So it is not allowed to enact legislation that will modify the UK internal market bill, which of course you can understand why, from the perspectives of the devolved, this is particularly problematic, especially so for Northern Ireland. But it's also a problem with regard to Scotland and Wales with regard to their particular powers. What can they do? They can refuse consent. It's a convention to consult them. And as we know from the European Union withdrawal agreement act 2020, you can have refusal from all three, it's still law. You see the rashing up of political tensions and why this might be problematic if we think there isn't really an effective political mechanism for acting in these particular ways, particularly from the devolved perspective. There isn't necessarily an effective way of holding the Westminster government to account. Thank you very much. Thank you Alison and thank you to all three speakers in the second panel for their very clear and engaging contributions. Can I just remind everybody that you can write your questions in the Q&A box and that our speakers will have time to hopefully address them and discuss at the end of our event. But right now we are ready to move on to the third panel, which is going to deal with further consequences of breaches of international law. This will all mean for the ongoing trade negotiations and questions of international dispute settlement. So I'm just going to hand over to Professor Catherine Barnard, who is going to chair the third panel. Thank you very much indeed. I realise that we ought to agree with you first, Kenneth. Are you going first? Am I? I can do if that's helpful. That would be good, thank you. Thanks very much everybody. So I'm going to look at some of the questions round about enforcement in respect of breaches of the withdrawal agreement and the Northern Ireland protocol. I should say at the outset that I'm acting as adviser to the Finance and Constitution Committee of the Scottish Parliament's inquiry into the UK internal market and therefore anything I say I'm saying in a purely personal capacity and does not reflect the views of the committee, the parliament or its members. So I think there are two broad contexts to keep in mind when thinking about the UK's breaches of the withdrawal agreement and the Northern Ireland protocol. And the first is the imperative from a UK perspective of being outside of the EU's legal order, its court of justice, its jurisdiction and a return to a dualist relationship with international law in which domestic law filters and mediates external obligations. On the other side of that is the imperative from an EU perspective, which is to maintain and respect the rule of law and to use its enforcement machinery as a means of protection against rule of law violations. So when we look then at the withdrawal agreement and the Northern Ireland protocol we see competing models of enforcement within it. On the one hand we have a model that entails a rupture with the past as signaled by political diplomacy through the joint committee structure and the use of arbitration panels rather than adjudication to resolve disputes. On the other hand we also see a model of continuity with EU enforcement mechanisms and institutions remaining both during and after the transition period. Now the immediate response to the UK internal market bill exhibits examples of both. Commissioner Maros Sefcovic instigated an extraordinary meeting of the joint committee to raise concerns about the UK internal market bill and recall that is in the context of the joint committee that potential solutions to checks and controls on goods moving to Northern Ireland and GB may be found. And then the commission also intimates its intentions to bring legal action against the UK if there is no resolution before the end of the month. And it's that last point that I want to try and pick up and say a little bit more about. I've written on about this on the EU relations law blog and you may have seen some of that already. So until the end of December the UK is in a transition period during which it is bound by its obligations, including under the withdrawal agreement itself, as if it were a member state. Article 131 of the withdrawal agreement means that the usual enforcement mechanisms are available to the European Commission, including the power to bring infringement proceedings under article 258 of the joint committee. In addition to that, and notwithstanding the end of the transition period, article 12 of the protocol in Ireland, Northern Ireland also ensures that the commission can bring infringement proceedings for violations of the protocol and again the court of justice retains its jurisdiction. So far the commission has simply demanded that the UK withdraw the offending provisions of the bill. I don't think Kenneth realises that there's a problem with the connection. Yeah, I'm having this off my phone because I've lost my internet connection. Can you hear me now? Yeah, it's got a bit better. We heard you just up to the point where you said article 258 and then the line went down. It would be easy for you if we ask someone else to come in and then you can hear me now, Catherine. Yeah, I can hear you now. Do you want to go back to where you were just talking about that you were saying that the different ways that the EU could respond? Given there clearly is a problem here, I wonder, Lauren, do you want to offer your take on this and then we'll come back to Kenneth at the end? Yeah, sure. So how could the EU respond to this? Well, let me take it from the top, which in my world is international law. This would normally fall under article 60 of the Vienna Convention, which deals with material breaches of a treaty and I think a raising direct effect and primacy. I call it technical, Marcus, is right to pull me up and technical as opposed to let's say substantive procedural might have been better. It's so important and a question then would be does it constitute material breach of a treaty, except we don't get to that question because what article 60 also says, which honestly most people don't ever get to including the European Court of Justice in paragraph four. It says if the treaty says how breach is to be handled, you don't worry about the rest of article 60, you just look at the treaty. In other words, it's a default provision. And of course, the withdrawal agreement has lots as Kenneth was telling us about lots on what happens when there's a supposed breach of a treaty. So if this treaty has been breached and it's limited in a specific way, then you go to the dispute settlement procedures under the treaty. The EU would not be able, in other words, to rely on article 60 to simply suspend or terminate the treaty. It would have to claim that there's a breach of the treaty and go through dispute settlement procedures. So those procedures, I think Kenneth was going to get to, but I mean, in summary, there are two. In fact, he already got to this in part. There's a sort of continuation of an EU process and infringement action, which can be commenced now. And then as of the first of January, there is a panel procedure, which is modelled on normal FTA dispute settlement procedures with the addition that there can also be the imposition of a fine. But at the end of the day under that panel procedure, what would happen is the possibility of the winning party being allowed to suspend parts of the agreement, which would have to be proportionate to the agreement. The breach and the gravity of the breach, and we don't really know what that would look like. But there is, you know, it's not like you can just turn off the entire treaty, right? It would have to be a proportionate suspension and that, by the way, doesn't include the provisions on citizens rights, which are exempted from that. So maybe just taking it back a little step, you know, when is there actually a breach? I said there's certainly a breach because that raises the question of which of these procedures can be used, right? If there is only a breach right at the end of the year, it's much less likely that the EU is going to go for the, let's say, EU model infringement proceedings and much more likely that it will just wait until the first of January and go for normal dispute settlement proceedings under the treaty for reasons of political acceptability, I would suspect. You can, of course, push these things out, but why would you, you know, just bad PR for the EU to be dumping that degree of EU law on the UK once the UK is actually there. If there is a breach today by way of introducing a bill, then I think that makes more sense because the EU might want to act, except we know that the EU has said that it doesn't really want to do that. It's got the option it says that it doesn't want to. Now, could it do that? When is there a breach? I have waived it a bit on this, but I think I've come down on the side of caution and I don't think that merely introducing a breach violates, so introducing a breach, introducing a bill into Parliament actually constitutes a breach. And why do I say that? Well, under Article 5 of the withdrawal agreement, it is what the UK has obliged to do is not take any measure which would jeopardise the attaining of the objectives of the agreement. Now, the question is what's a measure? Is introducing legislation into Parliament a measure? I mean, I wouldn't say, you know, definitely not. It's only my instinct. It could be, right? But my instinct is on this that it doesn't constitute a measure and would actually need something with a little bit more legal effect for there to be a violation of that provision. But what about Article 4? Well, Article 4 says that the UK has to ensure that there is direct effect. And you could say, well, introducing a bill is not ensuring that there's going to be direct effect. In fact, it's doing the opposite. So you could say that that is, the act is, the problem is there that direct effect of what exactly? If we're talking about direct effect for the protocol, we've got a timing problem because the protocol itself doesn't kick in until the 1st of January. So you can have the elements of a bridge, but you don't actually have the bits that you're supposed to be giving direct effect to in force until the 1st of January. So you've got a different timing problem there. So I think that given all of this, my view would be that at the earliest you could say that there is a... And the other point also, if there is a breach of good faith under Article 5, so what? So what? Because we go back to what happens at the end of the day, suspension of parts of the agreement proportional to the bridge. Well, let's face it, a breach of good faith is a bit of a last refuge of the complainant. It's what you do and you don't really have much else. And it's very hard to see how that's going to sound in damages to use common law term. So what really is the point? I mean, that sort of claim is more of a political claim than anything else at the end of the day. So I think for all these reasons, what we're likely to see is a dispute settlement proceedings based on the... And of course, this depends on what happens in FTA negotiations, right? So I'm assuming there is no successful FTA. I would say that most likely there would be an enactment of this legislation towards the end of the year. And if the EU chooses dispute settlement proceedings, it will probably be based on either Article 4 or they would wait for regulations to kick in. And that would happen in the beginning of the year under the FTA style dispute settlement procedures. And then we would see what the result would be. It would be an authorisation to suspend parts of the agreement. How much could be suspended for a violation of direct effect rules? I don't know. Violation of the other parts of the protocol, clearly more by the adoption of regulations that contradict the protocol. Clearly that would be a lot more because that's what this is all about really. We're talking about trade. I mean, we can talk about direct effect on this and that, but that is procedural. At the end of the day, this is a trade agreement and we're talking about trade provisions and without actual trade damage. I find it hard to think that a tribunal would be able to get too enthusiastic about authorising the EU to do too much by way of suspension. But you never know. It might be more formalistic and we've got a long way to go for there. So I think that that's my assessment of the parameters, but it is still. Thank you very much. Thank you very much, Lauren. That's really helpful and thank you too for stepping in. I saw Kenneth back very briefly, but he's disappeared again. So what I'm going to do is ask Alison to come in next and hope that Kenneth can join us. Thank you, Catherine. So what I'm going to look at is imagining a hypothetical scenario where we have gone away. So it's come in force as is. We've gone away and the government has enacted measures which are seen to be in breach of the Northern Ireland protocol or in breach in directly of citizens rights that comes through 7A. So what do we do? Do we look at it and say, well, we've been here before in English law where we've had this conflict between direct effect and sovereignty. And somehow we've managed to find a way of, you know, somehow squaring the circle and making sure we can just about get it to work. So can't we do exactly the same thing here to which the simple answer is no. And that's why everyone's referring to this and why Professor Elliott has referred to this accurately and Kenneth Armstrong as a real constitutional storm. And that's because of the way in which this is being done and the wording of it. So there's a very similar mechanism to bringing direct effect as we had under the European Communities Act. So the way the European Union withdrawal act 2018 brings it in is that these measures are to be read and have effect subject to all the bits of elements. So all UK law that is read and has effect subject to the aspects of the withdrawal agreement that will have this form of direct effect post the end of the implementation completion day. So what we've done is it's a similar mechanism. How have we got our way out of it that makes it so problematic? We've done this in a number of ways. We've used the wonderful word, notwithstanding. So the reason we have notwithstanding is it's making it clear that this is a contradiction of the earlier requirement for this to have effect subject to. So although you're saying these mechanisms, including this delegated legislation that can be enacted is to have effect subject to these measures have effect notwithstanding that requirement, which means you're cutting off direct effect. It makes it harder for the court to get out of this particular element. Another aspect is that we've made it clear that this is what we'd call specific. So there's lots of arguments that the European Communities Act was a constitutional statute that the European Union Withdrawal Act 2018 will also be a constitutional statute. And we say constitutional statutes can't be impliedly repealed. They can only be specifically stroke expressly. And yes, we're arguing about what that might mean. But the idea is the intention is meant to be clear that you're trying to override that particular obligation. Well, this intention is very clear, both because of notwithstanding and because we're putting a section into the European Union Withdrawal Agreement in order to say, oh, and don't forget these provisions here. But all these measures take effect notwithstanding or you don't see these as having to be subject to these particular provisions. So we've made very, very clear wording to make it clear that this is the intention of Parliament to go away and enable you to cut off direct effect. It makes it much, much harder for the court to get around that. And if that wasn't bad enough, instead of saying this occurs when there is a contradiction between these measures and international law, it occurs when there may be a contradiction between these measures, which cuts off another route of, well, I'll say there isn't really a contradiction here. And so therefore it's okay, I haven't got to worry about seeing this as cutting off direct effect because I don't actually think they're contradicting each other. This is a very good way of creating a kind of problem that makes it very, very difficult for the court to use the mechanisms it was using beforehand to square the circle and allow you to comply with these international obligations while respecting an aspect of parliamentary sovereignty. It becomes even more problematic because all of these mechanisms work particularly well. If you take a particular view of how EU law worked, then it was also doing the special wording of the legislation. Then we get to section 38 of the European Union withdrawal agreement act 2020 and the reinforcement that all of these mechanisms come in because Parliament say so. Parliament has gone away and introduced this element and this reinforcement of parliamentary sovereignty. So it makes it very, very difficult for the court to get around it. Then you get clause 45, which goes away and says you can't declare them to be unlawful for these particular purposes. And there are all sorts of concerns that clause 45 goes beyond just these aspects of direct effect because relevant law is defined in such a broad way. Further on in section 45 subsection 6 that there are all sorts of issues that this could go beyond just switching off direct effect. And it causes huge problems to the rule of law. We can normally get out of but see another clause by saying you're removing the jurisdiction of the court. But obviously you can't remove the court to say this was an unlawful act because you can't question an act. But if it wasn't a lawfully enacted provision, it's not really a provision and the courts are just pointing that out. You can't do that here because you're not saying you can't question it. You're saying this is just not unlawful. And so this is a specific way of saying we are moving any form of legal challenge because I can't be a legal challenge because it just can't be unlawful for these particular reasons. So that again causes yet more element and makes it much, much harder for the court to use its traditional mechanisms as to how to potentially square the circle. It's a much more direct challenge. Please don't ask me what I think the courts will do. We won't know and a lot of this is going to depend on what amendments come through for what is currently clause 45. Half of that might make it clear that there are other aspects of judicial review that still remain in certain circumstances and just how limited and specific this breach is and what the particular delegator legislation will be that might breach these particular provisions. But what I want to set out is why we're so concerned about it is precisely because this is posing an absolute direct challenge and cutting off mechanisms we used to use before to try and reconcile the need to comply with directly effective provisions and the need to respect parliamentary sovereignty. I think I'll leave it there and hand over to Catherine so we can go to questions. Thank you. Thank you very much indeed. I'm afraid it looks like Kenneth Armstrong still has connection problems and so it's not able to come back and join us. And we do know, as he said at the beginning of his talk that he has written on this on the e-relations blog. What I will do instead, we've had a number of questions come in and I would like to try and put them to the appropriate members of the panel. And actually, inevitably, I think if we start from the end, because it builds on Alison's tantalising remarks about judicial reaction and ouster clauses, a question from Tom Spencer, of course repeatedly criticised ouster clauses recently. Supposer Minister was to use an unjustifiable power contained within the IMB. Is there a way that the courts could allow a judicial review of this power? I'll try my best. Tom is absolutely right. The courts are very suspicious and have been critical of ouster clauses. And I know in his second comment that he's referring to privacy international, which is the most recent case on ouster clauses in which you have a clear statement by three out of the seven, four out of the seven that you will be very careful to make sure you're not removing legal challenges. Three dictars saying if you try to do this and we couldn't interpret our way out of it, we might say that it's impossible and a final comment saying that will occur on jurisdiction. It's an incredibly complicated case. In response to your specific point, the whole problem with this is it has the effect of an ouster clause, but it's not worded in the traditional way that we would word an ouster clause. So instead of saying decisions can't be questioned or decisions are final, it's essentially saying you can't declare them unlawful. Why not? Because they're not unlawful because we've told you these are not unlawful if they breach these particular provisions. So I think that's why it's more problematic. That could be seen as a much clearer indication that even if there's a legal error, there's a clear indication from Parliament that even if this is unlawful, it's not something the court can challenge. And that's going to make it harder for the courts to use the traditional ouster clause kind of jurisprudence to get out of this particular provision. And it's pushing towards the more kind of stronger statements you find in dicta that if Parliament was to do something like remove judicial review, you might find the courts don't enforce that particular provision. And that's why it's so problematic that it's almost pushing to those kind of extreme elements to deal with it. Whether it cuts out all judicial review, probably not, but that's to do with how we interpret relevant. And we can't say that at the moment and it's going to depend on how successful these amendments are with regard to things like restricting time limits, which suggests that there can still be judicial review of other aspects and how father courts interpret relevant when you've got an incredibly broadly worded provision as to what is relevant domestic and international law. So I can't answer that it's going to depend on what the cases will be like. Thank you very much. Mark Elliott, I wonder Mark, if you want to add anything to the points that Alison's just made, given that you've made some fairly strong comments about aspects of the internal market bill and your wonderful public law for everyone. Thank you. Yeah, I mean, I agree with Alison that this is certainly different from the sort of the normal kind of ouster clause that we tend to think about. So we think about sort of classic cases like anismhenic and then more recently privacy international. And certainly, I think it would present a course with a different challenge from those kinds of ouster clauses. I also agree that it's hard to know what a court would do. I mean, if a court was sufficiently bold, then I think that it could say that there is still the possibility of judicial review. And I said that for two reasons. I mean, one, because I think that although it would be harder, I think that you still can just about apply a kind of anismhenic type approach because clause 45 refers to regulations under clauses 42 and 43. And there is the possibility of saying, well, if those provisions are read in the way that we normally would read them as excluding ministerial authority to breach the grounds of review, then regulations that do breach those grounds of review aren't actually made under those clauses to begin with. And I think that there's still the possibility of doing that, but I agree that the framing in this bill makes that perhaps an even bolder interpretive step for a court to take. The second reason that I think that all perhaps isn't lost in terms of judicial review is because of these rather confusing provisions that have now been introduced about the possibility of not it or about the impossibility that extending the time limits. Does seem to to concede that judicial review is possible, but then the question becomes, well judicial review on what grounds, given that we have this whole list of relevant sort of laws, which are things that we can't test the validity of the regulations against. And then finally, just to make things even more confusing, in its explanatory memorandum to the the bill for the for ECHR purposes, the government does actually concede, but it thinks that judicial review on normal grounds would be available. So it seems to be conceding something which isn't at all obvious on the on the face of the bill so either there's a cunning plan or they actually don't know what they're doing, or perhaps there's some third option that I haven't thought of. I like the cunning plan. Um, could I just follow up on it just while we're talking in this context we had a question about the justice secretary's position given the oath of office to uphold the rule of law. And my note in particular, that we have heard a general justice secretary went through voted against the amendment last night, which appeared to say that there's nothing in this legislation that otherwise would have looked for words that effect my paraphrase. Alison, do you want to say something about that and then I'll come back to market him. Thank you for that highly on controversial question. We always come back to this because we're always thinking about what do you mean by the rule of law and this is why you can on the one hand we you can say this does breach under rule of law on the other hand say it actually doesn't. So part of it we've already discussed which is this aspect of timing that would it actually not breach the rule of law until you actually went away and started and acting this. Regulation so can you say well it's timing is not not a problem now, it might be a problem in the future which which I don't think necessarily helped you because you've still got this issue of, but it's your job just where I know to uphold the rule of law more generally. That what the argument is mostly focusing on is, well if we mean by rule of law, this element of I've got to act within the law, as set out by Parliament in legislation. Then how can we I'd be breaking the rule of law in that sense, because Parliament is effectively empowered me in the legislation to go away night this provision that is called to these particular legal requirements. So it's a kind of taking a narrow view of the rule of law, whereas if you take a step back and say well the rule of law means more of that. The rule of law is a political ideal and the political ideal of the rule of law is to ensure that we have government according to the law. And that includes aspects of governing governments upholding their international law responsibilities, particularly when we're looking at your exercising your sovereignty to sign an agreement. So you're deciding to act within that agreement until you exercise your sovereignty as we did through Brexit to leave it. So I think it's this kind of element of do you mean this oath is to uphold the rule of law in the narrow sense of act according to the law is set out in legislation. Or do you mean uphold the rule of law in this deeper political sense of upholding the ideologies of the rule of law. And I think that's why you've got this divergence. I would say really it's the job of all governmental institutions, the legislature, the government, the courts to think about upholding the rule of law in this deeper ideological sense, regardless of where you fall as to what you think the legal sense of the rule of law actually is. Thank you. I really appreciate that answer. Mark, do you have anything you want to add on that point? Yeah, I completely agree and then just briefly I would add this. So I think that the distinction that Alison has drawn is certainly an important part of. Well, to the extent that there is thinking behind this, I imagine that that's part of the thinking. I'm sure that Alison articulates it far more clearly than the protagonist might. But I think that there is a broader point as well, which is it takes us back to this sort of distinction between domestic and international law. And this very parochial views of Lauren was talking earlier about the extent if any to which you know the internal concept or any any internal concept like the sovereignty of parliament is relevant once we step on to the bigger stage. And I think that this sophistry about the ministerial code not mentioning international law and the rule of law, meaning the law enacted by parliament. You know, it's a very blinkered and it's a very parochial approach and I've just found a very short couple of sentences from Lord Bingham's book on the rule of law where he says this. Among other things, it requires compliance by the state this obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations and law Bingham concludes by saying I do not think this proposition is contentious. Well, you know, I didn't think it was particularly contentious either. And I think it says a lot that you have these sort of casuistic distinctions now being drawn. And I think it's it's it's pretty obvious itself server. Thank you very much. And that leaves on to a number of questions which are various variations on the theme of what constitutes breach and something Lawrence already touched on about anticipatory breaches. Is that enough. And so we've got a question from Richard Barnes. When there's a breach of the protocol occurs actually occur by instituting legislation by passing a bill into law at a later date when acting upon this. And then he talks about the I'm struggling to pronounce it. For me, the project. On the question of a wrongful act. Lauren, do you want to engage with Richard Barnes a question. Yeah, sure. And then I see David House also got one on whether you can threaten to breach a treaty. I think I talked about this a bit already am I. It depends on the terms of the treaty right so and more specifically the terms of the obligations so the specific question here I think I already addressed is whether or not there is a measure which undermines the attaining of the objectives of the treaty right so that's what we would need to look at to work out whether or not there's a breach of the draw agreement and what is a measure. And you know it's obviously unclear in international law. They tend to wait until something's actually happened right and this also goes to the second question about from David House about threatened breach there is no problem with threatening breach so and why is this well for reasons of efficiency right you basically wait until something's happened before you start complaining that you need to be a bit blunt when it comes to international limit is. Drop a reference to the white man case because I actually think that in reverse that explains some of what's going on here so remember in white man, the European Court of Justice basically said, you can threaten to leave the EU. You can even pass legislate you can send in a notice under article 50, and then you can snap it back at the last minute, and we'll pretend it never happened. Now I was a bit surprised by that because it undermines the whole article 50 pro. I mean I still think it's the wrong. It's a wrong result. I mean it's a bad case, but it is a case which because it erased a huge chunk of article 50 in fact even it goes against the words of the two year time limit and so on with that in address. But it does speak to this which is that until something concrete has come into effect you can basically change your mind and you can threaten control and all the rest of it. The and you know and it doesn't really matter. The what what also shows this is that there is an exception to what I'm saying in one very limited respect in the UN charter article two for says that it is illegal not only to use force against another UN member state actually. But we think of this now as other countries, but also to threaten to use force but that's obviously the big one right and you can threaten pretty much anything up to. Up to the user force without without getting into trouble. Thank you. That's really helpful. Marcus, I think you might want to add something. Yeah, just to really interesting, interesting international law discussions on when exactly the breach occurs. I think enacting legislation can constitute a breach depending on the underlying treaty provisions and and Lauren is quite right threatening to breach international law is seen by many international lawyers as the normal conduct in international relations. But it it sort of depends because if that threat becomes material, then we need to sometimes the responsibility reaches all the way back to when the threat was first made. And just to to highlight, Lauren hasn't mentioned it, but a similar situation can arise with regards to non violation complaints under WTO law where the other party feels that a benefit that should have a crude hasn't a crude even though no formal breach has occurred yet. Thank you. And if I could just abuse my position as chair in the absence of Kenneth providing us an insight. I would just say it is worth bearing in mind that there is EU jurisprudence, albeit in a slightly different context. The case I have in mind is the interenvironment, while I need case case C129 of 96. And that was a case about the current commitment of a directive and the state in the implementation period went off and did the exact opposite of what the directive required. The Court of Justice said my reading from the dispute people at the end. The second paragraph of article by that's a duty of law corporation and the directive require the member states, which the directed address to refrain during the period laid down their inputs implementation from adopting measures liable seriously to compromise the results prescribed. So you could make a counter arguments of the international law arguments that actually says that actually an anticipatory breach would violate EU law and I accept we're not doing the law anymore but on the other hand the fact that article five of the withdrawal agreement is very similarly to what is now article four three to you, which in the old days was indeed confusing the article five of the EC treaty does then suggest that states that are acting deliberately in violation of obligations that they have entered into because of the breach of EU law. I mean that's that's excellent and I didn't have the time to hunt for that so I'm glad you said it but I was wondering what you all said on this, but just make two points so it's likely drawing that out of it which is what you're saying implies that it's a big question how one interprets provisions of the withdrawal agreement does does one pretend that this is a bit like EU law in which case that would, you know, be a problem. Okay, or does one say well it's international law and and you know people will probably know that this is also one of the touchy points, which is, you know, for the government at the moment which is that to the extent that there is a concept of EU law in the withdrawal agreement and independent arbitration tribunal is supposed to pay attention to what and you know take into account EU law so the concrete question would be is this an EU law concept. Or is this not an EU law concept now I think it's probably a little bit more complicated than that even because EU law itself says that provisions identical to EU law in EU third country agreements are not to be necessarily interpreted the same way I think De Morel said that on the, the EU Turkey Association agreement if I remember correctly so it could be that you end up back in the same position which is it's not a new law. It's not a new law, but I mean it just goes to show that you know it's not as easy to escape the embrace of the European cause of justice as, as I might have thought. And there's a wonderful circularity of the question isn't it because any points of the law got to be sent by any arbitration panel to the Court of Justice and so the question is, is this is a point of the law. Go back, go back to where we started. Thank you very much for that. I want to now move on to some slightly more political questions, which of course lawyers will very well equipped to answer a specific question to you Alison what role do you think populism will play in the future of discourse on the IMB. And I just wonder whether you want to just expand your answer slightly to cover anything you might want to say about the earlier parts of the IMB on mutual recognition and non-scrimination, not just part five. Thank you. I think I've obviously written on populism and I have concerns about the extent to which using populist tools so this idea of cutting out the use of experts not allowing for full democratic deliberation, harming democratic debate in that particular way can become particularly problematic. I think the concern is that instead of sitting down and thinking carefully about the ins and outs of how the internal market bill will actually work. You're going to push towards these kinds of elements of discussions and deliberations that aren't looking at it very carefully. So one argument you could see this illustrated in the particular clauses. Then instead of sitting down and thinking about well if there is a problem with regard to this element of when goods will travel from the UK through to Northern Ireland and then through to Ireland. Why don't we sit down and think about finding a solution rather than just trying to come up with something that cuts it off completely. You could say exactly the same with the way in which the mutual recognition principles are working. So there are lots of suggestions where we knew we'd have to go away and work out how to regulate an internal market. We knew that that could be difficult because there are these elements of the ability of different devolved legislatures in their own devolved powers to legislate in ways that might be a way of protecting the environment or health in a particular part of the UK that requires different protections from the rest but which might then have an impact on the treatment of goods. And instead of thinking of a solution that thinks about how can we get all of the different individuals together to come up with, in a sense, sort of looking at these provisions beforehand, thinking about them discussing about whether they could be UK wide. Instead we have this element of mutual recognition, which as we know from anyone who's done a new trade law will realise if you're not careful that at least gives rise to a race to the bottom. And unless it can be compensated with joint elements, it becomes problematic. Word right joint elements come from the aspect of using section 12 under the 2018 Act to go away and bring in these market recognitions with consent when consent doesn't necessarily mean I agree. So I think this is the problem that it's setting instead of setting up mechanisms where you can be more collaborative interactive and work together and come up with good market regulations that don't undermine the market. But which also allowed different input into how we protect things like consumer interests, environmental interests, health interests, we're moving towards a system where if we're not careful will lead to a regulatory race to the bottom. Not necessarily linked to populism, but I think it's that concern of not going down a deliberative route that I think is problematic. Thank you. There are also questions about the Human Rights Act. Martin, are you there, Martin? Yes, I am. I will actually go to, if actually I was hoping to be able to comment a little bit on the populism point. In fact, I think possibly Alison or Mark wrote a little bit about the human rights implications. Mark will probably be better on the human rights aspect. I've actually also recently just about got my book in which deals with populism to a certain extent from an EU level. Alison is really interesting stuff in relation to the specifics of populism and how it manifests itself into things such as policy. If I may, I would like to just quickly mention the role of rhetoric itself, which was, I suppose, part of my research. Populism feeds itself into language and language itself, it can, when harnessed, potentially be rather dangerous. And to me, if you can use the internal market bill as to a certain extent illustrative of what I would call discursive sabre rattling. And this is reflective of a wider populist discourse in terms of a return to sovereignty. Section 38 of the EU withdrawal Act 2020 just illustrates that perfectly. We all know as academics that sovereignty is to a certain extent in the eye of the beholder. And also does not necessitate, does not mean the United Kingdom can return to some kind of sealed bubble as I stated earlier. But that's not what often in the era of populist rhetoric, that's not what was often believed. And so, to a certain extent, the internal market bill is playing to the domestic political audience, perhaps to those sort of hardcore Brexiters who want to hear this kind of stuff. And then the dangerous aspect of it, which we've all kind of hinted at, really, and we've quite avert about, is how this will manifest itself in terms of political negotiations that are taking place right now. And I think one of the other points that we've all kind of made is that this is, in fact, Mark, your blog was particularly profound of this. This is the toxic legacy that this kind of implicit populist rhetoric within the internal market bill is fulfilling. I'm happy to answer some HRA questions if you want, Catherine, but I do remember that, Mark, you wrote a really good blog piece on this, so you're probably better placed to answer that aspect of it. Okay, in which case, thank you, Mark. Mark, over to you. Do you see Ciaran Spawr's question? Yeah, so, certainly, I've just been looking to try to find the latest version of the bill because I think it had its third reading yesterday, and I assume that the government amendments on the human rights act went through. So, I mean, yes, they relieve ministers in making regulations under Clause 42 and 3. They relieve ministers of their duty under Section 6 of the Human Rights Act in respect of the convention rights. And then they've set up this really sort of strange sort of set of arrangements in relation to the Human Rights Act whereby they don't appear to be precluding judicial review on human rights act grounds, but at the same time, they're saying that regulations made under Clause 42 and 3 are to be regarded as if they were primary legislation for the purpose of the Human Rights Act, which presumably means that they intend to manufacture the very odd situation in which you would have secondary legislation that was treated as if it was primary legislation. And then if it was found to be in breach of the convention rights, the most that a court would be able to do would be able to issue a declaration of incompatibility, which is normally reserved for acts of parliament, because obviously they can't be struck down, but now it would apply to regulations because we're pretending that the regulations are acts of parliament. And so that seems to me as if they're sort of giving with one hand and taking it back with the other, they're saying, well, yes, okay, of course, the Human Rights Act should apply and of course you can seek judicial review on human rights at grounds, but we're going to make sure that judicial review is actually entirely useless practically because there's nothing the court can actually do beyond making a declaration of incompatibility. So although on the face of it, these amendments look like they're actually making this all subject to human rights control, I think that that's actually simply sort of a cosmetic thing. Thank you very much. How long can the internal market bill be held in the House of Lords? Alison, do you have any views on that? Okay. Well, this gets us back to the delights of the ins and outs of the way in which the Parliament Acts work. So under the Parliament Acts 9-11-1949, it's acceptable for the House of Lords to refuse the bill, but it only comes in with a delay, which is effectively the maximum delay it can bring in is because of the way that the timing works a year. So this is why we talk about this idea that in some senses it could be because of the timing. There's an argument that this can also almost give the House of Lords a de facto veto because if they don't agree it in time and you have to go and use the Parliament Acts, you can't bring it in in time because you've got to wait before you can introduce it without the consent of the House of Lords. So how long can they delay? Ask the House of Lords, I think is the response. The other element of the big difference between the House of Commons and the House of Lords is that the House of Lords does not have the same internal rules and standing orders as you find in the House of Commons. So it's much easier for the government and the House of Commons to restrict debate than it is in the House of Lords. And if amendments are proposed in the House of Lords, they have to keep hearing until the end. So we've seen this tactic being used before of trying to just push lots of amendments through. So I can't answer the question, but I think you do have to be aware of how it works within the difference between the House of Commons and the House of Lords. Can I just answer very quickly on the House of Lords side of things? So I think early on in this debate, which is only a few weeks of it seems like a lifetime, the government made the extraordinary arguments that somehow the Salisbury Convention would require the House of Lords to roll over and approve this bill. And that is just nonsensical because quite clearly the bill doesn't just not implement a manifesto commitment, it goes against a manifesto commitment. And I've seen on social media all sorts of attempts to subject the Conservative Party manifesto to bizarre forms of textual analysis, but I think it is unarguable that this bill directly contradicts the central commitments of the Conservative manifesto. So the idea that the House of Lords has got to just simply go along with this is just completely ridiculous. I smile when we think of who might be drafting these manifestos whether they thought they were going to be subject to textual analysis that is normally given to active parliament. But given Twitter is now a source of all legal knowledge in all fields, which brings me to the question from towards the bottom from an anonymous attendee who says folks on Twitter, he notes that great source of legal knowledge, argue that causes 4245 risk breaching the Belfast Good Friday Agreement, especially the government amendment, which justifies section six of the human rights act, which is what Mark has just been talking about. Have any of the panel any thoughts about the law rather than the political rhetoric behind that? I haven't looked at this specifically in relation to the Good Friday Agreement and I think it's of the questioner is right, as I just said that the new amendments do disobey section six of the human rights act in relation to making regulations under clauses 42 and 43. I mean, I suspect that probably just brings us back to an earlier conversation that we had about at what point does a breach crystallize. Is it by virtue of putting these powers into the act and trying to sort of freedom of any human rights act duty or would that occur at the point of exercise. I admit what we can say is that it's certainly laying the legal foundations for that kind of breach, but there is this question about at what point would the breach crystallize. The only I would add in that respect is that the Good Friday Agreement is less specific in a number of key areas than you might have expected, particularly over some of the fundamentals, no border between north and south. The key issue there, which is something for lawyers to say, is that it's a perception which is more important than actually the law and the perception is that there should be no border and no border infrastructure. And that has always been one of the principle takeaways and great successes of the peace process after the Delfast Agreement. And I think that's implicitly acknowledged by both Theresa May and Boris Johnson, which is why in their different ways they tried to ensure that there was no border between the north and south of Ireland. They did it in different ways and of course we may soon learn about the success of Boris Johnson's roots. We will never be able to see whether Theresa May's roots would have worked. I am conscious that we're coming towards the end of that time. Elizabeth Campion asked specifically about the sort of convention which Mark has already helped to answer. But there is a more general question about whether this bill and amendments will be used to further undermine the legitimacy of the hearts of Lords. Does anyone want to comment on that, Martin? If you want to say anything, I should just say, Martin, I can see the faces of all the other panels but I can't see yours. So if you do want to intervene please let me know. Sorry, the question is, will it impact on the House of Lords? Yes, well if the House of Lords put lots of amendments into the bill, will this undermine the legitimacy of the House of Lords? I mean, aside from what Alison has just suggested really in relation to the House of Lords, if one interpretation of this is whether this will facilitate another call for reform of the Lords, I'm not sure that the Conservative Government has obviously been very, very annoyed with attempts in the past, to undermine the Commons' view on Brexit. I'm not sure, in fact Alison will probably know more than me on this, I'm not sure whether this is going to be ramping up the pressure once again for further reform of the Lords. If anything, that was more of an issue under the previous long time ago Labour Government and was proposed once again when Jeremy Corbyn was leader of the Labour Party. Whether this is going to lead, I think, to another constitutional crisis this time in terms of the House of Lords, I'm possibly, I'm not sure that at the moment this is necessarily, because of the existence of the parliament tax, this is necessarily going to be the biggest issue for the current government, but I mean it's possible that this could stoke the fires of that debate all over again. Can I just add a very brief comment Catherine? I think that it probably will have some kind of impact and I think that's probably intended. And I think that if one steps back from the immediate question, what we can see emerging, I'm not a conspiracy theorist and I hope that sounds like one, but what I think you can see emerging is a government which is intent on lighting fires in terms of its relationships with a number of different constraining forces, international institutions, international law, the domestic judiciary, and yes the House of Lords, because all of these sort of centres of authority have the opportunity, notwithstanding the sovereignty of parliament, to constrain what the executive government can do. And it seems clear to me now that there is a fairly coordinated strategy, we see it in things like the independent review of administrative law as well, to actually begin to undermine and unpick these other centres of authority, which can have a constraining effect on the executive. So will it undermine the House of Lords maybe, is that part of the plan, if it isn't part of the plan it's probably certainly a happy coincidence from the point of view of those who are driving the strategy. I'd just like to add in that we've seen this in the past where it's being perceived that the House of Lords has been exercising parts that the government doesn't want, so when the House of Lords voted against, we didn't even vote against, it voted to delay voting in favour of delegated legislation until an inquiry was carried out about the impact of various regulations on certain groups in society, particular groups in society, and that prompted a complete review by the government into the House of Lords, which was criticised by the House of Lords Constitution Committee, criticised by a public summation and constitutional affairs committee, and never implemented, but nevertheless was carried out to try and reduce the House of Lords. So in a sense you could say the governments generally have form in trying to carry out these inquiries they think the House of Lords isn't playing ball. And I think to pick up on Mark's theme, I'm not a conspiracy theorist either, but I think nevertheless there is a move to perceive the UK constitution in a particular way that it's an example of executive sovereignty. The government gets voted in, it has its term, and obviously it can do what it wants, and if you don't like it, you voted out and bring it in another government, and yes it's subject to the control of holding the confidence of the House, but if you've got a large majority and effectively can make sure you have the confidence of the House in these votes, then that's not a problem and why is this an issue, and I think that's become a growing perception of how we view the UK constitution. It's not how I view the UK constitution, I'm sure it's not how quite a lot of commentators on the UK constitution view the UK constitution, but I do think it's becoming the perception in some commentators, and I think perhaps also in government that this is what the constitution means and for me that is quite worrying that it's removing these effective checks and balances that we've had historically throughout the UK constitution. Thank you. I just want to give Marcus a chance to ask the last question on the list, which is what might be the judicial reaction of UK courts to any attempt for private enforcement of breaches of state aid rules? Yeah, I think we have to see because I think the entire state aid regime inside the United Kingdom is currently under discussion and there seems to be a problem and acting replacement legislation replacing the sort of rolled over EU law in the field of state aid. We should be reminded that the UK has already entered into international obligations with Japan, with Switzerland, with other countries that it will maintain some form of state aid regime at the end of the transition period, but we don't know the exact shape. And of course, the way these powers will then be exercised and what kind of powers the courts might have would be regulated in the state aid bill if it's enacted in time before the transition period ends. Thank you. Thank you very much for your brevity. I'm sorry about that, but our time is coming to an end. I want to start by thanking Marcus once again for initiating this to all of our excellent panellists for their views, their insights and for all the work that they're doing so brilliantly in this area. Thank you to relevant centres for hosting this and also particularly thank you to all of the participants for giving up a good chunk of your morning to listen in and to ask such thought provoking questions. I imagine we'll do another one of these because I think we have only begun to scratch the surface of some of the many issues that the IMB raises, so thank you all very much indeed.