Episode 5 of EJIL: The Podcast! “Breaking Bad – in a Specific and Limited Way”

In this episode of the podcast, Marko Milanovic, Sarah Nouwen, Philippa Webb and I analyse the Internal Market Bill which is currently going through the UK Parliament. The Bill is a remarkable piece of proposed legislation in that UK ministers, including the governments most senior legal advisers, admit that the aim of particular parts is to breach international law – albeit “in a specific and limited way”! More specifically, the legislation, if adopted, will give UK ministers powers to adopt regulations which violate the Withdrawal Agreement entered into between the European Union and the UK less than a year ago. 

The podcast team discusses the reasons the UK government has put this Bill forward at this point in time, noting how rare it is for a state not only to admit to breaking international law before actually doing so, but to actually give its executive organs powers that are explicitly aimed at doing so.  The discussion turns to whether there are any international legal arguments, particularly under the law of treaties, that could plausibly justify the actions proposed by the UK government. The team also consider whether the actions taken by the UK are consistent with the rule of law: can this concept be bifurcated between the domestic and the international spheres? Finally, what should the role of governmental legal advisors should be in such situations.

Before focussing on the details of the Bill, our discussion begins with a general consideration of respect for international law in the UK at the moment. This issue is of particular interest at this point in time not just because of this Bill but because of the progress of the Overseas Operation Bills which is also also going through Parliament at this time. As discussed in the symposium (here, here, here, here, and here) held on the blog a couple of weeks ago, raise questions about the ability of the UK to comply with its obligations to prosecute international crimes committed by UK forces.  

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For detailed analysis of developments regarding the Internal Market Bill see the various posts by Cambridge Professor Mark Elliot here (for discussion of the initial version of the bill), here, here, here (for discussion of amendments to the Bill). On the duties of a government’s international law advisers, see this post by Harry Aitken.