The other day, a Government minister announced that the Government were about to break international law in a specific and limited way. Their comments related to the latest stage of Brexit negotiations and the Internal Market bill that is going through the House of Commons at the moment.
Before I go any further, I want to repeat my view that the very fact that a Government minister declared a willingness to break the law was morally wrong in and of itself. Furthermore, the example set of being willing to go back on your word is horrendous. Regardless of whether or not a law has been broken, there has been a clear moral failure here.
However, just because there was a moral failure and just because the minister said the Government would break the law, doesn’t mean that a law has necessarily been broken. I may convince myaelf that living on a diet of jelly beans is breaking the law. I may announce my intention to break the law by doing this. My lack of concern for my health and my willingness to break the law may be morally wrong and I may be breaking house rules and going back on my word to my wife but no matter how much I believe I am breaking the law and not matter how many jelly beans I consume, I have not in fact broken the law.
So, in the midst of a mixture of outrage, amusement (the jokes write themselves) and a very effective online trolling of the Government, the risk is that we don’t stop to ask what is actually happening here. Therefore, I thought I would include a few articles looking at what the issues are in a little more detail.
The first issue is the question of what international Law is and what it means to break it. When I was at University reading law, there were expectations about which subjects you should take in your final year in order to progress in the legal profession. This tended to include complex (in my opinion dull) but potentially lucrative areas of law such as Commercial Law. However, during my second year, I decided that I did not wish to pursue a career as a solicitor or barrister. This freed my up to make my own choices. I realised that there were potentially interesting subjects to look at such as English Legal History and International Law.
I was right to choose them. I found them enjoyable and happened to be good at them too gaining firsts in both modules. However, International Law was the poor man of academic law to the point that where success in other modules might lead to additional prizes being awarded at graduation, my professor had to acknowledge that no such prize existed in this area. I say this not to boast but to make the point. International Law has in recent years become accepted and lucrative but it was not always that way and this change seems to have happened without any public debate or consideration.
You see, the question back in the early 90s was whether or not calling something Law actually made it law. You might have something that modelled itself around legal processes but it would not necessarily be law. If International Law is law at all, then it is closest perhaps to contract law and property law. That is because it is based on agreements between consenting parties but instead of those parties being individuals and companies, they are Governments and alliances. Yet, there was a strong view that vital ingredients were missing so that you could not really consider it law.
Again, to help our understanding, this might be similar to a group of people declaring themselves to be a church but when we look, we find that although they gather together in an ornate building and sing songs, there is no teaching of the word, no communion and no baptism. We would say that such an entity, whatever it is, is not a church.
Now, what are the crucial ingredients for Law? I would suggest that they primarily consist of a sovereign body to make and determine laws and similarly a body empowered to arbitrate justice, ensuring the laws are enforced and handing out penalties when laws are broken. In the UK, this means that Parliament is sovereign. It can make rules and it can change them. In fact Parliamentary Sovereignty is so important that there is a principle that a parliament cannot bind its successor. In other words, the 2019-2024 Parliament may amend or replace any legislation for the 2017-2019 parliament (and before) that it sees fit.
So, when it comes to International Law, who is the competent sovereign body? Well arguably, such bodies exist in relation to War and Peace (The UN) and to human rights (The ECHR and ICHR). However, in so far as they have a level of sovereignty, it is only because Governments have ceded that sovereignty to them in the same way that EU states have chosen to pool sovereignty together. Even then, this looks like a legal fiction because in reality, Governments choose voluntarily to sign treaties and at any point, sovereignty means that they can end their treat agreements. This may lead to a loss of public standing in the International Community or even to sanctions and military action but this should not be confused with trial and punishment for law breaking.
In the case of the UK’s relationship with the EU then it would have been possible for the UK to have broken EU law as they were part of a treaty that clearly ceded sovereignty. This is not possible now as the UK are no longer part of the EU. Similarly, it may be possible that the UK has broken its own domestic law but this issue will be removed by the passing of an Act of Parliament which will change UK domestic law.
Therefore, it is arguable that the Government was entitled to make a treaty agreement with the EU. If Parliament revisits the matter, it may conclude as a sovereign body that it wants the UK to withdraw from such an agreement. Britain and the EU are both entitled to do this. In that sense, whilst they may be seen to be acting immorally, it is possible to argue and conclude that they haven’t broken any laws.