What are the implications of the Internal Market Bill for human rights?

Les Allamby, Chief Commissioner, Northern Ireland Human Rights Commission (NIHRC) writing in the November 2020 issue of CAJ’s Just News.

In mid-July 2020, the government published its White Paper on the UK internal market. The introduction set out the following: “The United Kingdom has long been a trusted trading partner in the global economy. Our unyielding commitment to the rule of law and the highest standards – enshrined in law across the board, our dedication to the protection of employees and the environment, our openness to competition and the control of subsidies or the energy and innovation of our business sector, means we are a robust open and trusted partner, right across the economy.”

Less than eight weeks later, the government announced that the Internal Market Bill’s measures will “break international law in a very specific and limited way”. The bill has ramifications on two fronts. In 2019, I was at a meeting in Geneva with UK officials to discuss the government’s role on the international stage post Brexit, the argument was lucidly made that the UK would have more autonomy and deftness to intervene as an honest broker freed from needing to agree positions in advance with 27 other member states. The only difficulty with this position was that everyone else we met was pointing out that the vacuum left by the United States increasing antipathy to international institutions, including human rights ones, was largely being filled by China and the European Union, and not the UK. An exhibition outside the Human Rights Council Assembly Hall (no doubt handsomely paid for) attempting to extol the virtues of Uighur camps in China as educational development centres was a depressing example of soft power in action.

Playing fast and loose with international treaties once signed hardly endorses the UK government’s credentials as a broker on the international stage able to invoke the importance and value of upholding the rule of law and international human rights norms and standards.

Second, there is the practical consequences for the Ireland/ Northern Ireland protocol and its commitment to upholding the UK government’s promise of “no diminution of rights under the rights, safeguards and equality of opportunity section of the Belfast (Good Friday) Agreement”. Putting aside for a second where such a laissez faire approach to international agreements begins and ends, the Internal Market Bill and its amendments seek to make clear that challenges to parts of the bill cannot be lawfully made under the Human Rights Act. Only a month earlier the government had issued an explainer document outlining how the key human rights and equality provisions in the Belfast (Good Friday) Agreement are supported by the European Convention on Human Rights, including access to courts and remedies for breaches of convention rights. NIHRC and the Equality Commission for Northern Ireland (ECNI) published a joint briefing raising concerns that amendments to the bill undermine key provisions of the Good Friday Agreement.

Moreover, beyond the lack of adherence to an international agreement and domestic human rights standards, will the other parts of the Bill have an adverse impact on the work of the two commissions in their role as a dedicated mechanism to ensure no diminution of rights? I am not absolutely convinced it will have no effect, and the two commissions have sought reassurance and clarity that provisions around indirect discrimination in the bill do not seep into the protections of equality and human rights within the protocol.

All of this sits alongside the long-standing commitment of the government not to reform the Human Rights Act while the UK remains a part of the European Union, including during the transition period, a time frame soon coming to an end. Meanwhile, the Ministry of Justice in Britain has recently published a call for evidence on whether judicial review strikes the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government.

In tandem with all the uncertainties for business and trade as the UK exits the European Union, we need to add the long term protection of human rights and legal remedies, which suggests that the need to remain vigilant around securing the protections contained in the Good Friday Agreement is as important as ever.