The ‘rule of law’ impact
Yes, there was a consultation on the Internal Market Bill
There are two entirely different – and plausible – explanations for the turbulence that the Government has encountered over the Internal Market Bill.
One is that it is a deliberate and rather cynical ploy in the long-drawn out negotiation with the European Union – designed to provoke the EU to pull out of trade talks and be blamed for their collapse. Another is that mapping out the detailed administration of the movement of goods from 2021 has exposed the inherent contradictions in the Government’s policy re Northern Ireland and the failure of the Withdrawal Agreement to address the issue conclusively.
Here, however, we want to focus just on the narrow issue of the process that has led up to the current dispute.
Part of that is, of course, hidden from external view, away from Parliament, buried in Downing Street rather than departmental Ministries and beyond the reach of any Freedom of Information requests. High policy-making like this is the stuff of political novels and the truth seldom emerges, even as competing accounts arrive in the autobiographies of those involved about fifteen years from now.
One day we may learn who exactly thought up this latest manoeuvre. How the most senior Civil Service Legal Adviser felt obliged to resign, and how former Conservative Party leaders queued up to question the wisdom of ‘disapplying’ the Withdrawal Agreement treaty. Interesting word, ‘disapplying’. (Clause 42 of the Bill as currently published). To trace the etymology, we may have to wait till the current Home Secretary’s memoirs and the search for an alternative to the concept of ‘applying’ for asylum. Has any reader come across the use of this word before?
Seriously, though, there is also a public aspect to the policy-making. It was the consultation that Alok Sharma launched on 16th July, just before the Summer recess. It was blandly called The UK Internal Market It lasted a month, attracted 271 responses, and the Government’s response has now been published. The consultation paper was a serious document running to 104 pages, and a detailed exposition of the most intractable problems. Northern Ireland is mentioned 116 times., and a really careful, astute reader would probably have read between the lines that by eliminating any discrimination between goods and services coming from the four home countries, it was likely to breach the recently-signed Withdrawal Agreement. Nothing explicit. Slight-of hand maybe? Or just negligently omitted?
Eagerly, I’ve opened the much briefer Response volume to see what advice the Government received on the matter of the moment from its consultees. It was a disappointing exercise.
Here it is in full…
“Some respondents raised concerns in relation to Northern Ireland specifically. The key consideration was around how the UK internal Market provisions would relate to the Government’s existing commitments around unfettered access.” (page 9)
With such an inadequate analysis, we have no idea whether this pertinent comment came from a first-year law student or the Lord Chief Justice. Was it just a passing reference to the possible diplomatic row that might emerge? Or a full articulation of the dangers of walking away from an internationally registered treaty?
Let us be clear. Part of the case for consultation is to force difficult issues into the open by obliging Ministers and public bodies to tell the truth about the likely consequences of their proposals. It means recognising risks, and being honest about them, and letting informed stakeholders give their reactions. Failure to do so has led to countless judicial reviews that Judges have found in favour of claimants.
What went wrong?
- Any hint of undermining the Withdrawal Agreement would be controversial, but on this occasion, whoever drafted the consultation narrative, omitted to mention the issue.
- Did Ministers, maybe give insufficient attention to consultations in the policy-making progress, and leave more junior officials to go through the motions?
- And if so, were officials merely interested in the technocratics, and lacked the political nous to see the reputational issue …?
Two weeks ago, we reviewed the School examinations algorithm consultation, and found that the warning signs were there … in the consultation. We are less sure that the same early warnings appeared in this exercise. But We DO know that the Head of Legal Services felt strongly enough to resign his position. As the true consequences of the proposed legislation becomes clearer with the formidable Irish lobby in the American Congress threatening to make this an election issue, there are obvious risks that this is another U-turn in the making.
And as the Institute regularly points out, for many U-turns (not all, but enough), somewhere there is a consultation that was not taken sufficiently seriously. Is this another?
Rhion H Jones LL.B
The Consultation Institute