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UK Constitution

UK Internal Market Bill: the Archbishops are confused, poorly advised, and wrong

The Archbishops of the United Kingdom have written a joint letter fairly and equally to all tabloids and broadsheets decrying the moral state of the nation and calling for repentance exclusively to the Financial Times decrying the UK Internal Market Bill and calling for it to be amended. They could have penned a joint article for the pro-Brexit Daily Mail or the Express so that lots of people might have nourished their souls by feeding on this rare expression of collective episcopal wisdom, but they chose instead the FT‘s Europhile paywall. The medium is the message.

UK Archbishops Internal Market Bill letter FT

Speaking in the House of Lords, the Archbishop of Canterbury insisted they are not misguided or misinformed, principally because they have “listened to the select committee on the constitution, to all five living former Prime Ministers, two former Conservative leaders, and distinguished judges including former Presidents of the Supreme Court and a former Lord Chief Justice of England and Wales, to name but a few”.

So anti-Brexit Primates have sought the political and legal insights of anti-Brexit politicians and judges, who have helpfully confirmed the pro-EU bias of the Primates. Their primary concern is that the UK Internal Market Bill, if enacted, would break international law, which would have “enormous moral, as well as political and legal, consequences”. They could have listened to politicians and lawyers who take a different view, but that would have compromised the content and scuppered the timing of this letter, which was contrived to cause the Government maximum damage while UK-EU trade negotiations move toward their endgame. The Archbishops didn’t, for example, speak to Martin Howe QC or to his fellow barrister Stephen Barrett, who has written in some detail about when the UK has previously broken international law, and how the EU also breaks international law when it suits them conveniently to do so:

But do you remember when the UK broke the Geneva Convention? Oh. Well we did. The government-ratified Geneva Convention on the Sea came into effect in Britain on 10 September 1964. From then the UK was bound forever by the treaty and bound by international law. On 25 September 1964, we were not. No explanation was given. No explanation was asked.

Our Judge who ruled in favour of the government when it broke the Geneva Convention of the Sea, said this:

the Crown [The Government] has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before‘.

And writing in today’s Times:

The rule of law is an important element in our constitution, but so too is parliamentary sovereignty. It is inherent in parliamentary sovereignty that the Queen in parliament may legislate in a manner inconsistent with international law, and prospectively authorise actions which would breach international law.

Breaking international law is not a cause of rejoicing: the Archbishops’ concern is shared by very many Brexiteers, and the insistence in Parliament by a Government minister that it was okay to break international law “in a specific and limited way” was politically and legally crass. But the job and vocation of Archbishops – and of Anglican Archbishops especially – is to seek the via media and foster unity, not to hurl a grenade into a negotiation fraught with political and constitutional complexity.

The problem with this intervention at this time is that it conveys (once again) that the Anglican Church across the UK is pathologically opposed to Brexit, having previously (unanimously) endorsed ‘Remain’ in the 2016 EU Referendum. And so British Christians are confronted (again) with an imperative episcopal ‘ought’ – to respect their moral authority and political discernment, and if you don’t, you don’t really know what you’re talking about. It is (again) the language of teleology: there is (again) no attempt to balance competing visions of UK-EU relations; no consideration (again) of concessions or compromise, and no weighing (again) of variable factors in a spirit of benevolent pragmatism which usually typifies archiepiscopal interventions in partisan political policy.

It is rare indeed to see all the UK’s Anglican Archbishops eschewing the essentially Anglican impulse (or, indeed, the essential Anglican impulse) to transcend temporal divisions and foster reconciliation in democratic worldliness: in their quest for moral, political and legal probity, they are (again) fomenting division and alienating great swathes of the British public.

Threats of disestablishment aren’t helpful in an already fraught context (not least because those who hurl that particular grenade tend not to understand the colossal social and legal complexity of unpicking hundreds of delicate Church-State threads): far better to show the Archbishops why and where they are wrong, and why it would help if their advisors weren’t all former Labour staffers who voted Remain.

Firstly, the UK’s internal market has functioned seamlessly for centuries: it predates accession to the EEC in 1973. Through the UK Internal Market Bill, the objective is to ensure that businesses can continue to trade across the whole UK as they do now, while putting in place a safety net to ensure the Government is always able to deliver on its commitments to the people of Northern Ireland. Peace and continuing reconciliation are primary: the pursuit of peace and reconciliation isn’t the sole preserve of prelates (or, indeed, of the EU).

Importantly, a parliamentary process has been agreed whereby the House of Commons will have to vote for a motion before ministers can activate the clauses relating to this safety net around Northern Ireland. This cements the principle of parliamentary sovereignty by making plain that it is Parliament that decides whether to activate these clauses, not the Prime Minister or the Government unilaterally.

Parliament, therefore, guards against abuse and determines the course of action, just as the (Arch)Bishops all demanded during the tortuous post-Referendum negotiations presided over by Speaker Bercow.

Also importantly, an amendment is to be tabled which will set clear limits on the scope and timeliness of Judicial Review into the exercise of these powers – meaning litigation cannot go on endlessly to the detriment of communities and businesses uncertain about the outcome.

This is Parliament doing what Parliament is supposed to do; and the Courts doing what the Courts are supposed to do.

What Archbishops are supposed to do is be a focus of unity.

Perhaps when the Archbishops of England, Scotland, Wales and Northern Ireland write jointly, the matter of devolution and devolved powers is unavoidable. But they convey in their letter the impression (or separatist assertion) that the UK Internal Market Bill somehow constitutes a power-grab by Westminster to the detriment of the devolved institutions. We are used to hearing the Church of Scotland singing from the SNP’s hymnsheet, but it is simply wrong to fracture the Union further with this sort of sectarian scaremongering.

In fact the Government is guaranteeing more powers for Scotland, Wales and Northern Ireland: at the end of the transition period, powers in at least 70 policy areas previously exercised at the EU level will flow directly to the devolved administrations in Edinburgh, Cardiff and Belfast for the first time. None of the powers currently held by the devolved administrations will be removed.

Moreover, the UK Internal Market Bill will, from January 2021, provide the the UK Government with new powers to spend taxpayers’ money previously administered by the EU. This means the UK can invest in communities and businesses nationwide with powers covering infrastructure, economic development, culture, sport, and support for educational, training and exchange opportunities. The Archbishops should welcome this, but all they focus on are the political polarities and perils.

When it comes to peace in Northern Ireland, it is important to implement the Northern Ireland Protocol to ensure that the peace process is not inadvertently subverted. The only way to achieve this is for Northern Ireland to remain truly in the UK’s customs territory; for NI businesses to continue to enjoy unfettered access to the rest of the UK; and to ensure that EU law does not hinder or prevent other elements of essential Government business. This all reflects commitments made in the Conservative 2019 General Election Manifesto, and also to the people of Northern Ireland.

The Archbishops might consider that the IRA should not have a veto on the democratic process or the UK’s constitutional interests. As Margaret Thatcher said the day after the IRA had detonated a bomb at Brighton’s Grand Hotel: “..all attempts to destroy democracy by terrorism will fail.” The pursuit of peace is laudable, but not when the price is democracy and liberty.

What is apparent is that the Withdrawal Agreement contained apparently irreconcilable and mutually exclusive clauses which said different things to different people. The Anglican Church above all should be used to living with irreconcilable and mutually exclusive tensions, and not pushing buttons or pulling levers too hard lest the whole edifice come tumbling down. If both signatories to the Agreement were committed to working in a spirit of good faith and shared commitment, the UK Internal Market Bill would not be needed. And if the Archbishops were as passionate and determinedly unified in their public pronouncements on morality, sin, repentance and salvation as they are on this Bill, then perhaps people would understand more of where they are coming from.

One final thought.

The Archbishops ask: “If carefully negotiated terms are not honoured and laws can be ‘legally’ broken, on what foundations does our democracy stand?”

If catholic theological terms are not honoured and God’s laws can be ‘legally’ broken, on what foundations does the Church of England stand?