United Kingdom Internal Market Bill - Committee (5th Day)

Part of the debate – in the House of Lords at 5:07 pm on 9th November 2020.

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Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers 5:07 pm, 9th November 2020

My Lords, it is only three weeks since an overwhelming majority of this House regretted Part 5 of the Bill. We regretted that the enactment of Part 5 would undermine the rule of law and damage our international reputation. It was a regret shared by members of all parties and none, and all political affiliations and none. Our procedures do not, however, permit us now to record that we are not content that Part 5 should stand part of the Bill. We must address the question clause by clause. I make it clear that at the end of the debate I intend to divide the House, if necessary, on every single clause in Part 5 to record what I hope will be an overwhelming majority view of the House: that we are not content.

Second Reading proceeded largely on the basis of the Government’s concession—maybe their confession—that the provisions in Part 5 breached international law. Clauses 44, 45, and 47, are not the only troublesome clauses. The Committee has not yet heard much criticism, but there is criticism to be directed about Clauses 42 and 43. I adhere to every criticism I made at Second Reading. It is very recent; I do not propose to repeat those criticisms. However, my concern about Part 5 is quite undiminished. Indeed, my criticism has been reinforced by attending the Committee stages of the earlier parts of the Bill, which highlighted the alarming extent of the secondary powers sought by the Government and utterly vindicated the criticisms of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.

However, for the purposes of today, my basic premise is that Part 5 should be seen as a whole, with each and every clause in it interlocking and related to each other. It is a complete, self-contained, cohesive whole: a programme, or a structure, on which Clause 42 is the starting point and foundation, and Clause 47 is the culmination. For a start: just because the clauses in Part 5 work together in the same structure, so they are all contaminated by the contamination of each of them.

However, this part goes further. It proposes that a Minister should be vested with unconditional power to disapply the Northern Ireland protocol. We have heard so much about this that I shall not go through what it amounts to—we all know. For example, the proposal does not require the Minister first to have tried the remedial provisions in the protocol or the withdrawal agreement; nor does it postpone any ministerial action until the negotiations with the European Union have broken down, or until such time as the Government wish to proceed on the basis that the EU has been acting in bad faith. It flies in the face of our binding agreement that we should refrain from any measures that could jeopardise the objectives of the withdrawal agreement.

It is striking that Part 5 stands separate from the rest of the Bill. The Bill addresses numerous fundamental questions relating to the UK internal market. It does so identically for Scotland, Wales, England and Northern Ireland. You cannot draw the slightest distinction between the ways in which the legislation applies to the four nations, save perhaps for Clause 11, which deals with the Northern Ireland protocol and, importantly, how market access throughout the United Kingdom arising from the application of the protocol should work. That, as I emphasised, is how the protocol is to be made to work. Beyond that, every single provision in the Bill applies equally, with all its flaws, to all four nations, and Northern Ireland is rightly included equally with the other nations in the arrangements for a strong, open internal UK market—that is, until we come to Part 5.

There is no Part 5 that applies to Scotland, Wales or England. There is no special protocol for any of them. Part 5 is expressly confined to Northern Ireland—it says so. Why the difference? Why are the other nations not blessed with their own Part 5? I suggest that there is a short answer: because Part 5 has the single purpose of enabling the Government, as and when they wish, to nullify their international obligations—and, what is more, to do so unilaterally, without recourse to the dispute resolution created in the protocol and the agreement. Surely that is why there is no equivalent provision for Scotland, Wales or England. However, whether that is the purpose of Part 5 or not, in law, that will be its result.

I suspect it will be suggested that Clauses 42 and 43—and perhaps Clause 46—require a different approach to Clauses 44, 45 and 47. One obvious distinction between them is that Clauses 42, 43 and 46 do not fall within the Government’s concession that the other clauses break international law. With respect, that approach is flawed. The clauses in Part 5 cannot be cast into self-contained silos. Clauses 44, 45 and 47 are integral to the whole of Part 5 and pollute all the clauses. Beyond that, merely because the Government have made no concessions about Clauses 42 and 43, it does not follow that they are far from reproach.

Clause 42 starts with aspirational objectives but then comes down to define its relevant purposes, which, first, include implementing the Northern Ireland protocol and, secondly, extend to

“otherwise dealing with matters arising out of, or related to” the protocol. “Otherwise dealing” are weasel words; they can certainly be seen to contradict “implementing”. This provides power to dilute the protocol, of course. More important, perhaps, here comes the rub: the purposes, as Clause 42(2)(c) provides, include the movement of goods in a country or territory outside the United Kingdom—that is, not Scotland, Wales, England or Northern Ireland. That is not a provision for the UK internal market. If enacted, that function conflicts with the protocol. I respectfully suggest that Clause 42, at the very least, undermines it.

Clause 43 stands in the Bill with Clause 44; one follows the other under the heading “Unfettered access”. They are linked together. Noble Lords need look no further than Clause 43(3), which provides, first, for compliance with Article 6(1) of the protocol, but, secondly, expressly provides that it does not authorise any function to be exercised

“in relation to any international obligation or arrangement if” it

“has ceased to have effect by virtue of regulations made under this Act”— that is, Clauses 44 and 45, or by virtue of Clause 47. It does not take very much to realise that the pernicious, lamentable provisions in Clauses 44, 45 and 47 have direct application and relevance to Clause 43. Your Lordships all know that it has been admitted that each of them breaks international law. I suggest that this demonstrates the nature of the link.

Clause 46 provides a limitation to the notification provisions of Article 10 of the protocol. It is part of the unacceptable process envisaged in Part 5. It would in any event be an extraordinary provision to leave it standing on its own, as a single clause integral to Part 5, if, as I hope, the remaining clauses of Part 5 are omitted.

If and when it is advanced on behalf of the Minister, or by him, that Clauses 42 and 43 are not offensive and do not fall within the Government’s concessions, I invite your Lordships to reflect that those clauses, with Clause 46, are the foundation for and integral to the whole of Part 5. These are not guardian angels, pure and unsullied, which just happen to be in the wrong place at the wrong time and, by accident, get caught up with bad company. They are there for the same reason as the admittedly offending clauses in Part 5.

I shall not, as I said at the beginning, repeat the arguments I put to your Lordships’ House just three weeks ago, but I ought perhaps to remind us of just one of the obnoxious features of Clause 44: Clause 44(5). It is worth listening to it to remind ourselves. It is a regulation-based provision, the regulations of which may include

“provision for rights, powers, liabilities, obligations, restrictions, remedies and procedures that would otherwise apply, as a result of relevant international or domestic law, not to be recognised, available, enforced, allowed or followed.”

I add just this, and highlight to your Lordships that Clauses 44 and 45 are entirely regulation-based. The effect is to enable Ministers, by regulation, to breach international or domestic law. Can we just pause? We are being asked by the Executive to give a Minister authority to break international law, to subvert the rule of law, to damage our international reputation and to do so by secondary legislation, I regret to say, for the reasons your Lordships have now listened to me patiently expound for some time, with minimal, merely theoretical supervision by Parliament and, moreover, although simply through secondary legislation, effectively removed as far as possible from any examination into their lawfulness by the independent courts.

When will we check the pernicious, subliminal process of allowing the sovereignty of Parliament to be refashioned into the sovereignty of the Executive? In this part, the Executive seek powers that Parliament should never have been asked to give. But as we have been asked to give them, we must not be complicit or supine. The only way available to us to indicate that we are neither complicit nor supine is for us to say “Not content” to each clause in this part of the Bill.