My Lords, I agree with my noble and learned friend Lord Clarke of Nottingham in so far as he praised the speech of my noble friend Lord Lilley twice for its pragmatism. Beyond that, I find myself in agreement with my noble friends Lord Lilley, Lady Noakes, Lady Couttie, Lady Neville-Rolfe and Lord Shinkwin and the noble Baronesses, Lady Hoey and Lady Fox of Buckley, that this Bill, including Part 5, is indeed necessary.
I salute the Government for their good sense in dealing now with the inconsistencies in the withdrawal agreement. It is regrettable that the inconsistencies were not cleared up at the time of signing that agreement, but it was reasonable to believe that the EU’s negotiators would act in good faith in their efforts to reach an agreement on the future relationship that would have solved most of the inconsistencies. It seems that it remains difficult for Mr Barnier and his team to accept that the UK is becoming a sovereign, independent country and will not accept terms that effectively require us to continue to adhere to EU regulations, especially concerning state aid, nor will it accept the jurisdiction of the European Court of Justice in the determination of any part of our agreement on our future relationship or any connected enforcement proceedings.
I do not share the strong negative reaction of many noble Lords to the Government’s introduction of this Bill, for the reason that it seeks to disapply certain provisions of the withdrawal agreement signed by the UK and the EU in September 2019. I would argue that entering into the withdrawal agreement without first agreeing the framework for our future relationship with the EU was in itself a breach of Article 50 of the Lisbon treaty. Does the Minister agree that it could be argued that the signing of the withdrawal agreement and indeed the subsequent enactment of the European Union (Withdrawal) Act 2018 clearly breaches international law?
The noble Lord, Lord Kerr of Kinlochard, was wise to draft Article 50 as he did. I regret that the European Commission ignored its terms and the previous Government acquiesced in their insistence that agreeing the framework for our future relationship should be deferred. This makes it much more difficult to agree the future relationship, as we are now trying to do with very little time remaining before the end of the implementation period. If we had observed the terms of Article 50, a significant part of the provisions of this Bill, especially those that affect the Northern Ireland protocol, would not have been necessary. Furthermore, David Wolfson QC argues convincingly that the sovereignty of the Crown in Parliament means that the Government are bound to proceed with any Act of Parliament even if it should give rise to a claim under an international treaty. Mr Wolfson argues that there would be
“no breach of the rule of law.”
A similar position has been supported by Jolyon Maugham QC, who has argued that parliamentary sovereignty enables Ministers to advise on and recommend, and Parliament to enact, legislation that breaches international law. He observed:
“Whether it is a ‘good idea’ to breach international law”— by implementing these measures— is a political judgment”.
The noble and learned Lord, Lord Falconer of Thoroton, said that the passage of this Bill in this form risks making the UK “an international pariah”; many noble Lords have expressed a similar view. However, the whole world knows the UK is still negotiating the basis of its exit from the UK. These negotiations continue; in the event that we fail to agree a free trade agreement, it will be well understood that the Government have a duty to ensure that the integrity of the United Kingdom is protected.
I respect the view of noble Lords who think otherwise, including the noble Lord, Lord Ricketts, but I just do not believe that the UK’s well-deserved reputation for honouring its word will be negatively affected in any way, any more than the German constitutional court’s ruling on the bond-buying programme of the ECB—that European law which conflicts with the German constitution may be overridden—affects the reputation of the Federal Republic of Germany as a well-behaved international citizen. The decision of the Court of Appeal in 2018 in response to the challenge by the Gulf Centre for Human Rights that ministerial duties in international law were not truly legal duties offers another example of the same point.
The noble and learned Lord, Lord Judge, and his co-signatories seek to remove all six clauses that constitute Part 5 of the Bill. This would mean that the ambiguities contained in the withdrawal agreement would endure, and the resulting uncertainty arising from the possible erection of a customs border in the Irish Sea would clearly breach the Belfast agreement. The noble and right reverend Lord, Lord Eames, in his eloquent speech proposing Amendment 161, argued that this Bill would upset and alter the basis of trade within the United Kingdom. I admire the great contribution that he has made, and continues to make, to the peace process. I was impressed by his arguments. However, I noted that he did not acknowledge at all that the Northern Ireland protocol itself upsets and alters the basis of trade in the UK.
I agree strongly with the noble and learned Lord, Lord Mackay of Clashfern, that compliance with the Belfast agreement should be regarded as a part of, and a prerequisite to, the withdrawal agreement. I support Amendments 158 and 159, which would create an additional exclusion from the prohibition imposed by Clause 43, but the reasons for checks following a threat to food or feed safety would be well understood. I understand the intention of the noble Lord, Lord Hain, in Amendments 162 and 163; I sympathise with him. However, other clauses of the Bill already prohibit discrimination against goods produced in any part of the United Kingdom, so his amendments are superfluous. I look forward to the Minister’s comments on these and other measures.