House of Lords
Monday 19 October 2020
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of London.
Introduction: Lord Dodds of Duncairn
The right honourable Nigel Alexander Dodds, OBE, having been created Baron Dodds of Duncairn, of Duncairn in the City of Belfast, was introduced and took the oath, supported by Lord Morrow and Lord Browne of Belmont, and signed an undertaking to abide by the Code of Conduct.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, respecting social distancing, others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to two points? I ask that Ministers’ answers are also brief.
To ask Her Majesty’s Government what assessment they have made of the future of historic statues in England.
My Lords, there are approximately 12,000 outdoor statues in England. In the region of 3,500 are protected as, or as part of, listed buildings; of those, 473 are of historical figures. The future of the vast majority of these historic statues is the responsibility of the owners, usually local authorities. The government policy on historic public statues is quite clear: they should not be removed but retained, with a fuller contextualisation on the background and history of those commemorated provided; this is summarised as “retain and explain”.
My Lords, the wish on the part of some to eradicate our past, in the belief that it is evil, does not justify vandalism. I am dismayed to see re-evaluation, often uninformed, of the contribution of historical figures, most of whom have both good and less good elements. For example, there are strong reasons to take away the prominent position enjoyed by Richard the Lionheart outside our own front door but I am content to walk by him every day, knowing that the study of history places him in context. Likewise, with Cecil Rhodes in my home city, I maintain that he did more good than bad and should not be sacrificed to current concerns, but should be joined by a statue of Mandela. Will the Minister do all she can to stop the destruction of important historical statues?
The noble Baroness gives some very helpful examples. The Government share her concern, particularly at some of the scenes we have seen recently, which have been deeply troubling. It is very unfortunate when figures such as Churchill have to be boarded up to avoid desecration. The Government continue to prioritise this.
Webster’s Dictionary’s definition of putting someone on a pedestal is
“to think of someone as a perfect person with no faults: to admire someone greatly”.
The erection of a statue is not an objective act, but a subjective judgment of an individual’s historical contribution. Does the Minister agree that just as the civic leadership of communities most often decided who should have a statue placed on a pedestal in public places, their modern equivalents, not Ministers, should be trusted to decide whose statues are representative of a community’s current values?
Obviously local authorities are primarily responsible in this area and will take the view of their community into consideration, but my understanding is that for the most contested examples there has been not a uniform community view, but a divided one.
My Lords, I declare my interest as an ambassador of the charitable education and arts project, The World Reimagined. Does the Minister agree that people would be more likely to accept existing statues if we showed greater recognition of the full history of our country? In 1682, William Godwyn proposed a statue in London to prominently acknowledge the injustice suffered by enslaved Africans. Does the Minister not agree that, 350 years on, it is well past time that a national memorial should be constructed in London to commemorate the millions of Africans enslaved under British rule?
The noble Lord is right when he talks about a full history of our country, and we hope our approach of retain and explain goes some way to addressing that, but he is also right that there is a place for new statues expressing many different issues, both permanent and temporary installations, such as the fourth plinth in Trafalgar Square.
My Lords, while I in no way condone criminal damage, I note that our historical statues signally fail to recognise the contribution of women to the scientific and medical advances we enjoy today. In fact, research by the campaigner Caroline Criado-Perez suggests that there are only 158 statues of women. Of those, 110 feature mythical or allegorical women, 46 depict royals and 14 show the Virgin Mary. Does the Minister agree that, rather than myths, princesses or virgins, we should invest in a few statues that commemorate some of our great female innovators and role models, such as Dorothy Hodgkin, Ada Lovelace and Jocelyn Bell Burnell? There are many to choose from and they would be a great addition to our landscape.
My noble friend is absolutely right. There is plenty of room for more women of extraordinary talent and contribution to be represented in that way. Indeed, more broadly, we welcome the recent decision by English Heritage to unveil the portrait of Sara Forbes Bonetta during this Black History Month.
My Lords, assessment of our statues in England is not a culture war, as some would like to say, but rather an honest appraisal about who we put on a pedestal to be revered. While we understand that no one is perfect, and this is not an attempt to rewrite history, rather to better understand it, some statues would be better placed in a museum with their full context explained, rather than showcased in a grandiose way. Therefore, will Her Majesty’s Government create a task force on historical statues that will assess the actions of people honoured and decide what to do with their statues?
I am not aware that there are plans for a task force as the noble Lord suggests, but I am happy to take that back to the department. Obviously, move versus remove versus retain and explain has been carefully considered. Our view is that retain and explain is the best approach. My right honourable friend the Secretary of State will shortly have an online round table to discuss many of these issues with key stakeholders and arm’s-length bodies.
My Lords, we welcome the Government’s suggestion that the policy should be retain and explain. I think that gets across the point very well. Does the Minister agree that resolving this issue might be an opportunity for collaborative work with schools? What would children make of the way our local communities currently view local history through their statues? Will she pursue this with her colleagues?
The noble Lord’s suggestion chimes very well with our approach. It would be enlightening to hear what children think: they normally tell us the truth. I am happy to pick that up with colleagues.
My Lords, is this not exactly an area where national government should resist interfering too strongly? Most of the statues in Bradford are of local people—Samuel Lister, Titus Salt, WE Forster, JB Priestley—and we are having a local discussion about the appropriateness of the statute of Sir Robert Peel, with petition and counterpetition. That is encouraging local debate about our history. Should this not be left to local communities and local authorities? Central government, which already tells local government far too much about what it should do, should leave well alone.
It is perhaps worth separating out the different issues here. The noble Lord is right that many issues, as he has described, relate to and fall within the responsibility of local government. Where central government has been clear in setting out its position is in relation to publicly funded institutions, where we have stressed their need for impartiality.
My Lords, on 17 December 2015, I drew to the attention of this House the brutal legacy of slavery which led to the establishment of Buxton memorial fountain just across from the Chamber. Colonisation across the globe was a trade of human misery, of men and women, families, communities and nations, shredded, bound and pillaged, against any claim of decency and human dignity, rights and justice that we rightly hold today. Will the Minister consider requesting the Lord Speaker and the Speaker in the other place to set up a commission to examine how we honour and celebrate the freedom fighters and leaders of the movement who stood up valiantly against the degradation of colonisation and the inhuman slavery of human people?
The noble Baroness raises important points, but I feel that they are for Parliament to decide rather than the department.
My Lords, I endorse the view that historical understanding is best assisted by the provision of full and unbiased information about those commemorated in statues, rather than by the removal or knocking down of these memorials. As regards Sir Robert Peel, who was mentioned by the noble Lord, Lord Wallace of Saltaire, should we not note that he was a life-long opponent of slavery and the slave trade and sent the British Navy to the coast of west Africa to help suppress it?
I am happy to note that and to note that all of us as human beings are complicated, and our history reflects that complexity.
My Lords, the time for this Question has now elapsed. We now come to the second Oral Question.
Project for the Registration of Children as British Citizens v Home Office
To ask Her Majesty’s Government what estimate they have made of the costs of their decision to appeal the decision of the High Court on 19 December 2019 in Project for the Registration of Children as British Citizens versus Home Office.
My Lords, we do not comment on ongoing litigation. Administrative costs are not recorded against particular legal cases, and as the litigation is ongoing we are not able to provide an accurate assessment of the legal costs at this time.
My Lords, is it not passing strange that the Home Office can calculate the difference between the £640 that it costs to administer the citizenship fee and the £1,012 that it actually charges, even to children in care, but cannot assess the legal costs of contesting the High Court’s judgment? Instead of racking up lawyers’ fees and subsidising the immigration system with what Sajid Javid rightly called huge citizenship fees, should it not be reviewing this policy as noble Lords from right across your Lordships’ Chamber have argued?
My Lords, the Immigration Act 2014 allowed for the review of fees. I can give the noble Lord a general figure, which is that just over £2 billion was generated from visa, immigration and nationality income and passport fees in 2019-20. The cost of BICS, the borders, immigration and citizenship system, was £3.18 billion.
My Lords, the judgment in December 2019 highlighted that the Home Office application fee to register a British citizen was £1,012 for children, even though the Home Office estimated the cost of processing applications for registration as £372. Putting a financial barrier on being able to access one’s rights is a clear barrier to one’s access to justice. What assessment have Her Majesty’s Government made of the number of people whose rights are limited by the level of the fee that has been set?
There are areas for fee waivers, and children in care may well have their citizenship fees paid for them. I reiterate my previous point that just over £2.9 billion is generated in fees, whereas the cost of BICS is over £3 billion.
My Lords, I am delighted that there are some exemptions for children, both those born before 2006 and those born after. Does my noble friend agree that this is not about immigration but about children with the right to register as citizens and potentially denying them their right to register if they cannot fund more than £1,000? I encourage my noble friend, who I know is compassionate about this issue and about children in general, to urge the department to perhaps consider again.
I agree with my noble friend that we do not underestimate the significance of the issue of fees for child citizenship and registration as a British citizen to both Members of the House and to those affected. As I said earlier, we keep those fees under review.
Are those children whose families do not have enough money to pay for British citizenship to which they are entitled liable to be deported when they become 18?
The noble and learned Baroness is so fixated on what I was going to reply that she is stuck to the spot.
I am so sorry.
It is quite all right. Destitution and the inability to pay a fee—I have mentioned children in care—would not be a preventative factor for people gaining leave to remain in this country. Where an applicant can pay the whole immigration fee but none or only part of the immigration health surcharge, the immigration fee will be required and an exemption will be applied to the immigration health surcharge. As the noble and learned Baroness can see, there are a number of areas in which fees can be waived.
My Lords, will the Minister tell the House whether the Home Office carried out a children’s best interest assessment of the Government’s policy on fees in light of the original judgment? If it did not, can she explain to the House why it was not conducted?
The noble Baroness will forgive me if I do not talk about the case in point, because there is ongoing litigation. We will look at the judgment with interest and see what is to be done from there.
My Lords, can the Minister explain why the Government want the immigration system to be self-funding in a way that no other government department is? Controlling immigration is of benefit to all citizens and should therefore be paid for by all citizens.
The whole rationale behind the fee is to pay for the costs of the border, and not everyone goes through the border. I take the noble Lord’s point, of course, that maintaining a strong border is a cost to everyone.
My Lords, can the Minister tell me whether the Government have assessed how many people forgo registering for British citizenship for themselves and their families as they cannot afford it? How this might contribute to their sense of belonging and well-being is important. It is over £1,000 per person, and £4,000 for two adults and two children. What can be done to help with that finance?
As I mentioned earlier, there are waivers for certain groups of people, particularly children in care. I cannot tell my noble friend how many people did not apply or register last year, but I can say how many did. There were 49,000 applications for registration in 2019, and nearly 46,000 of those were granted, of which over 34,000 were for minors.
My Lords, I entirely agree with the comments of the noble Baroness, Lady Altmann. Can the Minister tell the House whether she believes it is right that the immigration system is subsidised by children who are born in Britain and have lived their entire life in Britain and have the right to be British? I think it is wrong, grossly unfair and risks pricing children out of their legitimate rights. There are numerous examples of when the Government have refused to let other bodies recover their costs. I have asked many times here why local bodies cannot recover their planning costs—but the Government constantly refuse to do that.
As I said to my noble friend, and say to the noble Lord now, we do not underestimate the significance of that cost, to either an individual or a family. We keep the fees under review, and, for children and their well-being, there are a number of exceptions to fees for applications for leave to remain.
My Lords, is this not just one other example of the feeling of hostility: that the Government, the Home Office and the immigration system are against us? Not only that, but imagine how full of worry and anxiety somebody facing deportation or tribunal is. This makes us one of the most inhospitable of countries. Is it not time to revise again the British Nationality Act 1981?
My Lords, I refer the noble Lord to when the fees were last agreed. They were set out in Section 68(9) of the Immigration Act 2014, during the coalition Government.
My Lords, could the Minister confirm that the “task and finish” exercise which she promised at Report stage of the immigration Bill will address the barriers to children registering their citizenship, as covered in my amendment, and that the outcome will be reported to your Lordships’ House?
On Report, I promised to meet with noble Lords. I called it “task and finish”, but I am still thinking of the best way to set that up. And yes, I would like to report some of the findings of that discussion to your Lordships’ House.
My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.
Gender Recognition Act 2004
To ask Her Majesty’s Government, further to the Written Ministerial Statement by Baroness Berridge on 22 September (HLWS457), what further advice they intend to give to public bodies following the conclusion of the review of the Gender Recognition Act 2004.
My Lords, the Government recently announced our response to and the results of the consultation on the Gender Recognition Act. We are now focusing on digitising and streamlining the process, and reducing the fee. We hope these changes will make the process less bureaucratic for transgender people. At this stage, we are not proposing further legislative guidance, but we will keep this under review.
My Lords, does the Minister accept that in sensitive discussions about the interaction between the Gender Recognition Act and the Equality Act, those most affected, namely women and transgender people, should have freedom to speak, and that intimidation and no-platforming are not acceptable? Will the Government reiterate their belief in the importance of single-sex places provided by the Equality Act, and make it clear to public bodies that it is not acceptable to insist on gender-neutral services at the expense of providing women-only safe spaces in refuges and rape crisis centres?
My Lords, I agree with the noble Lord that freedom of speech in this area, on all sides, needs to be conducted in a manner that is respectful of people with very differing views. Yes, the Equality Act has an exemption, so that single-sex spaces can be provided and, where justified, somebody can be refused access to that space.
My Lords, I am sure that, today, the Minister will explicitly commit the Government to sticking to the statutory definitions required for collecting data on sex discrimination and will guide ACAS to do so. Since gender identification would not provide reliable data for the statistical analysis needed to understand historical patterns, what advice will the Government give to ensure complete clarity in the data required to comply with the legislation? Given the comparable difficulty in defining gender if it relies solely on self-identity, will the Government commit to advising the NHS on the specific rights of women who do not have male bodies to access single-sex wards and medical facilities?
My Lords, as I have outlined, the NHS, as a public body, knows that it is the Equality Act that outlines its provision of services, and so single-sex wards can be provided. There is specific NHS guidance that, at present, states that transgender people should be accommodated according to their presentation but that decisions need to be made in the best interests of patients. We leave it to front-line clinicians, who are aware of the circumstances on their wards and in their hospitals, to make those decisions.
My Lords, I welcome the statement by the Minister, particularly on freedom of information. Trans women and men have found themselves vilified, deeply misrepresented and defamed, and seen, in total, as a threat, when all they want to do is get on with their lives, harming no one. Great harm has been done to them and their families—and, sadly, by some Members of your Lordships’ House. Therefore, I ask the Minister this: given that many trans people face routine discrimination in public services, what steps will she take to ensure that public services are equipped to support trans people, including through staff training?
My Lords, it is deeply regretful that there has been vilification on both sides of this debate. We hope to move on from this consultation and that both sides can respect the differing views. The consultation made it clear that health service provision was a concern; there is specific training now through the Royal College of Physicians to ensure that medical practitioners are more alert to the issues of transgender people.
My Lords, I thank the Minister for the excellent educational material on sexual education for children in schools, which her department recently published. En passant, I congratulate the noble Baroness, Lady Falkner, on her nomination as the next chair of the Equal Opportunities Commission. This material brings into sharp relief the previous advice that the Government seem to have been given by the Equal Opportunities Commission, which led the Department for Education to publish a decade-long sequence of materials, which vary greatly from the current new guidance. Is the Minister willing to have a meeting with me to discuss the detailed points of issue that I have raised?
My Lords, I, too, congratulate the noble Baroness, Lady Falkner, on her appointment. I would be happy to meet with the noble Baroness. It is key to remember that the relationships and health education guidance that the department has put out was put out partly in response to the IICSA inquiry, which recommended that relationships education was a way to protect children so they would know what was a healthy relationship and when someone was perhaps approaching them for ulterior motives.
My Lords, the Question asked by the noble Lord, Lord Hunt of Kings Heath, and the terms in which it was asked, emanates directly from a campaign supported by, among others, the Heritage Foundation in America, which intends to deny trans women in particular the equality and dignity that they deserve. Can the Minister tell the House whether there is any evidence—as opposed to assertion—that public services are in any doubt about how to ensure the safety of women and trans women in public services under the terms of the Equality Act as it exists now?
My Lords, the data is not collected centrally. A number of providers, including public providers, are making use of the single-sex space exemption. It must not be forgotten that people are electing a gender-specific service—a single-sex toilet, for example—each and every day, and in the overwhelming majority of situations there is not a problem. The Government do not want to interfere with that.
My Lords, I draw attention to my interests as set out in the register. I welcome the Government’s improvements to the healthcare of trans people. In drawing up policy in relation to this sensitive issue, can the Minister ensure that the Government will always be guided by a careful assessment of the evidence, including the global evidence of best practice in this area and a proper regard to the human rights and dignities of every individual, and will always reject any invitation to fight or join in a culture war on this issue from whichever side, such as we have seen far too often in debate over the last few months?
My Lords, I can only agree with my noble friend and thank him that he is to chair the international conference for LGBT, which was in the manifesto. I hope that we can exhibit at that conference a manner of disagreeing respectfully with one another when views differ on each side.
What advice will Her Majesty’s Government give to sports bodies, when national policies differ from those of international federations?
My Lords, the Equality Act made a specific exemption, as I am sure the noble Baroness is aware, so national sporting bodies could set their own criteria for participation in sport. We are not currently aware of any disparity between national and international guidance and governing bodies, but if the noble Baroness knows of specific examples, can she please write to me? I will then endeavour to see whether the UK Government have a role in that.
My Lords, the consultation strongly favoured legislative reform of the Gender Recognition Act 2004, yet the Government have failed to take steps towards a process of gender recognition for trans people that is straightforward, accessible and de-medicalised. What assurance can the Minister give that, in digitising the gender recognition application process, the Government can ensure that the medical component of the process is streamlined and focuses on the legal requirements of the Act, removing the need for intrusive, degrading and unnecessarily detailed medical reports that are so distressing to the trans community?
My Lords, the Government are keen to streamline this process and make it as kind and fair as possible. I hear the comments made by the noble Baroness regarding medical evidence; that is a matter for clinicians. But she is correct that we do not want an overly complex paper system to become an overly complex digital system, so part of this is ensuring that the process is simplified before it is digitised.
Is the Minister aware that some local authorities have withdrawn trans-inclusive guidance to schools because of threats of judicial reviews? Does she agree that the safety and welfare of schoolchildren should never be used as a political football by campaigns, and is she concerned that some such campaigns do just that and do not declare their sources of support and funding?
My Lords, the department has put out comprehensive resources for health education in primary schools and health and sex education at secondary schools, has resourced teachers, and had a commitment in the manifesto in relation to avoiding bullying. We hope that as a result of this consultation, both sides can live in peace with one another and disagree properly without undue recourse to the courts.
My Lords, the time allowed for this Question has elapsed.
Trains: East Midlands
To ask Her Majesty’s Government what plans they have to decrease journey times for trains that use the Nottingham to Lincoln corridor to connect with other cities in the East Midlands.
My Lords, Midlands Connect is working with Network Rail to develop two line-speed improvement proposals between Lincoln and Nottingham, as part of its role in promoting strategic transport investment across the Midlands region. One proposal is to reduce journey times for passenger services between Lincoln and Newark. An investment decision will be made on the proposal following completion of its business case.
I wish to widen the scope of that. I am very pleased to hear of the improvements between Newark and Lincoln, but my Question was concerned with the overall journey times between Lincoln, Nottingham, Derby, Leicester and Birmingham. The average journey by train being at about 30 miles per hour. What further improvements do the Government envisage?
My Lords, the Government envisage a number of further improvements across the wider area that the noble Lord mentions, particularly on the Newark to Nottingham stretch. Midlands Connect and Network Rail are looking at a feasibility study which may see an improvement in times by three minutes. As the noble Lord will know, the issue there is the flat crossing at Newark, where it crosses the east coast main line. More broadly, the Government are doing an awful lot of work in the Midlands as they develop HS2.
My Lords, I thank the Minister for the interesting answers that she gave the noble Lord, Lord Bradshaw. Do the Government intend that the upgrades in timing, which will need infrastructure improvements between Birmingham, Nottingham, Newark and the flat junction for freight, and beyond, will be part of the integrated rail plan recently announced by the Government? They would bring local and regional benefits much sooner than the construction of HS2 East, which apparently has now been paused.
The integrated rail plan announced in February 2020 will look at the delivery of high-speed rail alongside all the other rail enhancements across the Midlands, including the Midlands rail hub. Network Rail is already developing work in this area, including connectivity improvements between Birmingham and Nottingham.
My Lords, I declare my interest as co-chair of the Midlands Engine All-Party Parliamentary Group. Rail is playing a vital role in levelling up the Midlands and capitalising regional developments. A dedicated ministerial champion to drive this key programme forward within government would be hugely beneficial. Is that something that the Government will consider?
The Government take their relationship with Midlands Engine and Midlands Connect extremely seriously, and I have had a number of meetings with them. On transport for the east Midlands, the Transport Secretary, Grant Shapps, announced on 3 September a new collaborative agreement between local leaders in the east Midlands and the department. We have created two new posts within the department specifically for the east Midlands to provide a more influential role when it comes to rail service enhancement decisions.
My Lords, 79% of workers in the East Midlands travel to work by car, and only 1% by rail. Contrast this with London where 27% go by car and 46% by rail and Tube. London shows that that revolution is achievable. Does the Minister accept that to cope with road congestion, pollution, climate change and ill health the Government must prioritise investment now for much-improved commuter train services in the East Midlands? It needs a lot more than a three-minute time improvement; it needs a massive change of approach from the Government.
The Government are committed to making improvements to East Midlands commuter travel. The noble Baroness is absolutely right: if we are to get people out of their cars, we need them on the trains. Of course one of our priorities is improving the safety of staff and passengers on trains. We have extra staff to manage flows, extra signage and extra cleaning. I hope that she will agree that if people want to travel to work in the East Midlands by train, they should do so.
First, what is government spending on transport overall in the East Midlands region per head of population, compared with the national average on transport per head of population? Secondly, what specific progress has been made over the last five months towards reopening the line from Leicester to Burton to passengers, following the government announcement last May of a fund for feasibility studies on the reopening of lines?
The last figures that I have for investment in transport are £268 per head in the East Midlands compared to £474 per head across England, so there is much more to be done. The steps that the Department for Transport has taken recently will aim to level up the East Midlands in the amount of investment in infrastructure. The line between Leicester and Burton—I believe it is known as the Ivanhoe line—is part of the Restoring Your Railway programme, so the reintroduction of passenger services is being considered. Development of these plans has been funded, and the Department for Transport and Network Rail are working on it with the promoters of the scheme to provide the guidance and support that they need to get a strategic outline business case.
My Lords, ensuring better train services is key to achieving the levelling-up agenda across the whole country. It is paramount for jobs and growth that passengers and businesses using train networks have good, reliable and fast services. Also, part of tackling climate change is encouraging greater use of public transport, given that the road networks linking cities in the area are congested and polluted. What assessment have the Government taken on increasing train timetable options for passengers from Lincoln, with a view to ensuring greater usage?
I believe I have been able to explain that between Lincoln and Nottingham an awful lot of work is going on—to improve not only the time taken to travel between those two places but the frequency of the trains. For example, I reassure the noble Lord that, in addition to the measures I have already spoken about, there are plans to see two new services in each direction from May 2021, and then three more services after that each way from 2022.
My Lords, my noble friend Lord Bradshaw pointed out that on the wider regional network the average speed is 30 mph, which is not competitive for freight and businesses, and not good for the environment. The Minister pointed out that there will be a three-minute improvement, but can we come back to speed? In five years’ time, when the arrangements that she mentioned will have been made, what will be the average speed on this line per journey? If she does not have those figures to hand, could she please write to me with them?
The noble Lord will not be surprised to know that I do not have the average speed figures to hand, but one look at that line tells you that there are quite a number of stations, and they bring down the overall average speed. For example, on the Newark to Nottingham section, the new signalling system will allow speeds of up to 90 mph. It is key to get the trains moving much faster between the stations, although I accept that the average speed will be significantly below that.
My Lords, all supplementary questions have been asked.
High Speed Rail (West Midlands-Crewe) Bill
Order of Commitment
That the Bill be recommitted to a Grand Committee.
United Kingdom Internal Market Bill
That the Bill be now read a second time.
My Lords, I beg to move that the Bill be now read a second time. The United Kingdom’s internal market has been the bedrock of our shared prosperity for centuries. Since the Acts of Union, the UK internal market has been the source of unhindered and open trade across the entire United Kingdom. It has enabled businesses and individuals to thrive and has been the source of unhindered and open trade across our country. It has helped to demonstrate that, as a union, our country is greater than the sum of all our parts.
Around 60% of Scottish and Welsh exports are to the rest of the UK, which is around three times as much as exports to the whole of the rest of the European Union. About 50% of Northern Ireland’s sales are to Great Britain. When we leave the transition period at the end of this year, an unprecedented number of powers will flow from the EU to the devolved nations and the UK Government. As this happens, and as we recover from Covid, we must ensure that our economy is stronger than ever. The Bill will guarantee the continued functioning of our internal market to ensure that trade remains unhindered in the UK and businesses can continue to operate with certainty. Without the Bill a Welsh lamb producer, for whom almost 60% of the market is the rest of the UK, could end up unable to sell their lamb as easily as before. Scotch whisky producers could lose access to supply from English barley farmers, unnecessarily putting at risk Scotland’s own whisky industry.
This package guarantees a continuation of our centuries-old position that there should be no economic barriers to trading within the United Kingdom. To achieve this, the Bill will do the following. First, it will introduce a market access commitment for goods, services and professional qualifications respectively. This will ensure that the UK can continue to operate as a coherent internal market and maintain the deep integration and strong economic ties that bind the UK together. Secondly, it provides a statutory underpinning for a new office for the internal market, within the Competition and Markets Authority. This office will independently monitor the health of the UK internal market and provide technical advice on issues that may impact it, reporting to the devolved legislatures and to this Parliament itself.
Thirdly, it introduces provisions to ensure that there is a safety net in domestic law to prevent new checks and controls on goods going from Northern Ireland to Great Britain, in line with the Government’s commitment to unfettered access for qualifying Northern Ireland goods. Fourthly, it enables strategic investment in all four corners of the United Kingdom, giving the UK Government a power to provide financial assistance for the purposes of economic development, culture, sporting activities and infrastructure, as well as both international and domestic educational and training activities and exchanges.
Finally, it reserves to the UK Parliament the exclusive ability to legislate for a UK subsidy control regime once this country ceases to follow EU state aid rules at the end of the transition period. This is to ensure that subsidies do not unduly distort competition within the UK’s internal market. Let there be no doubt: this Bill is crucial in providing certainty to businesses, and we must give them that certainty.
My department and I, along with colleagues across government, spoke to hundreds of businesses and business representative organisations from across the UK to gather views and feedback on our original White Paper proposals. Over 270 businesses and organisations responded to a public consultation on the proposals, and businesses overwhelmingly supported our approach. I record my thanks for the engagement we have had from all aspects of business on this.
The Bill will put in law a market access commitment by enshrining mutual recognition and non-discrimination: mutual recognition to ensure that goods and services from one part of the UK will be recognised across the country, and non-discrimination to guarantee that there is equal opportunity for companies trading in the UK regardless of where in the country that business is based. The same principles of mutual recognition and non-discrimination will also be applied to services and will introduce a process for the recognition of professional qualifications across the whole UK internal market. This will allow professionals such as doctors and nurses, qualified in one of the UK nations, to work in any other part, as I am sure Members would expect. Furthermore, the Government are inviting views on the regulatory framework for professional qualifications, to ensure that our approach remains world leading. We have, of course, listened to those in the devolved Administrations and business, and have made some exemptions, for example to respect the divergence that exists between the legal professions in England, Wales and Scotland.
The Bill will also ensure that Northern Ireland qualifying goods benefit from the market access commitment and receive mutual recognition in the rest of the UK, guaranteeing a continuation of our centuries-old position that there should be no economic barriers to trading within the United Kingdom.
We consulted on how to ensure an independent monitoring and advice function to uphold the UK internal market. In response, and to oversee the functioning of the internal market, the Bill will set up an office for the internal market within the CMA. This office will monitor and report on the internal market to the UK Government, devolved Administrations, the legislatures, and external stakeholders, ensuring the continued smooth operation of that market that businesses so desperately desire.
Subsidy control has never been devolved. It is crucial to continue to have a UK-wide approach, to protect our internal market and prevent harmful and distortive practices arising. The purpose of the Bill is to ensure that we continue to have fair and open competition across the UK, and so it is right that we have a UK-wide approach to subsidy control. As we take back control of this policy from the EU, the UK will have its own domestic subsidy control regime. From 1 January, the Government will follow the World Trade Organization rules for subsidy control, and any related commitments the Government have agreed in free trade agreements.
We will consult on whether to go further than those existing commitments, including whether legislation is necessary to achieve a system that promotes a competitive and dynamic economy throughout the United Kingdom. We appreciate that our longer-term approach will have implications for business and all public authorities that grant subsidies with taxpayers’ money, including the devolved Administrations. So we will take the time to listen closely to those voices and design a system that promotes a competitive and dynamic economy throughout the whole of the United Kingdom. However, we will not return to the 1970s approach of bailing out unsustainable companies, be they in Scotland, England, Wales or Northern Ireland.
As we leave the EU and take back control of our money, we will require new powers to continue to invest across the United Kingdom. Therefore, this Bill will confer a power to make sure that the UK Government can invest UK taxpayers’ money nationwide, including on the UK Government’s priorities, supporting people and businesses across the UK and delivering on our commitment to level up all parts of our country. Currently, unelected EU bodies spend billions of pounds that we provided as a net contributor, on our behalf. They spend our money, with very little say from elected politicians in the UK. This will, rightly, change as we leave the transition period.
The UK Government intend to take a much more collaborative approach in delivering programmes that replace EU funds. This includes engaging heavily with local authorities as well as wider public and private sector organisations. And, of course, it means working closely with the devolved Administrations to make sure that investments complement their existing—and continuing—powers used to support citizens in Scotland, Wales and Northern Ireland. This power to provide financial assistance will cover infrastructure, economic development, culture and sport. It will also support educational and training activities and exchanges both within the UK and internationally, much of which of course was previously done at EU level.
These powers are not designed to take powers from the devolved Administrations, but to add powers to direct investment in a similar fashion to the EU Commission, while reforming programmes and empowering MPs from Wales, Scotland, Northern Ireland and England to design and scrutinise funds in a way that was never possible within the EU. This will also allow the UK Government to meet their commitments to replicating and matching EU structural funds within the shared prosperity fund. This is in line with the Government’s manifesto commitments to strengthen the union and level up the country. This power to provide financial assistance is one of the mechanisms by which the Government hope to achieve these ambitions.
We will also be introducing limited and reasonable steps to provide a safety net to ensure that peace can always be preserved in Northern Ireland. In the event that we do not reach an agreement with the EU on how to implement the Northern Ireland protocol, we must be able to deliver on promises in our manifesto and in the Command Paper. This is a legal safety net which clarifies our position on the Northern Ireland protocol, protecting our union and ensuring that businesses based in Northern Ireland have true “unfettered access” to the rest of the United Kingdom, without paperwork. The Bill will also provide certainty on state aid, ensuring that there is no legal confusion and that, while Northern Ireland will remain subject to the EU’s state aid regime for the duration of the protocol, Great Britain will not be subject to EU rules in this area.
This Bill, and our wider approach to protecting our internal market, is designed for co-operation between the four parts of the United Kingdom. It will protect our common causes, such as the setting of high standards in our economy, and will work in concert with the common frameworks programme and the IGR, which is due to conclude shortly. After all, the UK has some of the highest standards in the world. It is worth reminding noble Lords that we go beyond EU rules in many areas, including health and safety in the workplace, workers’ rights, food, health and animal welfare, consumer protections, household goods, net zero and the environment. We will maintain that commitment to high standards, including as we negotiate trade agreements that will provide jobs and growth in the UK. We have been driving this forward through our common frameworks programme, to drive collaboration and a coherent approach to policy across the UK now that we have left the European Union. I therefore want to reiterate the Government’s invitation to all devolved Administrations to work together on this Bill, with the common frameworks process and with the internal market as a whole.
This Bill is crucial to ensuring that we continue to work together as one United Kingdom to support jobs and livelihoods across our entire country. As we rebuild and recover from Covid-19 and look ahead to opportunities following the end of the transition period, this Bill will provide the certainty that businesses need to invest and create jobs. It will accompany one of the biggest transfers of powers in the history of devolution, with hundreds of powers flowing from the EU to the devolved Administrations at the end of the transition period. This Bill will do all this and preserve the internal market, which has been an engine of growth and prosperity since the Acts of Union. That is why we need this Bill. I beg to move.
Amendment to the Motion
“As an amendment to the motion that the bill be now read a second time, at end to insert “but that this House regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.”
My Lords, I beg to move the amendment in my name on the Order Paper. If I believed in compulsion, and executive compulsion in particular, I would make an order that every member of the Cabinet should read the report from the Constitution Committee and the report from the Delegated Powers and Regulatory Reform Committee and understand what they mean. What I read in those reports we have read time and time again, and, so far, nobody has paid much attention to them. I can sit down now, can I not? Perhaps not.
I do not want to grandstand, but the rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it. When those responsible for making the law—that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make—knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted. There is one consequence, and the damage is to our standing in the world. We have no real power now, except soft power—the English language and an understanding that we in this country have a traditional belief in the rule of law and we respect it. We hope that, one day, all the countries in the world that do not have respect for the rule of law will have it. Yet here we are, about to tear it into tatters. Our contribution to happier days around the world will be diminished.
I want to make it clear that I passionately believe in the sovereignty of Parliament. I extol it, I discuss it abroad, I explain its advantages over a written constitution, which includes the flexibility that we now have. I also accept that Parliament can make any law it likes; it can criminalise anything it wants to. Let me give you a silly example, which is not that far removed from what has been going on through Covid. I happen to support Leicester City FC. Parliament could make it an offence to be a supporter of Leicester City FC. They could make it an offence for 10 Leicester City FC supporters to gather together to support the club. It obviously will not do that, but in theory it can do exactly what it likes.
The rule of law requires properly enacted laws. I accept that; rule by properly enacted laws is one of the ingredients, but it is not definitive. When the sovereignty of Parliament is tossed against us—fair enough, it is important, it is crucial, it is our constitution—let us remember that every country in the world has a law-making body. Think of one that has not. It will produce the laws by which that country is ruled. Of course, it will. But some constitutionally, properly enacted laws are the antithesis of the rule of law. There are so many examples, but here is one that leaps to mind. Apartheid South Africa, where everything about you as a human being and the way you were treated by the law depended on the accident of birth: the colour of your skin. Depending on the colour of your skin, your rights were more or less; they were certainly different. We tend to forget—we should not—that apartheid South Africa’s abhorrent laws were the result of a perfectly clearly understood constitutional enactment. In law, they were utterly justified in making any law they liked, just as we are. But somebody tell me that apartheid South Africa, with its properly enacted laws, was a place where the rule of law could be found. It was miles away, the furthest constellation in the stars you can imagine.
We need to be careful to distinguish between the rule of law and rule by laws. It is the rule of law that carries us and gives us the protection that we need from the abuse or misuse of the constitutional power that is enjoyed by Parliament. It is our safest shield against authoritarianism. It is a phrase that was conjured up by the Commons for the first time in 1610 to tell an overweening king that he was seeking to exercise overmuch power. It is a phrase we should use to remind an overweening Executive that they are going too far.
I know that I am not alone in finding it offensive that we are asked by a Minister in Parliament to seek Parliament’s authorisation to allow him to break the law deliberately and knowingly. Saying that it will be done only in a very specific and limited way is a total obfuscation. A thief who steals only a tin of tuna is still a thief. Over the years, Parliament has heard many strange words, it has heard some very surprising words, it has heard some inspirational words. It is part of the history of our country. But I have not yet found an occasion—I have tried, and if the Minister can find one no doubt he will tell me—when Parliament was invited to agree that a Minister should be entitled to break the law.
We must look on the impact of Part 5 as a totality. It is not just Clause 47 that is pernicious. Let us go back. We became party to a new agreement with the EU, which provided sensible get-out clauses for both sides and which either side could use, and re-enacted the withdrawal Act this year, just before Covid hit us. The Northern Ireland protocol was integral to it, with its own get-out clauses. I recognise, if I may say so, the distaste and hostility with which some people in Northern Ireland regard what happened then. I suggest to them that this debate is not about the protocol; it is about the rule of law.
The Act gave legal effect to the withdrawal agreement and the protocol, and thus it became domestic legislation implementing an international agreement. Of course I accept that international agreements and treaties occupy a separate star in the firmament, but breaking international law is not different, in principle, from breaking domestic law. The rule of law is no less an ingredient of the legal relationship between nations as it is domestically. Let us get ourselves rid of the myth, the spin, that when the rule of law internationally is damaged, the rule of law domestically is nevertheless quite unscathed. It is absurd. The rule of law is indivisible. And let us disabuse ourselves of a further myth or spin that actions already taken have not diminished virtually to extinction the assertion by the Minister in the other place that we are a beacon around the world for the rule of law and international law. The light given by that beacon is being extinguished.
Finally, we must not be beguiled by the recent argument that the legislation would be used only if necessary, in an emergency. It does not cure the fault, does it? What is not a myth is that not a shred of evidence has been produced that would justify the use of the get-out clauses; hence this proposed legislation. Part 5 provides that a Minister of the Crown shall be vested with the power to use secondary legislation in effect to repeal an Act of Parliament that Parliament has only just enacted, almost before the ink on it is dry. That is not how the sovereign Parliament should be treated by the Executive. We do not have executive sovereignty.
But this is worse than the standard Henry VIII clause. To talk about a standard Henry VIII clause is itself a shameful thing to have to do, but we are faced with them in every piece of legislation, like blossom in spring when the wind blows. And, despite the recent arguments by the Lord Chancellor, Part 5 as a whole was obviously intended to prevent any legal challenge to ministerial decree—and the Lord Chancellor himself accepts that such rights will be reduced.
This is not an attempt to limit the court’s jurisdiction over primary legislation: it is now being extended to secondary legislation. The House has heard me speak before on the subject of the inadequacy of parliamentary control of secondary legislation but, if Parliament will not exercise control, and the courts cannot do it, where then are the controls on the Executive? They are vanishing into the air. So now we are being asked to give a Minister of the Crown, on behalf of the Executive, the lawful authority knowingly and deliberately to repeal recent domestic legislation and to break international treaties, all through secondary legislation over which parliamentary control has crumbled through disuse and the normal scrutiny of which by the courts has been reduced to a whimper.
I am nearly done. The rule of law has served us well. It has not made a perfect society—nor could it. But we all know that without it our society would have been, and would still be, catastrophically worse. We must defend that bulwark, and I hope that I shall be supported, because I intend to take this issue to a Division, so that the House can give its own opinion on this dangerous legislation. I say, “Not in my name.”
My Lords, while thanking the Minister for opening the debate, we concur totally with the regret expressed by the noble and learned Lord, Lord Judge. I will, however, leave it to my noble and learned friend, Lord Falconer, to set out our case on this, having allocated some of my speaking time to him, while my noble friend Lord Stevenson will cover the state aid and competition parts of the Bill, as well as the governance, independence and powers of the OIM.
Today will be a notable one for your Lordships’ House, given the expertise that we will hear, and we look forward to the maiden speeches of my noble friend Lady Hayman of Ullock and the noble Lord, Lord Sarfraz, as well as those of my noble friend Lady Andrews, chair of the Common Frameworks Committee, my noble friend Lady Taylor, chair of our Constitution Committee, and the noble Earl, Lord Kinnoull, chair of the EU Committee, whose reports the noble and learned Lord, Lord Judge, has already referred to.
I also look forward to hearing the speech of the most reverend Primate the Archbishop of Canterbury, who, with church leaders from across the four nations, writes in today’s FT of the grave responsibility of Peers, given that the Bill
“will profoundly affect the future of our countries and the relationships between them”.
It is hard to understand how the Government have got so much wrong in a Bill that was long expected as a result of our exit from the EU. Perhaps it is symptomatic of their genetic inability to work with those whose interests are affected by legislation—hence their undermining of the protocol without a word to Irish politicians, and their willingness to break international law, and renounce a treaty, with nary a word to the judiciary or the co-signatories, which led to the EU taking legal action, via a letter of formal notice, for a breach of the good-faith terms of the withdrawal agreement.
Moreover, despite claims that it would strengthen the integrity of the union while upholding the devolution settlements, the Bill actually,
“risks de-stabilising an integral part of the UK’s constitutional significance”,
in the words of our Constitution Committee.
In a letter to the Lord Speaker, Jeremy Miles, the relevant Welsh Minister, describes the Bill as
“an unprecedented attack on the devolution settlement”,
arguing that it would undermine the Senedd’s right to regulate in devolved areas of competence and would explicitly amend the Government of Wales Act. Unsurprisingly, the Senedd’s legislative consent memorandum concludes that, unless the Bill is substantially amended, the Welsh Government would not be able to recommend consent.
A similar reaction led the Scottish Parliament to vote by 90 to 28 against granting legislative consent, with the Scottish Government stating that they could not recommend consent to a Bill that,
“undermines devolution and breaches international law”—
and it looks as if that response has led to a third of Scottish voters being more likely to back independence.
There has been a real issue to resolve, because when we entered the EU in 1973, there was no devolution. But we thought we had achieved a solution with the common frameworks in the Withdrawal Act. Within the EU, common standards, mutual recognition, labelling, testing, professional recognition—or whatever—were decided by consensus across the 28, with MEPs from our four nations signing off the various measures. Our exit repatriated powers to the UK, but they included powers in some devolved competencies.
So how did the Government react? Did they set up a mechanism akin to EU co-determination, designed with the devolved Administrations? Did they build on the common framework efforts already in play? No, they took to themselves significant repatriated powers, annulling elements of the devolved settlement, to replace a system that had evolved slowly and by careful negotiation over decades by government edict. They published their plans with statements from Messrs Gove, Sharma and Jack, from a Scottish businessman and from the Scottish Retail Consortium, but with no word from the Welsh Secretary of State and no involvement of devolved Governments. They sweep state aid to themselves and give a role to the CMA, which is unrepresentative of the devolved nations.
The Bill grants UK Ministers powers on mutual recognition without any input from the devolved Administrations. So if England, for example, imports chlorine-washed chicken, consumers in Aberdeen and Aberystwyth could find it on their supermarket shelves without any say by their elected Governments. Similarly, the Bill’s lack of a public health exclusion from market access principles makes it difficult for all parts of the UK to implement policies to reduce harms from alcohol and tobacco, for example, or to tackle environmental harms.
Meanwhile, this House’s Delegated Powers Committee describes the Bill as a constitutional power grab, apparently horrified by its “extraordinary, unprecedented powers”, which allow Ministers to amend or repeal parts of this Bill—or indeed any Act of Parliament or statutory instrument.
We do not concur with the Government’s assertion that
“the Bill ... is not constitutional but economic”.
Rather, we agree with the Archbishops that
“the effect on devolved policymaking is of constitutional significance”.
The Delegated Powers Committee calls on us to ensure that major decisions are taken by primary, not secondary legislation, noting that much of the Bill’s reliance on statutory instruments has no relation to any need for urgency.
I turn to the CMA. Its present structure is inadequate, not simply by failing to represent all four nations, but by lacking a clear duty to place consumers at the heart of its work. It is notable that nowhere in the Minister’s letter to your Lordships of 1 October does the word “consumer” even appear. You have to get to Clause 32 before you find a welcome mention of
“impacts on prices, the quality of goods and services or choice for consumers”.
Competition is not an end in itself; it is to serve consumers, prevent rip-offs and promote fair trading and growth. Intervention exists to get a market working for consumers, so that objective must be hard-wired into the CMA’s DNA. The noble Lord, Lord Tyrie, as chair, produced an excellent suite of suggestions to make the CMA consumer-focused and fleet of foot. We will seek to write these into the Bill, as well as to reflect all four nations.
In this Bill, the Prime Minister has managed to anger lawyers, devolved authorities, the EU, the churches, his own Back Benches and the majority of your Lordships. He is really like a bar-room brawler, taking on all comers. Is it possible that they are right and he is wrong? Perhaps it is worth reminding Mr Johnson on the oft-quoted words that Barack Obama left in the Oval Office for President Trump:
“We are just temporary occupants of this office. That makes us guardians of those democratic instructions and traditions—like rule of law ... it’s up to us to leave those instruments of our democracy at least as strong as we found them”.
Something is needed to replace the EU’s competition-based open market, such that consumers do not lose out, so that public health, the environment and food standards are protected and that the union is strengthened, but it is not this Bill. This must be amended to be workable, legal, democratic and respectful of the devolution settlements. For that reason, we share the regret expressed in the amendments of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Cormack, that the Bill undermines the rule of law and reneges on a treaty, reducing our standing on the world stage. That is regrettable indeed, and completely avoidable.
My Lords, this Bill is, on a number of grounds, the most dangerous and baffling piece of legislation to come before your Lordships’ House in the 23 years since I became a Member. It is dangerous because, for the first time in that period, a British Government are explicitly legislating to break their word in a treaty recently entered into and in breach of international law. It is baffling because none of its other provisions are necessary at all to meet its ostensible policy goals.
I shall take the dangerous part first—the provisions in Clauses 44, 45 and 47 to allow the Government to override the provisions of the Northern Ireland protocol that could impede unfettered access to Great Britain’s markets for Northern Ireland goods. I pass over the provision in Clause 43(2), which allows a whole raft of new checks, controls and administrative procedures on such trade, which the Government now accept is necessary, and in doing so makes a mockery of the whole concept of unfettered access in the first place. On the offensive provisions themselves, let us be clear on three questions. First, do they indeed break international law? Secondly, in these particular circumstances, is such a breach justified? Thirdly, if not, what should now be done?
On the first question, the answer is clear. The Government have themselves accepted that the provisions
“break international law in a limited and specific way”.—[Official Report, Commons, 8/9/20; col. 509.]
To use a slightly different example from that of the noble and learned Lord, Lord Judge, if I go into a shop and steal a specific and limited number of Rolex watches, I have still committed a theft. Government amendments to the Bill in the Commons would require Parliament to vote before any provisions could be introduced under the offending clauses, but as the Bingham Centre for the Rule of Law puts it, such a vote
“does not alter the fact that Parliament is still being asked by the Government to legislate in deliberate breach of its treaty obligations.”
So, the provisions without doubt break the law, but are they still justified, as the Government contend? They have argued that they are, on a number of grounds. They have produced the lamentable excuse that, because they signed the withdrawal agreement in a rush, they did not realise what it meant. They have resorted to scaremongering, saying that the EU was planning to impose a “blockade”—their word—on agricultural goods moving across the Irish Sea, a suggestion the Irish Foreign Minister has described as “totally bogus”. They have argued that the UK Government have broken international law on numerous occasions in the past to justify doing so again. However, the briefing to your Lordships’ House by the Law Society and the Bar Council knocks that on the head when it states:
“We are unaware of a precedent for such an approach in UK legislation or administrative process.”
The truth is that there is not a shred of justification for breaking international law, as provided for in this Bill. Its effect will simply be to diminish our international reputation as an honest partner and an advocate of the universal application of the rule of law. So, what should your Lordships’ House do? We must ensure that the law-breaking clauses do not enter the statute book. I have considerable sympathy with those who argue that we should vote against the Bill today, at Second Reading, because that is the cleanest way of getting rid of the offending clauses, and because, for reasons I will explain, I do not believe that the remainder of the Bill is necessary at all. However, I understand that this is not the view of others across the House, so we will work with them to excise the specific offending clauses when we get to them. My only plea, though, is that when it comes to ping-pong, the many noble Lords who, over the next few hours, will express their abhorrence of what the Bill contains, will be willing to gird up their loins for the repeated ping-pong which will surely be necessary if our common views are eventually to prevail.
If the Northern Ireland protocol clauses are dangerous, the remainder of the Bill succeeds in being completely unnecessary, while at the same time undermining some of the basic principles of the devolution settlement. Veterans of the EU withdrawal Bill will remember grappling with how to manage the repatriation of measures that underpin the single market: which should be retained at UK level, which should be devolved and which should be jointly determined? With the help of the noble and learned Lord, Lord Mackay of Clashfern, we arrived at a system of common frameworks that would, between them, deal with all aspects of the single market. There are some 40 of them, and they have either been fully negotiated or are in the process of being negotiated. When finalised, they will render the ostensible purpose of the Bill—to ensure the smooth operation of the UK’s internal market—completely unnecessary.
However, the Bill does not simply provide overarching UK-wide market access provisions; it takes away power from the devolved Administrations and reserves it to London at the same time. There are several ways in which it does so. It undermines the devolved institutions’ right to regulate in devolved areas of competence. It gives wholly new powers to UK Ministers to spend public money on devolved issues in Scotland, Wales and Northern Ireland, without necessarily involving them in deciding on priorities. And it seeks to amend the state aid legislation, so that the UK Government could impose a new state aid regime without the agreement of the devolved Administrations. Over the course of the debate, my noble friends and other noble Lords will set out in detail why this legislation is so very damaging to the devolution settlement.
To seek to undermine devolution in these ways, under the innocuous cloak of maintaining market access for goods and services across the UK, is not simply disingenuous; it is dangerous, because it can only give succour to those who want to break up the United Kingdom. Amendments will be laid on a cross-party basis at Committee stage, supported by the Welsh and Scottish Governments, which will seek to reverse the worst aspects of what the Government are proposing in respect of the devolution settlement. I hope they will be supported across the House.
As we face the ravages of Covid-19 and the impending costs and disruptions of Brexit, to have to spend weeks of legislative time, as we now are, trying to stop the Government breaking international law and undermining the devolution settlement is both depressing and infuriating. But if this House of Lords has any purpose, it is to protect the rule of law and the constitution, and it is up to us now to rise to that challenge.
My Lords, I look forward to hearing, here and online, the contributions to come, especially the maiden speeches of the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz.
I also concur totally with the powerful and remarkable speech by the noble and learned Lord, Lord Judge. What we are called to do above all in this country, deeply embedded in our Christian culture and history, is to act justly and honestly. We cannot do so if we openly speak of breaking a treaty under international law, reached properly, on which peace in part of the UK relies. My distinguished former colleague Sentamu, who paid with beatings for his defence of law and justice in Uganda would have spoken trenchantly. I regret his absence.
There are some who claim that I and my colleagues who wrote in the FT this morning are misinformed. But the letter—and this intervention—followed the lead of those who have spent their lives seeking peace in Ireland. Peace is surely something of which religious leaders should speak. We also 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 the former Lord Chief Justice of England and Wales, to name but a few.
This country has different characteristics and needs in its regions and nations. They must be reflected in all our relationships if the union is to survive. There is no watertight door in relationships between economics and constitutional issues. They overflow from one into the other. The timing of anything that the UK Parliament or Government do in Northern Ireland is always especially significant to relationships. It is particularly so at present. The revived Assembly is scarcely a year old; 2021 is the centenary of the establishment of Stormont and the creation of the border. Much progress has been made since the 1990s in building confidence and peace, yet it is clear from many visits in the last few years, and clear to anyone who listens, that the tensions continue. Peace and reconciliation need continual reinforcement and continual progress. I will therefore be seeking to work with others for amendments which ensure that the process of peace and reconciliation is pursued and that powers exercised under this Bill, when it becomes law, involve consultation amidst the immense complexities of Northern Ireland. I hope we may act on a cross-party basis.
Politics, if it is to draw out the best of us, must be more than just the exercise of binaries, of raw majority power unleashed; it exists to seek truth, to bring diverse peoples together in healthy relationships. Our reputation as a nation, our profoundly good and powerful influence and example, which I know from experience around the world, will suffer great harm if law-breaking is pursued—greater harm than this Bill seeks to prevent. In the Church of England, we are all too clearly aware of the shame that comes with failing morally. Let us not make the same mistake at national level. This House exists to amend and improve legislation, not to derail it, and that must be our urgent aim now.
My Lords, it is a great pleasure to follow the most reverend Primate, and I congratulate him and his most reverend colleagues on their very welcome letter today, with which I, too, wholeheartedly agree.
The European Union Committee published our report on the internal market Bill last Friday. It was the 74th Brexit-related report that we have made since the referendum in 2016. It was unanimous, as all the previous reports have been. Once again, I pay tribute to the outstanding committee staff, working all hours as they do, to such a very high standard over such a long period. The report is short. It deals only with Part 5 of the Bill and its interaction with the Government’s implementation of the withdrawal agreement. It was designed to fit together with the excellent report of the Constitution Committee and its wider analysis of the rule of law issues.
I have said before in this Chamber that there is an inherent tension at the heart of the Ireland/Northern Ireland protocol, essentially in marrying up the aspirations of the recitals with the hard legal texts of the articles that follow. The committee reported in June that there was not enough urgency among the parties in the negotiations, who in a pragmatic way need to seek the compromises to sort this out, protecting, first and most importantly, the Belfast/Good Friday agreement and, secondly, the two mighty single markets involved—those of the EU and the UK. That report also dwelt on the multilayered dispute resolution mechanisms contained within the withdrawal agreement. The Bill before us supplants those mechanisms without their ever having been tried out. We have heard already of the Secretary of State’s clear and repeated statement that, in doing so, the Bill breaches international law. The result, as we report, strikes at the heart of the withdrawal agreement and hence poses a threat to the maintenance of the Belfast/Good Friday agreement itself. It is corrosive, too, to the future relationship discussions, as trust has become a casualty of the arrival of Part 5 of the Bill.
We wrote to the Chancellor of the Duchy of Lancaster on 18 September, with nine questions on the situation. To date, we have had no response to that letter and the letter is set out as Appendix 2 of our report. I very much hope that the Minister will carefully cover these nine questions in his response tomorrow. In the absence of convincing answers to these nine questions, the committee recommends removing Part 5 of the Bill.
In closing, I note that the amendment proposed by the noble and learned Lord, Lord Judge, is entirely in keeping with our report. I therefore strongly support it, and for once, and after advice, can follow him into the virtual voting Lobby when he divides the House.
My Lords, it is a pleasure to follow the noble Earl, Lord Kinnoull, and I congratulate him on his committee’s report. Like the noble and learned Lord, Lord Judge, with whose every word I agree, I entirely accept that the sovereign Parliament of the United Kingdom has the power to legislate in breach of international law. That is not the issue that this Bill presents. The question is not whether we can so legislate; the question is whether we should so legislate. I do not often quote the President of the European Commission, but then the President of the European Commission does not often quote Margaret Thatcher. What Mrs Thatcher said was this:
“Britain does not break Treaties. It would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade”.
That says it all.
I was surprised, nay astonished, that my noble friend the Minister did not deal with nor even mention—unless my hearing has totally failed me—that Part 5 is in breach of international law. The admission by the Secretary of State for Northern Ireland in another place that it is in breach was not, as was suggested by one of my noble friends in the recent debate in Grand Committee, merely a “clumsy” form of words: those words were read from a brief; they were prepared; they were premeditated; they were deliberate; they represented the Government’s clear intention, and, as far as I am aware, the Government have not sought to resile from them.
It was suggested that the dispute resolution provisions in the withdrawal agreement would be activated in parallel with the activation of the provisions in the Bill, but I draw your Lordships’ attention to Article 168 of the withdrawal agreement. It is short, so I shall read it in full:
“For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.”
The Government may have second thoughts about that article; they may regret that they have signed up to it, but it is too late: they did sign up to it. They are bound by it and they should honour it.
Together with the majority of those who voted in the 2016 referendum, I voted for Brexit. I do not for one moment regret or resile from that vote; I want the United Kingdom to be an independent sovereign state. However, I want it to be an independent sovereign state that holds its head up high in the world, that keeps its word, that upholds the rule of law and that honours its treaty obligations. I want it to be an independent sovereign state that is a beacon unto the nations. I do not want it to be an independent sovereign state that chooses as one of the first assertions of that sovereignty to break its word, to break the law and to renege on a treaty that it signed barely a year ago. I shall vote for the amendment in the name of the noble and learned Lord, Lord Judge, and, if it is put to a vote, that in the name of my noble friend Lord Cormack. I shall vote against the clauses in Part 5 which are in breach of international law, and I urge your Lordships to do likewise.
It is a real pleasure to follow the noble Lord, Lord Howard of Lympne, and to have heard the speech of the noble and learned Lord, Lord Judge. They were two incredibly powerful speeches, and I agree with every single word of them—except the bit where the noble Lord, Lord Howard, said that he had voted for Brexit, because I did not.
I very much look forward to hearing the maiden speeches of the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz, which I know will be incredibly good. My noble friend Lady Hayter has given me five minutes of her speech, and it has been agreed with usual channels that I may exceed the advisory limit a bit because I am speaking from the Front Bench.
The Northern Ireland protocol ensures an open border in Ireland to preserve the Good Friday agreement. It does this by creating a regime, legally binding on the United Kingdom as a matter both of domestic law and of international law, whereby goods in or entering Northern Ireland will be compliant with single market rules. On that basis, the border remains open and the integrity of the single market is protected. The protocol also provides that Northern Ireland remains within the customs territory of the United Kingdom and there is unfettered access for goods between Great Britain and Northern Ireland. On 8 September this Bill, including Part 5, was published, giving the United Kingdom Government the express power to break the terms of the protocol. The key foundation of an open border—namely, the legally binding commitment freely entered into by the United Kingdom Government—was fundamentally undermined when the UK explicitly stated that it no longer regarded itself as bound by all the protocol. Law is not a protection when those to whom it applies can choose which particular laws to accept.
Closing the border is ultimately the only way to protect the single market’s integrity if the United Kingdom will not accept its legal obligations, destroying our reputation as a country that abides by the law and depriving the European Union of confidence that the border can remain open. Why? The Prime Minister says that the European Union is negotiating in bad faith. He produces no evidence of bad faith. He says that it is to protect the union and to ensure unfettered access for goods between Great Britain and Northern Ireland. The powers being taken in Part 5 give the lie to that defence. It creates a power to break the protocol only in two specific respects, the first being the requirement which the UK signed up to in the protocol that exit declarations be submitted to the UK Government for goods leaving Northern Ireland. I am in favour of reducing unnecessary paperwork, but to suggest that a requirement for a short summary of goods leaving Northern Ireland is breaking up the union is beyond reason. Secondly, the Bill gives the Government the power to break the protocol by giving the United Kingdom power to identify which state aids apply to Northern Irish-Great British trade, in breach of the protocol. This, I was told by Northern Ireland Office officials, is for clarity. I asked for one actual example of where there was a problem; I was not given one. Those are the only areas where the Government can break the terms of the protocol under Part 5.
There is a third issue, not covered by the Bill, arising out of the protocol, which is what goods are to be regarded as at risk of moving from Great Britain to Northern Ireland and then on to the south. It is about trying to avoid some people paying the tariff and then getting a rebate because in fact the goods did not go into the single market. It is an operational issue. I am in favour of as few people as possible paying a tariff when not due and having to get a rebate, but is it the stuff of law-breaking and threatening the union? Absolutely not. The power to break the protocol in respect of the “at risk” issue is not even included in Part 5. There was a reference in a government statement of 17 September to bringing in further law-breaking measures in the Finance Bill. There will be no Finance Bill this year, so that is no longer in play.
There we have it. Our Government have signalled their willingness to break the law and walk away from the legally binding agreement that guaranteed an open border and peace, to reduce some red tape and resolve two issues that half-decent diplomats could resolve in an hour. It makes no rational sense. When they say that they are not walking away, ignore it. Which party will trust their counterparty who says, “I will pick the terms of the legally binding agreement that I am bound by”?
I have no doubt that this comes from No. 10. It is the product of a Prime Minister clueless about detail, so lacking in grip that he cannot or will not see beyond looking tough toward the European Union, who is flailing around trying to deliver on the false promises he made to Northern Ireland businesses that there would be no additional checks between Northern Ireland and Great Britain and to the hard-line Brexiteers that he would do something about the Northern Ireland protocol. He is a Prime Minister with advisers out of control, looking for political stunts to reinforce the insurgent nature of Brexit, happy to sacrifice the rule of law in the hope of a good culture wars row with remainers and some screeching headlines, and oblivious to the consequences to the standing of the UK, its long-term relationship with the EU countries and the security and safety of those who live in Ireland. The defenders of the rule of law in Government have been forced out, or are too desperate to hold on to the offices into which they have been over-promoted to speak out as they should.
I congratulate Keith Stewart QC on his appointment as Advocate-General, and on the peerage which accompanied it. His predecessor, the noble and learned Lord, Lord Keen, resigned on the basis that he could not square his obligation to protect the rule of law with the policy of this Bill. The Bill has got no better since his resignation. This is not about Brexit—that must happen; it is about destroying one of the foundational values of our country. Without a Government committed to obeying the law, everything is at risk. The law is the ultimate protector. We will invite this House, at the appropriate time, to remove Part 5 of the Bill neck and crop. I hope thereafter that this House will do everything it legitimately can to ensure that it does not return.
My Lords, I follow on from the noble and learned Lord, Lord Falconer of Thoroton, by paying tribute to my successor as Advocate-General for Scotland, the noble and learned Lord, Lord Keen of Elie. I have known the noble and learned Lord for over 40 years, and he is undoubtedly one of the best advocates of our generation. When a lawyer of his calibre and experience says that he found it difficult to reconcile what he considered to be his obligations as a law officer with the Prime Minister’s policy intentions with respect to this Bill, noble Lords should sit up and take note. In an age when resignation on a matter of principle seems to have gone out of fashion, surely we must commend the personal and professional integrity shown by the noble and learned Lord.
As someone who has seen devolution work in practice from within both the Scottish and United Kingdom Governments, I express real concern about the potential for this Bill to do untold damage to the delicately crafted architecture of the devolution settlements. I seriously question whether this Bill is necessary. As the White Paper itself acknowledges, the UK internal market is already strong, with overwhelmingly frictionless trade. By contrast, the evidential base for needing legislative requirements for mutual recognition or non-discrimination between the different political units of the UK is wholly underwhelming.
Divergences already exist. More than 30 years before devolution, different building standards were adopted in Scotland, but now the White Paper flags up differential building standards as a threat to the internal market. I certainly believe that the United Kingdom Governments of the 1960s had a better understanding than the authors of this Bill and the White Paper that differences in climate and the built environment between the Home Counties and Orkney merit different standards. Even within the EU regulatory framework, devolution has led to some divergences to reflect local needs and political priorities. That surely is the essence of devolution. Indeed, the United Kingdom Government supported the Scottish Government in the European Court of Justice when the Scottish Government sought to bring in minimum unit alcohol pricing in Scotland. But this Bill does not replicate the limited grounds set out as legitimate aims, which are provided for under Article 36 of the TFEU, where a legislature seeks to diverge from internal market principles. Nor, indeed, is there any reference in this Bill to the principles of subsidiarity and proportionality, which also underpin the current EU framework. As a result, the scope of devolution is restricted, unprecedentedly without the consent of the devolved legislatures. In replying, can the Minister explain why these differences are allowed to arise?
One further compelling reason to put this Bill aside, as referred to by the noble Baroness, Lady Hayter, is its curious silence in its provisions on common frameworks, heralded as a way forward three years ago. In spite of difficulties, efforts to achieve common frameworks have enjoyed buy-in from all the devolved administrations. On 15 September in another place, Cabinet Office Minister Chloe Smith said that the five frameworks would be delivered by the end of this year. In seeking to commend to the House the whole of the 17th report of the Constitution Committee, on which I had the privilege of serving, I particularly refer to our comments on common frameworks, and our conclusion at paragraph 57:
“We consider that adhering to the principles agreed for formulating common frameworks would improve the likelihood of reaching agreement on how to progress the Bill. We are not convinced that opportunities for managing the UK internal market through the common frameworks process have been exhausted. This contributes to our doubts about the necessity for the Bill.”
I do not underestimate the challenges, but surely if there is a way forward which promotes and facilitates co-operation over the conflict and mistrust which this Bill has come to symbolise, it is in the best interests of all parts of our United Kingdom that we vigorously pursue it.
My Lords, I find it difficult to express how strongly I am amazed and deeply dismayed that any British Government of any complexion should produce before Parliament a Bill which contains the provisions of Part 5 of this Bill. I never expected in my parliamentary career, which has not been a short one, to find myself reading a Bill of this kind presented for parliamentary approval. It has already been said, and will be said many times in this debate, that it appears to give the Government unfettered power to break, in any way they find necessary, particular provisions of a treaty upon which the ink is barely dry. I will not attempt—I do not have the time—to compete with the undoubted eloquence of the noble and learned Lord, Lord Judge, and my noble friend Lord Howard, who have expressed the shock which everybody who has any regard for the rule of law in this country undoubtedly feels.
I move on to my more familiar field, though I am a long practiced and experienced lawyer, and shall talk about the politics which underlines this, which I also find quite bizarre and completely inept. The origins of the need for this Bill are quite extraordinary. It all arises from the decision taken shortly after the referendum that Brexit would involve leaving the single market and the customs union. I strongly disagreed with that, and think that we could have left the European Union and remained. I actually moved a Motion in the House of Commons and got within six votes of a majority for staying in the customs union, which, unfortunately, is nearer than the then Prime Minister, Theresa May, got to achieving anything. But that is not the issue today. I accept that we are committed to leaving the single market and the customs union, and I accept the judgment of Parliament and the population, but it does give rise to all the problems that the Government do not know how to solve.
Once you leave the customs union and the single market, you need a customs frontier between your own internal market and the rest. That is wholly in accordance with all the ordinary practices of international trade in modern times, WTO rules and all. Everybody knows that at Dover this could create a very considerable problem, and we are preparing to recruit the people, get the lorry parks, handle the traffic, and get people to prepare for the paperwork that is involved. The problem of course arose in Ireland, which no one seemed to have thought about very clearly, until they realised that to do the same in Ireland would totally undermine that extremely important agreement for the security of the United Kingdom and the Republic, the Anglo-Irish agreement. The solution was determined that Ulster should stay in the customs union and single market, and Great Britain should leave, which means that we have a customs frontier down the Irish Sea.
This was not a sudden or ill-considered thought; it was argued about vigorously. The Democratic Unionist Party, otherwise firm Brexiteers, opposed the whole agreement on that basis but the fact remains that we have committed ourselves to having a frontier. The proper thing to do now is not to go back on our word with no solution—it is quite unclear what the Government really propose by way of essential customs controls that are still compatible with the agreement—but to minimise the necessary delays, as I hope we are doing in the negotiations with the EU. If we insist on changing standards, we should have equivalence of standards and arbitration procedures to settle disputes, and we should make sure that there are as few disruptions to trade, delays to the border and costs as possible. As I said, it is not quite clear what would happen if you just left a hole in the controls between Ireland and GB.
My noble friend has reached his time limit.
I realise that I have only four minutes to talk on this matter. That is one of the bizarre arrangements in this Chamber that I am getting used to. No other parliament in the world would think that people could do justice to the contents of this Bill with people having four minutes to speak in the way that we are doing. However, I have added my voice and will oppose Part 5, in particular, in every way in which my membership of this House permits.
My Lords, what an extraordinary series of speeches so far. The Minister’s speech was itself extraordinary because he ignored the elephant in the Chamber—that is, the elephant which is trampling through Part 5 on the rule of law.
The noble and learned lord, Lord Judge, in his powerful speech, referred to the report of your Lordships’ Constitution Committee. I am a member of that committee. We unanimously concluded that for this Bill to set out to break international law is without precedent. We described Part 5 as “constitutionally dangerous” . We said that the Bill is
“fundamentally at odds with the rule of law.”
We reached those conclusions not just because Ministers want to give themselves this unprecedented power to breach international law—as the noble Lord, Lord Howard, said in his eloquent remarks, this country is looked at by other nations as a beacon of legality and it is therefore extraordinary that Ministers should want such a power—but because Ministers are seeking to immunise the regulations that they make from challenge in the courts on any ground “whatsoever”, the word used in Clause 47(8).
The Constitution Committee is not a group of “lefty lawyers”—the Prime Minister’s term of abuse in his recent speech to the Conservative Party conference. Nobody, I think, has ever described my esteemed colleague, the noble Baroness, Lady Fookes, in that way. There are some lawyers on the Constitution Committee, but most of the members are politicians and political observers from across the House with decades of political experience. The Government should be ashamed to be responsible for producing and pursuing a Bill that attracts such condemnation from such a committee of your Lordships’ House.
Like those unfortunate people who do not feel pain, and who are therefore at grave risk of injuring themselves and those around them, this Government do not feel shame. It is therefore the responsibility of this House to shout out a warning to the Government that Part 5 of the Bill will, if enacted, endanger the rule of law. I am grateful to the noble and learned Lord, Lord Judge, because his amendment gives us the means by which that warning can, tomorrow, be communicated loudly and clearly.
My Lords, I cannot forbear from saying to my noble friend the Whip on the Front Bench that time limits at Second Readings are advisory. I was sorry that she felt it necessary to interrupt my noble and learned friend Lord Clarke of Nottingham.
This is a particularly sad day for me because, like my noble and learned friend Lord Clarke of Nottingham—we entered Parliament on the same day, although he has had a much more illustrious career than me—I never thought that I would see the day when any British Government produced legislation that would take out a significant part of a treaty that was entered into by this Government following a manifesto commitment and commended to, and endorsed by, both Houses of Parliament less than a year ago. For anyone who aspires to be a parliamentarian, this is shameful; there is no other word for it. I am deeply ashamed that a Conservative Government should have embarked on this course. I like to think that it is the result of Barnard Castle but, at the end of the day, the buck stops where the buck stops and it is the Government who have done this.
I have an amendment expressing regret on the Order Paper. It is similar in intent to, although differently phrased from, that of my noble and learned friend—I call him that deliberately—Lord Judge. I do not intend to exhaust your Lordships electronically tomorrow. As long as he presses his amendment—I cannot think that he would ever change his mind on a subject like this—I will certainly not move mine. However, I tabled my amendment because I was so saddened and disturbed. My feelings have been entirely reinforced by the three reports that have been referred to in your Lordships’ House this afternoon: that of the committee chaired by the noble Earl, Lord Kinnoull, and those of our Constitution Committee and the Regulatory Reform Committee. I have never seen three reports so uniformly damning as those. We in this House have a duty to ensure that the Bill does not go on the statute book in anything like the form it is in at the moment.
Part 5 has to be removed. Some people might talk about the Salisbury/Addison convention, but we would be upholding it by taking that course of action. That convention came about when the Labour Party had a tiny number of people in your Lordships’ House and the Conservatives had an overwhelming majority, but it was agreed that any legislation based on a manifesto commitment would not be prevented from having a Second Reading or getting on to the statute book. As I said earlier, this was part of a manifesto commitment, so we would be upholding and not contradicting that convention.
As we sit in this Chamber, we look up and see the barons of Runnymede—of Magna Carta, from which the rule of law developed over 800 years ago. We in this House have a great duty to ensure that the rule of law is maintained. As my noble and learned friend Lord Judge spoke—he made a marvellous speech—I thought of Tom Bingham, whom I was privileged to count as a friend. He wrote the most wonderful little book called The Rule of Law. Every one of your Lordships should buy some copies and distribute them at Christmas time, particularly to Members of the other place.
The Bingham Centre for the Rule of Law has produced a paper, which I think we have all received. It is very well worded and forcefully argued. We cannot allow those chilling words uttered in the other place a few weeks ago—“specific and limited” breaking of the law—to be the final say. How can we lecture China, or exhort our fellow citizens to obey the draconian laws we are currently thrusting upon them if we take this line? We must not and I hope that we will not.
My Lords, it is a great pleasure and honour to make my maiden speech today, and to follow the noble Lord, Lord Cormack. I first thank the staff for their support and hard work. Black Rod and her team, the Clerk of the Parliaments, the doorkeepers, attendants and police officers have been helpful, patient and truly welcoming. I am also indebted to my supporters—my noble friends Lady Jones of Whitchurch and Lady Smith of Basildon—for introducing me to the House, and to my mentor, my noble friend Lady Lister, for her advice and guidance.
I was delighted to be able to take the geographic title of Baroness Hayman of Ullock, a village in west Cumbria, where I live on a smallholding beside the River Marron, with my husband and a collection of animals. It is a beautiful place, nestled between the majestic fells of the Lake District National Park and the mountains of Scotland across the Solway Firth. I am passionate about nature, and we manage the land to enhance the environment and to encourage biodiversity. So I was very proud when I was elected to the other place as Member of Parliament for Workington—Cumbria’s first woman MP—and then given the responsibility of Shadow Secretary of State for Environment, Food and Rural Affairs, a role I carried out for nearly three years. To be able to develop policy not just on environment, food, farming and rural issues but on another of my passions, animal welfare, was a huge privilege—and it really is a privilege to have joined your Lordships’ House.
I am aware of the many differences between here and the other place, so I ask noble Lords to please be patient with me if I fall into old habits. I am looking forward to getting stuck in, and also to getting back to singing with the Parliament choir. It was a great honour to be chair of the choir until last year and I made many friends, a number of whom sit in this House.
Having listened to the speeches today, it is clear that there is a huge amount of knowledge and expertise in your Lordships’ House—although, as a long-standing Leicester City supporter, I was somewhat taken aback by the earlier suggestion from the noble and learned Lord, Lord Judge. But I am pleased to be able to participate.
I have already talked of my passion for the environment, but I am also half-Welsh. My mother’s family farmed in the south Wales valleys. The Minister will need to address the concerns that the Bill risks destabilising devolution arrangements and hampering environmental legislation. I have no problem with the objective of ensuring that the UK internal market can work smoothly after the Brexit transition, but it must protect high environmental standards and encourage improvement, and these matters generally fall under devolved responsibility.
The Government have said that our existing high standards for the environment
“will underpin the functioning of the internal market”.
However, the Bill does not give legislative effect to this commitment; on the contrary, in its current form it could make it harder for the devolved nations to achieve their ambitions. So it is vital that our devolved Administrations can introduce and implement their own environmental laws. I ask the Minister to clarify how the Government intend to ensure that current environmental standards are not weakened, and that the Bill will not prevent or deter any part of the UK from introducing or implementing measures that are designed to protect and enhance the environment and mitigate climate change.
Climate change has not stopped because of the global pandemic, yet it seems to have become the forgotten crisis. We should be increasing our ambitions in the fight against climate change, and for every new piece of legislation we should consider the potential negative impact on the environment. I hope the Minister can reassure me that this will be the case with the Bill we are debating today, and that our environment will continue to be both protected and enhanced.
I have chosen to make my maiden speech today because this issue is of such fundamental importance to our future, and I look forward to fully engaging with the work of your Lordships’ House.
My Lords, it is an inestimable pleasure to congratulate my noble friend Lady Hayman on her maiden speech. We go back a bit of a way. We were both freshers—if that is the right term—in the Cumbria Labour group when it was first elected in May 2013. That is a forum of plain-speaking common sense which I would recommend to some of our national politicians. Together, as we are now in this place, I hope that we will speak up for the north and for Cumbria and its very special concerns—alongside, of course, many other Peers in this place, including my noble friend Lady Hayman’s predecessor-but-one as MP for Workington, my noble friend Lord Campbell-Savours.
My noble friend Lady Hayman—Sue—made a distinctive mark in the Commons. She led the Opposition on environmental and rural affairs, and she thought deeply about the issues. In a Labour Party that was going through a very difficult patch—to put it mildly—she was a voice of quiet calm and reason. It is great—my wife, for one, will be pleased—that she is going to take up again her involvement in the parliamentary choir.
In last December’s general election, so-called Workington Man assumed a mythological status as driving a huge breach in what used to be Labour’s “Red Wall”. I see my noble friend Lady Hayman as a fine and, I believe, more lasting example of Workington Woman, with an instinctive feel for progressive values, a deep concern for the underdog, and a practical passion to secure reform and change. What is more, she is a very decent human being, so I congratulate and welcome her.
I will speed up, I hope, on today’s issue. We are not supposed to be talking about Brexit. People say Brexit is all over. Well, it is, sort of—and of course I accept the result of where we are. But it is because of the Brexit we have chosen, as the noble Lord, Lord Clarke of Nottingham, pointed out, that the Government have got themselves into this very considerable difficulty. Although you can say that the debate about Brexit is over, the consequences of Brexit—not just the economic consequences, which I think are going to be bad; worse than Covid, according to most independent assessments—are going to affect our politics and dominate it, perhaps for years to come.
This Bill is a dramatic blow to Britain's standing in the world. The very act of tabling it has done incalculable damage to our international reputation, and, as the noble and learned Lord, Lord Judge, said, we are now dependent on our soft power for influence. Why has it been done? The proposal for a revised Northern Ireland protocol was put to Brussels by Boris Johnson himself after his walk in the park on Merseyside with Leo Varadkar last autumn. It was the key to having a different withdrawal agreement that he could then get through Parliament. Are we to assume that he never read the provisions of the protocol that he signed or that Michael Gove did not read them on his behalf?
I believe that, by the time we get to Report, these provisions may have been dropped. That is what I very much hope. I think the Government will use the excuse of a skinny trade deal to drop them. However, my fear is that this will not resolve the problem. Trade across the Irish Sea will muddle on for now, but that is only because our rules and standards are presently fully convergent with the EU’s. However, for this Government, the whole point of Brexit is to diverge from EU rules. That will cause great difficulty as time goes on and it has dangerous potential to undermine the Good Friday agreement.
As my noble friend has said, this puts into question the future of the United Kingdom. Furthermore, if I were a Scottish MSP, I would vote to refuse legislative consent to this measure on the grounds that they override the devolution settlement. What we are looking at today is a profoundly dangerous Bill, and this House has constitutional responsibilities to reject the parts of the measure that contradict the manifesto on which the Government were elected and that breach international law. I hope the Lords will neuter it and then stand their ground.
My Lords, I, too, congratulate the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech. As a former Welsh rural Member of another place, I welcome her commitment to the integrity of rural life and rural communities, and I look forward to her many further contributions to your Lordships’ House. She should not be unduly sensitive about the habits of this place. We all get used to being shouted at when we break order by standing up at the wrong moment or in the wrong gangway, but it is never really meant; it is just one of those things.
I suggest that the very fact that so many speakers are expressing their concern about Part 5 of the Bill, combined with their range of expertise and experience, should give Ministers serious pause for thought before this bent-barrelled blunderbuss is fired into the rule of law. This is legislation by offensive weapon rather than logic.
Like many others, I support the amendment to the Motion in the name of my noble and learned friend Lord Judge and moved by him with such clarity. As a former Lord Chief Justice, he speaks with authority, the contradiction of which—on this issue, at least—would amount to brazen and wilful ignorance, in my view. For those who are interested in his support for Leicester City, I remind others who are listening that, at the moment, Leicester City are winning 14:1, as it were. This is a fairly rare experience, and I suspect that it will be a much larger lead by the end of this debate, which is something that Ministers should not overlook.
I urge your Lordships and others outside to beware of thinking that this debate is a lawyers’ wordfest. This is not an issue on which any special knowledge of the law is required at all. Surely, it is a matter of constitutional instinct, international expectation and mutual respect between the United Kingdom and the rest of the world. I remind your Lordships that this Government are the first to resort to the rule of law when it suits them. If you look at the way they have made their submissions in cases concerning foreign terrorism fighters seeking to return to the United Kingdom, however unruly in law those applicants’ other countries of potential citizenship are, they are the first to say, “We rely on the rule of law. We may not like those countries, but they’re entitled to go back there, so there they shall go”. So there is a degree of hypocrisy, on the evidence, in what is happening today.
My parents escaped from the basest of persecutions. After my father, who was a deep-rooted Anglophile, got over my decision not to follow him into the medical profession—a decision about which he expressed deep disappointment, although it was probably to the benefit of my potential patients—taught me politics and history in an international context. He told me of his pride in living in a legal system that would make my qualifications respected throughout the world. I and many others in our current professional lives deal with businesspeople in many countries. One of the beacons that attracts them to making contracts with UK-based entities is their belief that, once a contract and agreement are reached, nothing will be changed in this country arbitrarily, gratuitously or for oblique motives. Some of those dealings are with the British Government.
I am ashamed that the Government are even considering empowering Ministers to derogate from the obligations of the United Kingdom under international law. I am dread-dazed that breaching international law is being contemplated in a way that could undermine the extraordinary achievements of courageous people on all sides in Northern Ireland. I am also appalled by the suggestion that we should be in breach of Article 26 of the Vienna convention, and I hope that the Government will listen to these debates, particularly today’s debate on my noble and learned friend’s amendment to the Motion, and change their mind.
My Lords, I congratulate the noble Baroness on her excellent maiden speech and look forward to hearing both her spoken and her musical words in future. As a non-lawyer, I enter this arena like a Christian facing a pride of angry legal lions. This is made worse by the fact that they have already captured my own archbishop. I am armed only with a simple question: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or its own constitutional law? The only reply I have received so far is: “You shouldn’t have signed the withdrawal treaty”.
That might work in a student debate, but it fails to address my question, so let me answer it myself, not in my own words but in those of the European Court of Justice. In the Kadi case, the court affirmed that, although the EU seeks to comply with its international legal obligations,
“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.
Likewise, the German constitutional court has ruled that if treaties, even EU treaties, conflict with German constitutional law, the latter prevails. Of course, British Governments have disapplied aspects of international law, the most famous example being the United Nations Convention on the Law of the Sea, 15 days after it came into effect, when the future Lord Diplock ruled that
“the Crown has a sovereign right, which the court cannot question”,
to do so. Moreover, in Section 38 of the withdrawal Act, Parliament explicitly foresaw that it might need to set aside the direct application of the withdrawal treaty, as this Bill permits.
However, no one ever suggested when they disapplied parts of the conflicting laws that the European Court of Justice, the German court or previous UK Governments had broken the law—until Brandon Lewis uttered those fatal words. These have been seized on as a weapon by some, and proved a stumbling block for some of my closest friends, but I believe they should be disavowed. This raises the question: are there potential conflicts between obligations under the withdrawal treaty and our fundamental constitutional laws? There are certainly many internal contradictions within the withdrawal Act, but we ratified it because it contains a mechanism—the joint committee—in which both sides are committed to resolve outstanding issues in good faith and respecting each other’s legal order. So, given good faith and mutual respect, there should be no conflict with our legal order, the pillar of which is the Act of Union between Great Britain and Ireland, which pledges that “all prohibitions and bounties”—that is, tariffs—
“on the export of articles … of either country to the other shall cease.”
This is buttressed by the Belfast agreement, which promises no change in that union without the consent of both communities.
However, the EU has been showing little evidence of good faith, insisting on applying the entire EU customs code, which would mean that no goods could move from Northern Ireland to Great Britain without an EU export declaration—something my noble and learned friend Lord Clarke used to say was one of the disadvantages we would face in all our trade once we left the customs union. That is contrary to both the Act of Union and Article 6 of the protocol, which says:
“Nothing in this protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.”
In the other direction, the withdrawal treaty commits both sides to agree before the end of the transition period the definition of goods which are at risk of crossing into the Republic. The EU has implied that, if it declines to agree, the UK will have to levy EU tariffs on all goods going from Great Britain to Northern Ireland. Both these results would conflict with the Act of Union and the Belfast agreement. Happily, because of this Bill, the EU seems to be pulling back from both these positions. I hope that good faith will prevail and we will not need to implement the clauses in this Bill, but it would be irresponsible to leave this country unprepared by rejecting them.
My Lords, I welcome my noble friend Lady Hayman and congratulate her on her speech. I am absolutely sure that she will make many positive contributions to the work of this House, and it is good to see her here today.
There is no way that I can do justice within four minutes to the report of the Constitution Committee, which I have the privilege of chairing; I will restrict myself to remarking on some major points. When we first heard about this Bill, we were sceptical about the need for legislation, and particularly concerned about the impact on relations with the devolved institutions. I will come later to the rule of law issue, which is now receiving greater attention, but I emphasise the impact in terms of the unity of the United Kingdom. The Bill remains a major concern in respect of this.
The committee believes that there is no reason why the principles for the successful operation of the UK internal market cannot be arrived at consensually. There is, after all, broad agreement on the need to avoid erecting new barriers to trade. There are existing mechanisms to achieve this, including, of course, the common framework arrangements, which we are sometimes told are working well; the Government have never explained why these mechanisms are inadequate. Moreover, the devolved Administrations are required by law to adhere to international obligations such as trade treaties. If the Government are committed to the union, an internal market is needed that all parts of the union have bought into.
The committee took a great deal of evidence on the rule of law and has said very clearly that it applies to everyone, from government Ministers to the person in the street. We are all bound by and entitled to the benefit of the law; indeed, it is an essential characteristic of a democratic society and a fundamental principle of our constitution. The rule of law also includes compliance with international law—yet this Bill provides the Government with extraordinary delegated powers, which the Government themselves acknowledge are for the purpose of breaking international law. We believe that taking powers in this way to explicitly break international law is without precedent, and that for the Government to put such powers beyond the reach of judicial oversight is a step fundamentally at odds with the rule of law. For these reasons, I will support the amendment in the name of the noble and learned Lord, Lord Judge.
There are other concerns; that is obvious. There are implications for the Ministerial Code, on which we raise the question of the need for clarification of Ministers’ duties to comply with the rule of law; there is also the question of the scope of delegated powers, as addressed by the DPRRC; and, of course, the European Union Committee has outlined issues in relation to the Northern Ireland protocol, about which the noble Earl, Lord Kinnoull, and my noble and learned friend Lord Falconer have spoken. A cynic might say that the rumpus around this Bill aids the Government by drawing attention away from the basic ambiguity in their original approach.
Finally, I reiterate my view about the lack of necessity for this Bill. There is general agreement that we need a thriving internal market. No one has argued against it and existing arrangements can deliver this. On EU relations, I do not know whether the Bill is part of the Government’s brinksmanship but, even if that were its purpose, it would be no justification for legislation to break the rule of law. I do know that this legislation is damaging to the UK’s international position, and that this can be in no one’s interests at all. I regret that the Government have introduced the Bill. I ask them to rethink their approach and, particularly, to accept amendments to Part 5.
My Lords, I join in congratulating the noble Baroness, Lady Hayman of Ullock, on her maiden speech. Like others, I look forward to hearing her contributions, whether about Cumbria or the environment, which I think the House will anticipate.
I deplore that a government Bill should contain Clause 45(2)(a), which trashes the UK’s reputation for upholding its treaties and honouring its obligations and seriously undermines our ability to negotiate effective agreements. I believe it reveals that the Government are under the stranglehold of anarchists and disrupters. Indeed, I have no doubt that it suits the dark forces in the Government that this part of the Bill has diverted attention from the other deeply damaging proposals that cut across the devolution settlements, to which I now turn.
I was closely involved with the Scottish Constitutional Convention, which laid the basis of the Scotland Act and the subsequent further extension of powers. I am a passionate home ruler but deeply inimical to the break-up of the UK, which I believe will cause fundamental and lasting economic—and, indeed, emotional—division and hardship. In typically British fashion, devolution has evolved differently in each devolved Administration and is not written into a basic law, but it has become accepted and it works. One of the reasons for this has been the overarching umbrella of the European Union, now being removed.
Awareness of the implications of this was raised by the Joint Ministerial Committee on EU Negotiations in October 2017, with a joint communique setting out principles behind the common frameworks to which many noble Lords referred. As a member of the newly established Common Frameworks Scrutiny Committee of this House, I am now aware that this work has been progressing slowly but constructively. A dispute mechanism is envisaged but has not yet been required, and it is the view of the devolved Administrations that this process is both fit for purpose and practical.
As the Constitution Committee stated, it appears that this Bill is anticipating problems that may never arise but seeking powers that prejudice the effective and consensual working of devolution. By contrast, the devolved Administrations can identify how the powers in the Bill would allow the UK Government to block or disrupt the working of devolution. This could affect building regulations, where, as has been pointed out, in Scotland we want higher insulation standards or we might want lower carbon specs. It could affect single-use plastics, where Wales and Scotland want tighter restrictions than England. The mutual recognition and non-discrimination rules could nullify such divergence, which is why the devolved Administrations argue that it could be an England-led race to the bottom.
Clauses 46 and 47 give the UK Government powers to initiate spending in devolved Administration areas without requiring the engagement or consent of the respective Governments. The motivation behind this seems blatantly disruptive. No doubt the people of Scotland, Wales and Northern Ireland may welcome extra cash from the Treasury over and above their own sources of revenue—city deals are an example of that—but for such a measure to be pursued without the participation or consent of the parliaments or Governments is the total negation of devolution. What is more, to be pursuing this only months before crucial elections in Scotland and Wales is a monumental misjudgment by a Government who care nothing for devolution and talk unionism while trampling all over the settlements that are essential to holding it together.
The Bill is not just unnecessary; it is downright provocative. It shows utter contempt for the hard-won measures that are essential to holding the United Kingdom together. Ideally the Bill will not proceed. If it does, it must be with the removal of lawbreaking and with the requirement of consent from the devolved Administrations, which currently seems unlikely to be forthcoming or even sought. What is missing from the Government’s approach is any concern, consideration or comprehension of the delicate balance of devolution. This is well summarised in the report published by the Centre on Constitutional Change. When five archbishops are motivated to put their anxieties into print, it is time for the Government to recognise that this hastily concocted and ill thought-out Bill is not fit for purpose, whatever the purpose is meant to be.
My Lords, I support the Bill because it is an essential element of our preparations to be an independent nation again. Before we joined the EU we did not need special internal market arrangements for trade in goods and services within the UK, but devolution has changed that. We need the Bill to ensure that the different parts of the UK can continue to trade with each other as at present without incurring costs or negotiating regulatory hurdles.
The beating heart of the Bill is about protecting the devolved nations. The Government’s UK Internal Market White Paper of last summer showed that Scotland, Northern Ireland and Wales export more to other parts of the United Kingdom than to outside the UK. There are similar patterns for imports. Keeping the ability to trade within the UK on a barrier-free basis should be at the core of the belief set of each of the devolved nations. I have been surprised that they have not grasped this basic economic fact but have instead been focused on working up grievances about the Bill. The economic imperative is not the same for England, which trades goods and services outside the UK more extensively, but nevertheless, intra-UK trade is important for England too.
The Bill is also strongly pro-business. The plain fact is that most businesses in the UK do not export goods or services outside the UK. Roughly 90% of SMEs trade only within the UK. Keeping that intra-UK trade going without friction is of massive importance for the health of the UK economy and for the devolved nations.
Other sensible provisions in the Bill include ensuring that any subsidy control regime is UK-wide in order to avoid distortions in intra-UK trade. We simply cannot have an efficient and fair UK internal market unless subsidy control is exercised on behalf of the whole of the UK. I also welcome the new role for the Competition and Markets Authority.
I know that most of today’s debate will be taken up with the provisions of Part 5 of the Bill and the power that it creates to modify the European Union (Withdrawal) Act. The Government have been clear that they would use such a power only if it really were necessary to protect the position of Northern Ireland within the UK, that they would use it only as a last resort having exhausted all other routes, and, of course, that they would not put the issue of peace in the island of Ireland at risk. I am also clear that the other place would not let the Government do otherwise.
I hope that it is not necessary to breach international law, but we should remember that such breaches are not without precedent. Sometimes countries, and different Governments in our own country, have concluded that, faced with competing evils, the least harm is done by taking that decision. I hope noble Lords who have concerns about this part of the Bill will see that it has the best interests of the UK at its heart.
Lastly, I regret the highly political intervention today by the most reverend Primate the Archbishop of Canterbury and his fellow Anglican primates. Disestablishment is starting to look rather attractive.
My Lords, I regret that our virtual proceedings mean that one can no longer welcome maiden speeches across the Chamber but has to do so remotely. I do that now, both to the one already made and to those that are coming.
I make no apologies for concentrating my remarks in this Second Reading exclusively on Part 5 of the Bill and its Clauses 44, 45 and 47. Other parts of the Bill certainly require the customary careful scrutiny, and very possibly the amendment, that we normally give to legislation, but this section is unprecedented—indeed, unique—and requires more drastic treatment. Why so? Because never before in Britain’s modern history have a Government brought forward a Bill giving them the authority to unilaterally break international law and override our treaty obligations—in this case, obligations entered into less than a year ago and legitimised by legislation passed by this Parliament following last December’s election. There is no doubt about that, because the Secretary of State for Northern Ireland stood at the Dispatch Box in the other place and told us quite explicitly that it was so.
Does that have implications going far beyond the subject matter covered by this Bill? Indeed it does. This country has prided itself that its word was its deed. In the 20th century, we twice went to war—to world war—in 1914 and 1939, to uphold our treaty obligations, but apparently our word will no longer be our deed if these provisions become law. Moreover, it is the Government’s view—which I happen to share—frequently put forward at our own Dispatch Box, that it is in Britain’s national interest to sustain and strengthen the rules-based international order. That order is currently under severe strain. How much credibility will our advocacy of that order have if we start picking and choosing which bits of it we intend to apply and which ones we intend to ride roughshod over? Very little, I suggest. I can just visualise the justifications that the representatives of Presidents Putin and Xi will put forward next time they wish to break international law and their international obligations; they will be identical to the arguments being used by the Government to defend the measures brought forward to us today.
I insist that this is not a matter of which side of the Brexit argument you are on. That matter was settled last January when this House endorsed the deal that the Prime Minister struck with the EU—the very same deal that we are now being invited to override—and it was settled when we left the EU at the end of January. That is demonstrated by the fact that critics of these measures are drawn from both sides of that Brexit argument. What really is relevant is the risk to the Northern Ireland peace process if the Government persist in the course that they have set out on. The Government’s protests to the contrary ring quite hollow to me. The balance of analyses points to a real, genuine, serious risk to that process.
Those are the reasons why I believe the principled course of action is to remove those parts that I have referred to from the Bill. There is just one word that I can find to describe them: an aberration. That is why I shall vote with the Motion in the name of my noble and learned friend Lord Judge.
My Lords, I add my congratulations to the noble Baroness, Lady Hayman of Ullock, and look forward to her future contributions to this House. I fully endorse the arguments set out by the noble and learned Lord, Lord Judge. I concur with the concerns set out in the report cited by other noble Lords earlier. I even welcome the commitments articulated by the Minister, but I question how they can be trusted, given the underlying ethic of the Bill—and it is absolutely right for archbishops to ask questions of such matters.
Relations with potential partners usually depend on integrity. Trade, security, migration and so on all rest on fundamental trust. Trust cannot be one-sided, or it is not trust at all. Respecting one’s interlocutors is essential. This is inevitably evidenced in language. The Bill before us assumes that our interlocutors cannot be trusted and will behave in bad faith, and that we need to be protected from them. If they do not give us what we demand, we are free to do our own thing, including breaking the law and reneging on agreements made less than a year ago that were said at the time to be “oven ready”—a good arrangement that required “no more negotiations”. What the Bill does not ask is why our word should be trusted by others.
Integrity and morality matter at the level of international relations and agreements—unless, of course, we are now agreeing to reduce all our relations and transactions to some sort of utilitarian pragmatism. Morality also applies to how we remember history and establish what will shape the national mythologies that future generations will inherit. What story will be celebrated or commemorated next year, the centenary of partition on the island of Ireland: one that chose to end violence and respect difference, including different perspectives on identity, justice and unity, or one of a conscious abrogation of agreements built from bloodshed and courageous willingness to stem the wounds of grievance? Ireland, both the Province and the Republic, needs some certainty and shape in the future narrative, but what sort of certainty is built on a broken word, the negation of trust or the arrogance of exceptionalism?
Irish church leaders are surely right to be concerned about what the Bill implies for relations between the devolved institutions and with the UK Government. These leaders are not talking into fresh air; they straddle the border in Ireland and their deep concerns about a breach of the Good Friday agreement need to be listened to, not simply dismissed with a wave of boosterish optimism from Westminster.
Others will speak about the implications of closing an illegal route to challenge the Government’s implementation of the protocol, but let us be clear: parliamentary sovereignty does not translate easily into executive sovereignty. A decision to prefer short-term pragmatism over long-term ethics will lead to a future in which a question mark will hang over any statement by those whose word and adherence to the rule of law cannot be trusted. More is at stake here than economics.
My Lords, I draw attention to my outside interests as set out in the register. In this important debate, it is vital that we do not lose sight of the bigger picture in two important respects. First, our society and our economy have been and continue to be battered this year by the effects of the global pandemic. All the Government’s deeply held fiscal aspirations have necessarily and rightly been jettisoned, as the Chancellor has done everything in his power to protect jobs, economic activity and the National Health Service. Our society and our economy are one and the same thing.
In 2016, the British people voted to leave the European Union and last December the Government won a clear mandate to see that policy through. In so doing, they are inevitably involved in complex negotiations, both with the European Union and, in practice, with individual member states, each with their own particular interests. Defending our economic interests is, and must always be, the paramount concern for Ministers, and that priority has never been more important.
A satisfactory trade deal with the EU was never going to be easy to achieve, with so many competing interests at play. Of course, there must be give and take on all sides. I have stated on many occasions that I believe a constructive and comprehensive post-Brexit trade deal between the UK and the EU is not only the best outcome but an outcome we must all avidly support. I think we all also agree that any repudiation of a treaty, or any action that might be seen as a breach of international public law, must be avoided if at all possible and used only as a last possible recourse in the most extreme situations. I strongly support the tribute paid by the noble and learned Lord, Lord Wallace of Tankerness, to my noble and learned friend Lord Keen of Elie. We certainly miss him in this debate. However, after the damage inflicted by Covid-19, we surely cannot afford to allow anyone, internally or externally, to jeopardise the integrity or efficiency of our internal market in the United Kingdom. That seems to be the actuating principle behind the Bill. Of course, in a Second Reading debate, it is the principle that we are considering.
There is a second point, which is the role of this House. I never cease to be impressed by the exceptionally erudite and public-spirited contributions we hear, week in, week out, from these Benches, especially today with the brilliant maiden speech of the noble Baroness, Lady Hayman of Ullock. None the less, we must not lose sight of where we stand in the delicate constitutional settlement of this land. It is our obligation fairly to consider propositions sent to us by the House of Commons and, where possible, to improve them. On the assumption that that convention is honoured and the Bill progresses, there will be bountiful opportunities to return to the details of this legislation. For now, however, with Her Majesty’s Ministers engaged in highly technical and demanding negotiations, the outcome of which is of the utmost importance to us all, I hope we will find ways of strengthening the hands of those who represent us, rather than seeking to tie them.
My Lords, most contributions so far have related to Part 5 and the Government’s somewhat ham-fisted attempt to unilaterally disavow an undertaking made only a few months ago. I agree with those sentiments. and with the reports of the Constitution Committee and the EU Select Committee and the contributions by their chairs, the noble Baroness, Lady Taylor, and the noble Earl, Lord Kinnoull. I will also support the Motion in the name of the noble and learned Lord, Lord Judge, at the end of the debate.
However, this is quite a big Bill, and I want to talk about something else. Before doing so, I welcome my noble friend Lady Hayman to the Chamber. I commend her speech, including the importance that she stressed of environmental standards, which relate to this Bill as much as they do to much of the legislation we will face over the coming months.
I want to talk about state aid, which is in the Bill but is dealt with rather superficially. It needs to be clearer before the Bill finishes its passage through this House. In a sense, the noble Baroness, Lady Noakes, referred to this in her contribution. She and I were members of an EU Select Committee that produced a report on state aid about two years ago. We rarely agreed on anything fully, but we do agree on the importance of this issue.
At its most acute, the issue of state aid could be epitomised by the issue in Northern Ireland. As a result of the agreement and the way the Government are now pursuing the matter, through the Northern Ireland protocol Northern Ireland is to be part of the customs union and, to a large extent, the single market. So if the Stormont Government gave a subsidy or preferential public procurement arrangement to, say, a Northern Ireland textile company, the main exports of which are to the Republic, and if its Irish competitors objected, would EU state aid rules prevail or would the UK internal market rule prevail? It is clear that we need a UK state aid regime and it is fairly clear how that will relate to our international obligations under the WTO and, I hope, to future bilateral free trade agreements. But it is not at all clear how it will operate in relation to the internal market, which is the focus of the Bill. If that same Northern Irish company’s main export were to Scotland, what then would the arrangements be? If it were to England, would it be different again, because there would be an equivalent objection from England-based competitors?
The fact is that industrial, employment and consumer policy—all of which are relevant to state aid considerations —are differentially devolved between the three Administration and centralised in England but not in the UK. Of course, even in England there is the expected intention to devolve more industrial and employment policy to the English regions, so the question could, at some stage in the future, apply to Greater Manchester, which may have a different industrial and employment support system from that in the West Midlands. How does that play out in the new state aid framework?
The central question is whether there is yet a draft framework for all of this in relation to state aid, at least between the UK Government and the Scottish, Welsh and Northern Irish Governments. If not, what do the Government think it should look like and, above all, how should it be enforced? Is the office for the internal market, due to be established within the CMA, wholly a creature of the UK Government or will the devolved Administrations have a say in its governance and decision-making? During the EU regime, the Commission’s state aid arm had authority over member states, with prohibitions and fines at its disposal. That could be the case for the CMA.
I remind noble Lords of the speaking limit.
Before the passage of the Bill, we need to clarify these issues.
I also add my congratulations to the noble Baroness, Lady Hayman, on her excellent maiden speech. I look forward to hearing her speeches in the future.
What is perhaps remarkable about the speeches we have heard is that the overwhelming majority, on all sides of the House, agree that the Bill is both unnecessary and deeply damaging. As has been pointed out, we have only four minutes, and so I will make three points.
The first is simply to recall, as other noble Lords have, that this is a problem of the Government’s own making. The fact is that the Prime Minister insisted that it was possible to do three incompatible things. As the noble and learned Lord, Lord Clarke, so eloquently explained, the Government insisted that the whole of the United Kingdom could leave both the customs union and the single market while simultaneously avoiding a hard border on the island of Ireland, as well as down the Irish Sea. Their solution was the Northern Ireland protocol. Just 10 months ago, the Prime Minister referred to the withdrawal agreement with the protocol attached as “fantastic” and “historic”. The Northern Ireland protocol, which is far from perfect, is none the less a carefully constructed compromise to try to maintain peace and stability on the island of Ireland and to protect the Good Friday/Belfast agreement.
My second point is that the Bill in reality does little to address the actual problem about which Ministers claim to be concerned. It does nothing about checks on goods crossing from Great Britain to Northern Ireland, only theoretically providing a power to avoid checks in the other direction. If the UK Government are concerned to ensure that everything possible is done within the protocol to facilitate GB-NI trade, they have the legal means at their disposal through the joint committee.
My third and final point is this: the people in Northern Ireland, from all communities, have been let down too often already by this Government. It is just less than a year since the Executive in Stormont were restored. The progress made in the last 20 years is not something that can, or should, ever be taken for granted. Repeated polling makes it very clear that a majority of people in Northern Ireland recognise the need for the protocol, despite its challenges. They do not want the Government to break international law on their behalf. Businesses need economic certainty and the people of Northern Ireland deserve much better than being used as a political football in the Brexit talks. The solution is clearly to negotiate a better, closer deal between the EU and the UK, and then to use agreed mechanisms to protect trade between Great Britain and Northern Ireland. If the Bill is intended to strengthen the mechanisms that hold together the United Kingdom, it is clearly not succeeding. If the Bill is a short-term tactic to strengthen the Government’s negotiating hand, it is hard not to conclude that the loss of trust that it has generated will do long-term harm to our international reputation.
My Lords, comments of genuine legal concern criticising Part 5 must be respected, however disproportionate. However, most of the adverse comments are, frankly, sour grapes from remainers. That Britain would lose its reputation by passing the Bill is nonsense. There are endless examples of EU bad behaviour: the French shepherding illegal immigrants into British waters, or the EU wilfully breaking international law as with Airbus, et cetera, et cetera. The EU ignores the law with complete abandon. To quote the EU Advocate-General,
“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.
There is a very strong argument that Part 5 would not be in breach of international law. There is not time to discuss detail, but the EU’s behaviour means that various articles of the Vienna convention give the UK the freedom to implement Part 5, if required. If anyone is in doubt, let me quote the noble Lord, Lord Pannick—one of this country’s most distinguished advocates:
“If, therefore, the UK and the EU were unable to reach an agreement on Northern Ireland/Ireland, despite good faith negotiations and despite the arbitration procedures, and if the UK were therefore to be faced (against its will) with a permanent backstop arrangement, the UK would be entitled to terminate the withdrawal agreement under Article 62 of the Vienna convention on the Law of Treaties.”
Furthermore, Section 38 of the withdrawal agreement Act, passed by your Lordships, fairly and squarely confirms the supremacy of Parliament. The Bill gives the power to act if Parliament so agrees. The Bill itself does not initiate anything, so whatever view you take, the passing of the Bill is not an illegal act.
The withdrawal agreement was signed in expectation of reaching a reasonable agreement. For the EU to threaten to withhold third-country status or use the Northern Ireland protocol to try and gain advantage in discussions is not acting in good faith. Monsieur Barnier saying that not even a pat of butter may go between England and Northern Ireland demonstrates this attitude. It is an example of the view expounded by Verhofstadt’s team that Great Britain will become the EU’s first colony. It is how Britain has been treated throughout negotiations. Last Thursday it’s the EU Council arrogantly restated that the its opening position was its continuing position. This is not negotiation but dictation.
With no clear argument against Part 5, we must put the interests of our country first and foremost. We must do our best to achieve what the people of Great Britain have consistently voted for and rid ourselves of EU control. Including Part 5 will show the EU that we are not a colony and are not prepared to be treated as one.
My Lords, it is with great pleasure that I join with others in welcoming my noble friend Lady Hayman to this House and congratulate her on her speech. I am sure we will hear many marvellous speeches from her, and it has been good to hear her in this remarkable debate this afternoon.
In respect of Part 5 of the Bill, I would simply say that the recent amendment in the name of the noble and learned Lord, Lord Judge, speaks entirely for me. The changes that are made in this Bill in another place—which simply make Parliament an accomplice in breaking the rule of law—are totally unacceptable.
I want to focus on the risks in the Bill, and particularly on the way it threatens to restrict the existing powers of the devolved Administrations by imposing overriding constraints on the scope of the common frameworks. I declare my interest as chair of the Common Frameworks Scrutiny Committee. For the past three years, and in the context of the incorporation of European law, the four countries of the UK have worked hard to create new consensual common frameworks specifically in order to secure a well-functioning internal market. Of the 40 or so frameworks in progress, some will carry their own legislative competence, but they will all, as appropriate, have their own dispute mechanisms in place. This has been done on a collaborative basis, by agreeing common standards across agriculture, the environment, health and safety—all balanced by respect for the devolved Administrations, in the future as in the past, to diverge in detail, as they see fit.
This managed divergence has led, and will lead in the future, to welcome innovations: not least, for example, for Scotland to introduce minimum alcohol pricing, or Wales a more rigorous approach to single plastics or to refusing GM products—so far, so good. The genius of the process is that co-operation and flexibility have built a stronger foundation of trust between the four nations, just at a time when intergovernmental arrangements have been at their most challenging. Despite the brake on progress caused by the no-deal preparations and now the pandemic, we expect five frameworks to be agreed in the next few months, and more to follow shortly.
This Bill, according to the chairs of both the Constitution Committee and the European Union Committee, threatens to frustrate and disrupt progress made so far and undermine future co-operation, because it does indeed—despite what the Minister has said—provide the Government with powers to alter the competences of the devolved Administrations. Scotland has already withheld consent; Wales and Northern Ireland are deeply provoked. Specifically, the provisions for mutual recognition and non-discrimination would generally require that goods and services that could be legally sold or provided in one part of the UK would have the same legal right to be put on the market in every other part. Forget chlorinated chicken; Wales could not even require different labelling to show the higher levels of fats in a food product. If England were to allow hormones in beef cattle, Scotland could not prevent the import and sale of such cattle. Unlike the European precedent, the only goal is to remove potential barriers to trade at all expense. All other public policy goals are abandoned.
The restraints on devolution set out in these extraordinary and unprecedented delegated powers came as a shock to the devolved Governments. Far from the powers being designed for co-operation, the devolved Governments were not even consulted. They see this as creating new risks, as well as being an attempt to reduce their powers. So my fundamental question to the Minister, once again, is: why is this Bill necessary? What is there to gain from it that cannot be achieved by the common framework principles and process? Why take these risks? It cannot be because the Bill will provide a dispute mechanism, because each framework already has that to resolve differences.
Today the Government received a unique and stern warning from church leaders across the UK not to risk destroying the trust that binds the four countries. I hope that the Minister will not only listen to what the House is saying but will have the wisdom and grace to change the Government’s mind.
My Lords, I support almost everything in this Bill, although I do regret that Part 5 is in there. I regret that the Prime Minister told Members of Parliament last October that the treaty is a great deal for the entire country and
“a great success for Northern Ireland”—[Official Report, Commons, 19/10/19; col. 581.]
and that the protocol is
“an ingenious scheme”.—[Official Report, Commons, 19/10/19; col. 594.]
But now he wants to rip it all up. I regret, therefore, that the Government either did not understand the implications of the treaty and the protocol, or that they did understand its consequences but, privately, always intended to breach the treaty.
The issues that the Government see as a pretext for breaking their word at some future date have existed and been debated at length for the past few years. This is precisely why the treaty contains processes to deal with them. Consequently, I regret that the Government have decided to call into question the treaty before exhausting the dispute resolution process that the treaty contains. Yes, Parliament will be given a vote before these powers can be used—but let us not forget that the Government’s original plan was no Parliamentary vote, which I regret says a lot about the Government’s intent. Furthermore, I regret that it appears that the very introduction and enactment of the Bill are in breach of the UK’s international obligations, even before these clauses are brought into force or used to make regulations. I would ask my noble friend Lord True to confirm whether this is so when he winds up.
More broadly, I regret that we are being told by some that, just because other nations may disregard treaties they have entered into, somehow this justifies us breaching a treaty we have entered into in good faith. Two wrongs do not make a right. The Prime Minister once said that
“the rules-based international order which we uphold in global Britain is an overwhelming benefit for the world as a whole.”—[Official Report, Commons, 13/3/17; col. 89.]
I agree. I just regret that Part 5 is now calling this into question. Above all, I regret that Conservatives who want to support the Government but believe in upholding the rule of law, are being asked to choose between party and principle. What is at stake here is not “leave” or “remain”; it is our approach to public life, how we think about our place in the world, whether we think it still matters that Britain’s word is its bond and, of course, underlying all of that, our belief in the rule of law.
My noble friends Lord Callanan and Lord True are men of integrity. I have known my noble friend Lord True for decades and I will always see him as a good friend, but on this we differ. Principle comes before party and so, with regret, I will be voting for the amendment tabled by the noble and learned Lord, Lord Judge.
My Lords, I, too, congratulate the noble Baroness, Lady Hayman of Ullock, on an outstanding maiden speech. However, there is little time for niceties, because I believe that this is a contemptible Bill, in turn contemptuous of law and contemptuous of Parliament. We must, I suppose, thank the Secretary of State for Northern Ireland for his frankness—it may yet cause him to lose his Cabinet place—in admitting at the outset the illegality inherent in the Bill. The noble Lord, Lord Lilley, suggested that that should now be disavowed. The noble Lord, Lord Callanan, had that opportunity when he opened the debate, but far from disavowing it he chose not to mention in any detail whatever the particular clauses that are the most controversial.
Following the admission of the Secretary of State for Northern Ireland, an amendment was passed in the House of Commons. There are those who argue that that amendment somehow cures illegality, but an illegality, whether authorised by Cabinet or by the Commons, is still an illegality, and it is misleading to claim otherwise. I would go further: it is an abuse of this House to invite us, when we are encouraged at this stage to accept the principles contained in the Bill, to accept the principle of illegality.
Like several noble Lords who have spoken, I have the privilege of holding the commission of Her Majesty as one of her counsel learned in the law. Will those who support the Government please tell me how I can fulfil the obligations and responsibilities of that privilege by endorsing the illegality contained in this Bill? If anyone is still in doubt about the illegality, they should read the analysis of Clauses 42 to 45 produced by the Bingham Centre. They should tell us which parts of that analysis they disagree with. They should go further: they should tell us which conclusions of the Constitution Committee of this House they regard as not being well founded. Generally, they should tell us how we can discharge the obligations and responsibilities of membership of this House by endorsing illegality at the whim of a Government.
We regularly recognise the legacy of John Major and Tony Blair in the production and continued observance of the Good Friday agreement. No one in government, however, paused to reflect on the importance of the Good Friday agreement in the domestic politics of the United States. Noble Lords had better believe the words of Speaker Pelosi: there will be no trade deal for Britain with the USA if there is any adverse impact on that agreement. The fact is that whether or not in the end the Government exercise the power to commit the illegality, the damage is done: our reputation is besmirched and the credibility of the United Kingdom undermined. This is shabby business and we should have none of it.
My Lords, I congratulate the noble Baroness on her maiden speech and I look forward to many more on a variety of subjects.
This Bill illustrates how our constitution has been evolving in such a haphazard way over the last two decades, with ill-thought-through lurches into various forms of devolution without a comprehensive plan to co-ordinate them. We have succeeded in falling out with the devolved Administrations and have the consent of none.
I wish to speak to Clauses 44, 45 and 47, but the reason why they exist at all has its roots back in decisions taken one year ago. On 2 October 2019, Her Majesty’s Government produced a proposal for an amended protocol on Northern Ireland entitled Explanatory Note. This note said that the protocol was based first and foremost on our commitment to finding solutions compatible with the Belfast/Good Friday agreement, but if that was the commitment it has not been met.
The Explanatory Note did the following: it proposed to establish a regulatory border in the Irish Sea requiring checks on goods and produce moving between Great Britain and Northern Ireland; it required the establishment of border inspection posts as required by EU law, and traders moving goods from Great Britain to Northern Ireland to notify the authorities in advance. Her Majesty’s Government proposed the establishment of a regulatory border in the Irish Sea with border control posts and the ongoing involvement of the EU courts in Northern Ireland. How on earth is this compatible with unionism?
For some inexplicable reason, the Explanatory Note of 2 October was endorsed by the Democratic Unionist Party. Arlene Foster issued a statement describing it as
“a serious and sensible way forward.”
This opened the floodgates for Brussels and Dublin, and two weeks later the deal was done. How any unionists can support any kind of border in the Irish Sea escapes me. The establishment of this border and the arrangements contained in the subsequent withdrawal agreement are a clear breach of the Belfast agreement. These proposals change the status of Northern Ireland and have the same negative effect as having a land border, which everybody has sought to avoid. Her Majesty’s Government now see Clauses 44, 45 and 47 as essential to keeping some semblance of cohesion in the United Kingdom, illustrating the shoddy nature of the negotiations conducted last year. I have little doubt that some EU negotiator did threaten to prevent food coming from Great Britain to Northern Ireland. That individual must have very little knowledge of Irish history.
Nevertheless, to plunge ourselves into a legal quagmire and various constitutional contortions is not the answer. There is another way: instead of blathering on about the Belfast agreement, which has been used as a political football by Brussels, we should use it as part of the answer. It never ceases to amaze me that those of us who negotiated the agreement are never consulted about its intentions or how some legislative proposals might affect it, even though there are many of us in your Lordships’ House.
The UK could legislate to prevent our territory being used for the export of non-compliant products into the EU market. We could also indemnify the EU if non-compliant products succeeded in getting through. We could, by treaty, establish another cross-border body for educating businesses and preventing any single market contamination, and join the EU to that treaty if some additional devolution to Stormont was initiated.
How are we in such a mess because of trade flows across the land border that accounts for 1.6% of Ireland’s total imports, or, to put in another way, 0.1% of EU trade flows? If we can break a protocol that we ourselves proposed a year ago, even though I continue to oppose it, all bets are off with regard to Scotland, Gibraltar and the Belfast agreement itself. Precedent, dear boy, precedent.
My Lords, I was elected to Parliament some 47 years ago and have witnessed nine Prime Ministers tread the steps of No. 10 Downing Street. However, never in my parliamentary experience have I witnessed such a collapse of the people’s trust in a Government who promised so much and so quickly and who are now groping for desperate solutions to problems that they said would not arise or, if they did, could easily be resolved.
It has been a privilege to listen to such fine speeches this afternoon. Perhaps I thought they were fine because I agreed with most of them. However, let us not beat about the Euro-bush: the Prime Minister set the course that we are on and shows no remorse for steering us off it. The claim continues to be made that a no-deal end to our membership of the European Union is nothing to worry about and that we have every right to break a clause in an international agreement because we do not trust our European partners, but it was our European partners who joined us in signing that very agreement.
Future historians will not need a test-and-trace operation to find those responsible if we end up in a legal battle in the Supreme Court and an economic crisis that rivals the 1930s depression. I was a young girl in the 1930s and I saw the poverty and misery it caused at close quarters, so of course I was alarmed when I read that the noble Lord, Lord Agnew, a Cabinet Office and Treasury Minister, was reported to have said that British businesses and commerce were not as ready as they should be for the start of our new terms of trade with Europe in January. What terms of trade is he talking about? Those whom I know who are working in business and commerce would certainly love to know.
I ask the Government: can we break future terms, as easily as we appear intent on breaking the Northern Ireland protocol, if we do not like the way they work after January? The low regard shown by the noble Lord, Lord Agnew, for British industry and commerce went even further. He was reported to have said that our traders have their heads in the sand as they approach January’s deadline. I am sorry that he did not heed Denis Healey’s advice:
“When you’re in a hole, stop digging.”
The blame game has evidently begun, and the PM started it. He dictates a strategy and blames others if it does not work.
No sooner had the Prime Minister finished his sunshine forecast on Friday, of the prosperity he claims will surely follow there being no trade agreement with the EU, than a New York analyst made a withering comment that took my breath away. Our credit rating had just fallen dramatically but he did not write us off. He did not spare us either. He said:
“the quality of the UK’s legislative and executive institutions has diminished in recent years.”
Who can deny it? The Prime Minister’s claim that we shall survive no deal because we have
“high hearts and complete confidence”
in the future will be exposed as what it is: a sham.
The latest line from Downing Street is that we shall insist on legal texts in future negotiations. If the Government had paid close attention to Article 10 of the Northern Ireland protocol before signing it, they would not need to override it in this Bill. Trust in this Government, both nationally and internationally, is in short supply but our parliamentary democracy has deep roots and I trust that this House will defend our laws and traditions. Who knows? There is still time for yet another U-turn. One thing I am certain of, we shall not deserve our reputation and regain our self-respect until once again the world knows that our word is our deed and that we are committed to the rule of law.
My Lords, as president of the Steam Boat Association I know a bit about boilers. They are potential bombs and have the capacity to blow a vessel to smithereens. By law, they must be tested annually and have two safety valves to release steam if the pressure exceeds a safe level. The second valve is there to deal with the unlikely failure of the first. In the words of the noble and learned Lord, Lord Judge, it does not cure the fault but it prevents the destruction of the ship. This Bill provides for that second safety valve in the event that the EU does not respect the disputes procedures under the withdrawal agreement, does not comply with its duties of sincere co-operation and threatens the very integrity of our United Kingdom.
After all, the withdrawal agreement was signed on the basis that a trade deal would be implemented in 2020. The Canada-style free trade deal was offered by Mr Barnier but now we are told is no longer available. It is easy to make a case now that the EU is negotiating in bad faith, a point made by my noble friends Lord Howard and Lord Lilley. I have some experience of this kind of duplicity on the part of the EU, which I share with the noble Lord, Lord Kerr. I go back to John Major’s opt-out from the social chapter. We thought that that meant that employment policies were subject to a veto by us but, hey-ho, the EU decided that working time was a health and safety measure and therefore subject to qualified majority. As I recall, the advice from the noble Lord, Lord Kerr, and others at the time was that there was no point in us going to the court to argue on a point of law because the European court would always advance the acquis and was a political court. Let us not be starry-eyed about how the European Union acts in the interests of the rule of law.
I very much regret that my noble and learned friend Lord Keen is no longer on the Front Bench and that he was forced to resign even though he launched a lifeboat for the Government. He suggested that the Northern Ireland Secretary had answered the wrong question in the Commons when asked if the Bill breached or potentially breached the law. He was making the point that “potentially” was the right answer. As Advocate-General he told the House,
“in my opinion, the present Bill does not of itself constitute a breach of international law or of the rule of law.”—[Official Report, 15/9/20; col. 1129.]
That is good enough for me to support this Bill being given a Second Reading. It is for the Committee stage to consider this further, and I ask my noble friend Lord True to make it crystal clear in his wind-up tomorrow that these provisions in Part 5 would be used only in extreme circumstances and be subject to parliamentary approval.
I have enormous respect for the noble and learned Lord, Lord Judge, although comparing this to the abuses of apartheid seemed a little over the top. My noble friend Lord Cormack is assiduous in his work in this House but I cannot vote for the amendment, which is nothing more than parliamentary graffiti. The Bill was passed by a huge majority in the House of Commons and, despite the amendment before us and more than 100 speeches, it will be given a Second Reading in the House tomorrow. Only the Liberals with their miserable mandate at the general election have contemplated throwing the Bill out. Rightly so, for this Bill protects, enhances and strengthens the union. More than half a million jobs in Scotland depend on the integrity of the internal market, and scores of powers are being returned from a supranational bureaucracy to our elected representatives. The very Act of Union itself was about creating a barrier-free internal market and it has brought about more than 300 years of prosperity.
I cannot tell the House how disappointed I was to see the most reverend Primate the Archbishop of Canterbury putting his name, together with other senior Anglican bishops, to a letter in today’s FT headlined “Internal market bill undermines the strength of our union”. Those who wish to break up Britain will be much encouraged by their efforts.
My Lords, I too welcome my noble friend Lady Hayman and congratulate her on her maiden speech. I serve on your Lordships’ Delegated Powers and Regulatory Reform Committee. This committee was formed in 1992 to deal with the growing tendency of Governments to seek wide order-making powers which give Ministers unlimited discretion. The Bill is a prime example of why that committee is needed. We draw your Lordships’ attention to 11 delegated powers in the Bill, which include seven Henry VIII powers, to which the noble and learned Lord, Lord Judge, referred. These powers allow Ministers to amend, repeal or modify an Act of Parliament or a statutory instrument. Under Clauses 42, 43 and 45, Ministers are able to disregard any international or domestic law which they consider to be incompatible or inconsistent with the Northern Ireland protocol. That is why in paragraph 2 of our report we say that
“Some of these powers are extraordinary; others are unprecedented.”
As the Minister explained, the stated purpose of the Bill is to allow free trade within the United Kingdom. Clause 3 states that any item permitted to be sold in one part of the United Kingdom under devolved legislation is automatically available for sale in other devolved areas on the principle of mutual recognition of goods. This means that the lowest standard becomes acceptable. What is more, this requirement applies not only to the goods themselves but to their packaging, labelling, assessment, registration and documentation, as my noble friend Lady Andrews explained. This is despite government assurances that our standards will not fall when we leave the EU. Standards become a race to the bottom, as the noble Lord, Lord Bruce, explained.
The committee’s view is that Clause 3 should be deleted. I understand that amendments will be brought forward to do this. There are further clauses in the Bill which override powers granted to the devolved Administrations regarding such things as consumer protection, financial aid and social welfare; indeed, powers are granted to UK Ministers to spend money over the heads of devolved Administrations, even on devolved matters.
Clauses 42 and 43 allow Ministers to disregard provisions of international or domestic law for technical reasons; this is one of the unprecedented powers to which our report refers. When your Lordships reported in September, the Bill was in the other place, and, as we say in our note dated 13 October, the Government did not take the opportunity to address the points which we raised. It seems to me that this disregard for the arguments of your Lordships’ committee is yet another example of this Government seeking to impose their will rather than seeking parliamentary approval. In doing so, they ignore the public interest in matters of law, diplomacy and the nation’s integrity. This undermines the integrity of public life and allows Ministers to break the Ministerial Code. The only justification seems to be that Ministers need these powers to act quickly, especially in an emergency. Well, Parliament can act quickly and in an emergency. Speed is no reason for imposing the will of Ministers on the devolved Administrations in this divisive manner.
My Lords, it has been a great privilege to listen to the speeches of noble Lords today, especially those who have voiced the concerns of so many of us about this Bill and the impact its invitation to collude in the breaching of international law has already had on the UK’s standing on the international stage.
Politicians in Wales are equally deeply concerned by the contents of this Bill and the implications it has for Welsh devolution, and none more so than David Melding, the highly respected and long-serving Conservative Senedd Member, who resigned his position as shadow Counsel General last month. He cited the need to be able to speak out against what he considers to be,
“a lack of statecraft at this crucial time for the UK’s very survival as a multi-national state.”
Those three words, “lack of statecraft”, are the most telling; a stinging criticism from one of the Senedd’s most loyal Conservatives, and three words that sum up what is so wrong with this Bill. Statecraft involves diplomacy, co-operation, consultation and consensus, but these are words no longer associated with the delivery of the UK’s internal market, and despite the Minister’s conciliatory words and tone when introducing this debate, the words on the face of this Bill tell another story.
It is clear that the UK Government’s response to dealing with devolved governance issues that arise will be to resort to government by diktat. For example, the principles of mutual recognition and non-discrimination are, according to this Bill, to be applied to all goods and most services, with a highly limited list of exceptions which can be changed by UK Ministers through secondary legislation without consultation with the devolved Administrations. In Wales, this is seen as a fundamental assault on devolution, preventing the Senedd carrying out its duty of protecting the citizens of Wales from substandard goods and services.
The proposal that UK Ministers should take new funding powers to enable them to fund hospitals and schools in Wales without consultation with the Welsh Ministers who have the devolved responsibility for these areas is provocative, as is the threat to build the M4 relief road against the decision of the Welsh Government, a decision endorsed by the Senedd on cost and environmental grounds. This attempt to chip away at the powers of the Senedd is an example of Westminster colonialism at its worst. I understand the Government’s dislike of the EU flags seen on Objective 1 projects in west Wales and the valleys, and their need to see the union flag on new projects, but far better to make an investment in areas which are not devolved and for which the UK Government have actually been responsible for years and neglected.
As many noble Lords have already said, the irony is that this Bill is mostly unnecessary. Continued work on common frameworks with the devolved Administrations would ameliorate its impact. The work already carried out by the devolved Administrations, your Lordships’ committee and the UK Government until now has been an example of statecraft at its best. Most worryingly, the imposition of decision-making by Whitehall in areas of devolved responsibility will do nothing to aid the UK’s survival as a multinational state.
My Lords, I want to concentrate on Part 5 and the amendment in the name of the noble and learned Lord, Lord Judge. I have already publicly criticised the statement by Brandon Lewis that the Bill breaches international law. Since the Government have not withdrawn that statement, I have no choice but to vote for this amendment. However, I confess that I am in a dilemma. What the Government are doing certainly is wrong, but on the other hand, the provisions of the Northern Ireland protocol are potentially disastrous. It is a choice of two evils. How can we break international law, and, on the other hand, how could we ever accept tariffs being levied on goods going from one part of our country to another—a border in the Irish Sea? That is not the trivial matter that the noble and learned Lord, Lord Falconer, suggested; it is a threat to the Good Friday agreement. I am also sensitive to the danger of undermining at this moment the Government’s position in negotiations, if they resume.
Many eminent lawyers have spoken in this debate and their verdict has left nothing for the day of judgment, but is this just a legal matter? The Northern Ireland protocol is not a black and white, unambiguous document. It is full of contradictions and matters to be resolved later. There are plenty of examples internationally of politics trumping law. One thinks of the Maastricht treaty and the ignoring of all its provisions on deficits and debt. The disputes between the German constitutional court and the EU have some parallels with our present stand-off, as my noble friend Lord Lilley suggested. Then there is the case of the United States tearing up the Iran nuclear deal; that was an agreement, like the withdrawal agreement, which was lodged at the UN and then simply torn up because the new President took a different view. One may regret these things, but it is fanciful to suggest that the provisions in this Bill would prevent us criticising human rights in China.
The House must bear in mind one important point when considering this Bill. Even if the Commons votes to commence taking the powers in Part 5, the House of Lords would still be able to overturn the policy by voting against the statutory instruments that would negate the protocol. I ask my noble friend Lord True—who knows a huge amount about procedure, perhaps more than anyone else in the House—to confirm that this interpretation is correct, and that even after enactment there will still be opportunities for the Lords to vote against the Government if they choose to activate the policy?
The Government should never have got into this position. I am not convinced by their protests that the EU is not negotiating in good faith; if you lose a negotiation, it is easy to accuse the other side of acting in bad faith. However, the problem we have has been staring us in the face ever since the protocol was agreed in October 2019. That very month, the then Brexit secretary told the Lords EU Select Committee that there would be no export certificates between Northern Ireland and GB. A few hours later, he withdrew that and admitted that there would, but the PM continued in denial and said—including during the election—that if anyone got such a document, they should tear it up.
Today, the Government are trying at the last minute to strengthen their negotiating position by rescinding what they had previously, foolishly accepted. I believe that they have made a mistake in trying to take these powers. The amendment in the name of the noble and learned Lord, Lord Judge, regrets the Part 5 provisions. If the amendment is agreed, what follows is for us to decide later, but since I certainly regret what the Government have done, I shall vote for the amendment.
My Lords, I welcome my noble friend’s maiden speech and look forward to hearing others. In its summary of the Bill, the Constitution Committee mentioned, among others, the following words: does not justify; it is regrettable; engagement has been poor, limited and unsatisfactory; consultation is problematic; the Bill does not mention common frameworks; there is no time for adequate reflection; delegated powers are extraordinary and unprecedented; many are constitutionally unacceptable; and the Government should explain whether clause 6 seeks to constrain Parliament’s law-making power. It is, therefore, legitimate to ask about the drafting of the Bill.
When I was a Minister in the other place, 20 years ago, there was an occasion when I had to call a halt to a Standing Committee where I was in charge of a Bill. The details are unimportant, but it was only then that I discovered that policy officials do not talk to parliamentary counsel who draft the Bill. They commission the department’s lawyers, who then brief parliamentary counsel. I presume that this is to lock in the client legal privilege rules. So it is clear that government policy officials have briefed departmental lawyers to request parliamentary counsel to draft a Bill which, among other things, appears to “constrain Parliament’s law-making powers” and constrain the judicial review function so as to put ministerial regulation-making powers above the law in an unprecedented manner. Parliamentary counsel have carried out that instruction—and that I think is worrying.
The role of the House of Lords is to protect the parliamentary process. It should be a red line for this House. This Bill has the seeds of undermining the primacy of the House of Commons. I will repeat that. This Bill has the seeds of undermining the primacy of the House of Commons. Are there any limits to what can be put in legislation, or will parliamentary counsel simply use the Nuremberg defence?
As the Joint Committee on Conventions of the UK Parliament made clear in its report in October 2006, quoting the noble Lord, Lord Wakeham, the Lords should be very careful about challenging the views of the,
“House of Commons on any issue of public policy.”
It is not an issue of public policy to agree legislation that neuters the parliamentary process, and neither the Government nor the Commons can claim it is. As such, this Bill, which is in no way a manifesto Bill, requires substantial amendments and deletions. Afterwards, we should hear from parliamentary counsel as to whether they operate within any boundaries with respect to defending the parliamentary process.
My Lords, I warmly agree with the words of the noble Lord, Lord Rooker. I congratulate the noble Baroness, Lady Hayman, on her fine maiden speech. I particularly welcome her Welsh half and her comments on devolution, rural affairs and the environment.
I oppose the Bill, which goes way beyond the policy proposed by the Government at the general election. This House would be totally justified in refusing to give it a Second Reading, as the Government have no mandate for it. I salute the fine speech by the noble and learned Lord, Lord Judge, and unite with him in saying: “Not in my name either”.
The Bill gives draconian powers to UK Ministers over matters which have been long-standing devolved responsibilities. Those powers, which return from Brussels, should automatically come to the devolved Governments. If there is a need to establish an all-UK position on some such powers, that should be negotiated between the four Governments and implemented when there is consensus. I will not repeat the points made so effectively by the noble Baronesses, Lady Hayman and Lady Andrews. There is a real belief across party divides in Wales, and expressed by Labour, Plaid Cymru and Liberal Democrat Senedd Members—and, yes, even by some Conservatives—that the Bill, in its present form, is just not acceptable.
The Welsh Government have lobbied Members of this House, begging us to reject the Bill as it stands. They make three salient central points, which were highlighted by the noble Lord, Lord Newby. First, the Bill would destroy the hard work undertaken by the Welsh Government, in co-operation with other Governments in these islands, to establish common frameworks. It would emasculate the Welsh Government’s regulatory powers, ranging from the food sold in Wales to the qualifications of teachers in our schools.
Secondly, the spending powers arrogated to themselves by Westminster Ministers would undermine expenditure policies currently pursued by the Welsh Government, such as free school meals or the funding of road schemes such as the M4 relief road. If the UK Government assert that such funds are additional to the Barnett block, let them write that on to the face of the Bill and it might well be considered. Otherwise, it is a case of Westminster telling Wales how money within the devolved Welsh block should be spent—and that is just not on.
Thirdly, the intention to make state aid and subsidy policies reserved matters gives Westminster Ministers control over economic development throughout the UK when their actual powers in that regard are currently applicable only to England. Such steps would demolish the successful “buy local” policy applied by successive Welsh Governments in procuring products and services—a policy which helped bring Welsh unemployment levels down to the UK average. The Bill gives powers to UK Ministers to intervene in Wales over water infrastructure, sending a shiver of dismay that we are about to see another Tryweryn foisted on us.
Our experience of Tory government promises of major capital expenditure schemes in Wales over the past decade has been disastrous. They have promised: to electrify railways; to facilitate electricity generation projects; a new Wylfa in Anglesey; and tidal lagoons around the Welsh coast. They insisted on keeping power in Westminster; they just have not delivered. Every such election pledge has been broken, so why on earth should we trust them now? In terms of breaking solemn commitments, the Bill surely goes way beyond what is acceptable in its unilateral abandonment of international treaty commitments. It establishes beyond doubt that the Government’s word is not worth the paper on which it is written, and the challenge to this House is to insist that we will not pass any such legislation in our name.
My Lords, I join in congratulating and welcoming the noble Baroness, Lady Hayman. I am sure that most of your Lordships will agree that—after defeating Covid-19—the highest priority for our country, if we are to face the challenges of the next 10 years, is to hold this United Kingdom of ours together. The problem is that devolution has created a whole world of delicate compromises and unfinished constitutional business. Then on to the scene comes the Bill, which I am afraid is a bit like a bull in a china shop.
My question on the devolution side of the Bill is this: I admit that the timing may be unavoidable but, as the chairman of the Constitution Committee, the noble Baroness, Lady Taylor, asked, why on earth could not these issues between the different parts of the kingdom be handled mostly within the common framework procedure or consensually? Why was it decided to try to codify, in law, the thousand and one different complex and ever-shifting connections between all the myriad businesses across the devolved regions, rather than address them as they come along, which they will unceasingly, by ongoing practical co-operation—or maybe just by setting up the new internal market office?
As to the rule of law clauses which have so greatly disturbed your Lordships, and disturbed the legal profession, and indeed many of my good friends, including my noble friend Lord Howard, and now the Archbishops as well, I am a little less worried than some of my colleagues. It is quite correct, as the Constitution Committee’s report pointed, that the late Lord Bingham warned against a Government which “routinely”—and I emphasise that word—disregard their international law obligations, and I would not wish to live for one moment under such an Administration. But the reason I am not so worked up as some are in this instance, is that I believe we may be overlooking the degree to which the whole spirit of the withdrawal treaty and the Northern Ireland protocol was and already being undermined, and is now being undermined, by the other party, namely the Brussels negotiators and their legal advisers.
I believe that this is just what the Lord Chancellor meant when he rightly advised the Constitution Committee to consider the context behind the need for this Bill. Here, too, we are in an area of delicate ambiguity and compromise, as Northern Irish affairs always have been—as the Good Friday agreement was as well, and as I know full well from my years of working there at the height of the time of violence. So my question here, before rushing to judgment, is: why were these tangled problems of treaty interpretation, for that is what they are, not handled in the joint committee for settling disputes, which the withdrawal treaty set up? What happened in that committee? Was there a deadlock? Did the EU side make threats which were, in the Prime Minister’s words, “extreme and unreasonable” and undermined the withdrawal treaty? Were these clauses put into this Bill in fact justified as a response on that account? When it comes to would-be violations of the treaty spirit, are the critics, of which we have heard so many this afternoon, quite sure that they are looking entirely and solely in the right place?
We have asked these questions, but we have got no clear answers so far. Can we please have them now? Can we have a bit of chapter and verse about what actually went on the disputes committee? I know that this will not assuage my distinguished legal friends, nor the Church leaders, but it would at least explain more fully why the clauses got into the Bill and why they were felt to be necessary. Perhaps it would persuade me to oppose the two amendments, even though they have been spoken to by your Lordships at your most eloquent, and by people I most admire.
My Lords, I congratulate the noble Baroness, Lady Hayman of Ullock, on her maiden speech, which I heard with great pleasure from the Strangers’ Gallery.
In the limited time available, I will not dwell on the anxiety and shame I feel about Part 5 of this Bill, which others have expressed so eloquently. I hope and believe that your Lordships will assent to the amendment in the name of my noble and learned friend Lord Judge. I also hope that, in the next few weeks, agreements will be reached with the EU which enable the Government to assent to removing these clauses from the Bill. In passing, I agree with the noble Lord, Lord Campbell, and others, that the amendment passed in another place—that these clauses would not be brought into effect without a positive vote in the Commons—is not sufficient to remove the mischief. These clauses contain a threat which should never have been made, and which must have no place in the United Kingdom statute book. I invite the noble Lord, Lord Forsyth, to consider the precedents that they would provide for an unscrupulous Government in the future.
I shall address my remarks to the situation that will arise if the Government seek to maintain the clauses and can get a majority in the House of Commons to that end. Your Lordships will then have to decide whether we maintain our opposition to them in the face of a majority in the elected House. I have argued in the past, and continue to believe, that this House must recognise the constitutional limitations on our power and must ultimately defer to elected House. But the issues on this occasion are of a different order. The Northern Ireland clauses in this Bill go to the root of our constitution. On this occasion, the power is in your Lordships’ hands, and we may not be used to that. The Government need the internal market provisions in this Bill by 31 December. They cannot, therefore, use the Parliament Acts to get the Bill through. If this House is resolute in rejecting the unacceptable Northern Ireland clauses, the Government will have to agree to remove them if they are to get the Bill passed.
The issues here are the rule of law and our constitution, as well as our national reputation. I believe that it is the role and duty of your Lordships’ House to defend these things, even in the face of an overweening Executive with a majority in another place, and I urge your Lordships to be resolute in doing so. We can prevent this disaster.
My Lords, I congratulate the noble Baroness, Lady Hayman, on an excellent maiden speech and I look forward to many others.
I regard a Bill dealing with this subject as highly desirable, as the present law is principally contained in EU retained law not easily accessible to our citizens. During the discussion on the 2018 withdrawal Bill, the question arose of where powers released by the EU went in the level of our constitution. I took the view that the internal market powers went to the UK Parliament, as legislative authority for them had to go beyond the geographical limitations of the authority of the devolved legislatures, but that it was highly desirable that any exercise of them be the subject of discussion, and if possible agreement, between all four Administrations. The Scottish Minister with whom I was very happy to work closely at that time was optimistic that agreement would be reached. The Joint Ministerial Committee on EU Negotiations was already in place, and intensive work on securing common frameworks as the robust foundation for continuing co-operation has gone well. The Scottish Government have taken a constructive role in that work. Although they have formally taken up a distinct position, their support for independence has not prevented them agreeing to these matters and participating fully in them.
I suggest that this Bill would be greatly improved by providing that any issue to be the subject of a statutory instrument should be discussed in such a committee, and implemented only if it is agreed, or otherwise after a full debate in both Houses of Parliament, and that the Competition and Markets Authority should report to this committee as a matter of course.
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Mackay of Clashfern, and to recognise the work that he did in trying to make sure that we have a good system of common frameworks across the United Kingdom. I also add my warm congratulations on the splendid first contribution to this House by my noble friend Lady Hayman.
The context of today’s debate is of course the ending of the EU transition period, and indeed the ever closer threat of ending that transition without a deal. Last week, the Prime Minister sent to all of us what I thought was an extraordinary letter, which not only repeated the usual misleading claims about the pro-Brexit referendum result but also airily proclaimed that we would prosper mightily, completely ignoring the practical concerns and worries that businesses across the country and our own internal market have about the prospect of no deal. I ask the Minister—as we both come from the north-east of England—given that the head of Nissan has said that Nissan Europe would be “unsustainable” if there is no deal and tariffs are imposed, are the Government prepared to see that outcome? How could such an outcome help their stated policy of levelling up the regions across the UK? It is against this background and the end of the transition period that we have to consider this Bill.
Given that there is almost total support in support in Parliament and outside for ensuring that the UK’s internal market works properly and effectively after the Brexit transition, it is actually incredible that the Government have managed to produce a Bill that has been so roundly and universally condemned, both in Parliament and outside. Inside Parliament and this House, we have had powerful reports—which I hope will get much publicity—from the Constitution Committee, from the EU Select Committee and from the Delegated Powers and Regulatory Reform Committee. Both inside and outside Parliament, we have had concerns expressed by eminent lawyers, by the noble and learned Lord, Lord Neuberger, by the report of the Bingham Centre, and indeed in the letter—with which I strongly agree—that the Archbishops have published in today’s Financial Times.
The worries about the Bill are focused on the fact that it breaks international law, and not just once; it provides for future breaks of the law. In some clauses, it exempts the Government from judicial challenge, which is a dangerous principle. It also seems to break the Ministerial Code—perhaps the Minister can confirm whether that is true or not—it adds a lot of extra Henry VIII powers, and it elicits opposition from the Scottish Parliament, the Welsh Senate and the Northern Ireland Assembly.
Others have made this point, but I would like to reinforce it: I do not understand why the Government did not decide to build on the common framework approach rather than coming forward with the provisions in the Bill. The situation in Northern Ireland is very serious, and became serious the minute the Government agreed to establish an effective border in the Irish Sea. I hope the comments that were made by the noble Lord, Lord Empey, which I am sure will be reinforced by my noble friend Lady Ritchie of Downpatrick, will be taken on board and dealt with properly by the Government.
In conclusion, opposition to this Bill is strong, and it is not a question, as has been alleged, of moaning remainers. It is strong, because there is a strong feeling that the Bill is not in our national domestic interest and does huge damage to our international standing. For that reason, I shall vote for the amendment of the noble Lord, Lord Judge, and I hope, too, that the House of Lords, on this occasion, will be prepared to use the powers that have been given to it in our constitution and stand resolute—in the words the noble Lord, Lord Butler, a few minutes ago.
My Lords, having spent six days in Committee on the Trade Bill debating how we make treaties, and listening to the Minister say continuously how we will be a trusted partner around the world, I, too, regret that we are having to debate how the Government have breached one and intend to breach more. Alas, I had hoped to hear from the Minister, in opening, why and when agreed processes in the joint committee with the EU, and in joint ministerial committees with our nations, broke down, and why those agreements could not be reached, necessitating this Bill.
I want to address Parts 1 to 4, and I do so as someone who was born and lived on the border between England and Scotland and represented a border constituency all my life. Therefore, in my personal, professional and political life, I have seen at close hand the daily interaction between laws, systems, standards, approaches, and regulations—everything from licensing, trade and speed limits to Covid-19 regulations, building regulations and others, many of which predate the European Union and that approach.
I have also seen at close hand the work within the framework agreements. I recognise that there are powers that are being repatriated. The 2020 framework analysis by the Government showed that of 154 policy areas where EU law interacts with devolved competences that are being repatriated, 115 require no framework at all, 22 require a non-legislative framework, and just 18 require a legislative framework.
The Minister did not refer to a defence of Part 5, but I was curious that he referenced whisky and the odd situation, which will be news to English barley providers, in which they cannot sell to Scottish distilleries. They have not been barred from doing so since 1933 in the first legislation, and there are no restrictions. It will be news to the distilleries, which buy their malted barley from Simpsons Malt in my hometown in Berwick, in England, that there is somehow some threat to this. I hope the Minister can clarify that point. Under labelling, composition and standards, that will be covered by the common framework. In fact, that framework was published on 9 October, so where is the necessity for these elements in the example the Minister gave?
The joint ministerial council approach on the frameworks was outlined in a joint communiqué with Ministers on 16 October 2017, in which it outlined the definition and principles of enabling
“the functioning of the UK internal market, while acknowledging policy divergence … Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures … based on established conventions and practices.”
Subsequently, last year, in the Cabinet Office update, which the Minister responding to this debate is responsible for, the government frameworks said that a dispute resolution mechanism was progressing:
“The UK Government continues to seek development of a shared approach to the UK Internal Market”
“we are considering how to manage … framework areas”
going forward. However, this Bill, as the Constitution Committee reported, gave two days’ notice to the devolved Administrations of the text and has a litany of over 30 areas in which there will be no consultation or limited consultation, which will be overlooked, and in which England will be treated differently from the other nations.
It does not have to be this way. Both Canada and Australia, which the Prime Minister is very keen to quote, introduced internal markets in the 1990s. Canada introduced an agreement on internal trade that came into effect on 1 July 1995. After a premiers’ conference, Australia, which the Prime Minister wishes to quote a lot, reached an agreement on principles for a mutual recognition scheme. An MoU was signed and, very symbolically, has the signatures of all the premiers and the Prime Minister.
The border area is one area where we will be living with the consequences of this, and we have seen nearly a decade of significant division and polarisation. Please, Minister, do not force a Bill against the spirit of what has been developed over the last three years, which is consensus and agreement. Do not herald a bad omen for a decade of danger for our beloved union.
My Lords, I join others in congratulating the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech.
I want to confine my remarks to Part 5 of the Bill. I find myself swayed by two completely opposite accusations of bad faith. The Government accuse EU negotiators of bad faith in seeking to erect unreasonable customs barriers between Northern Ireland and the rest of the UK. Opponents of the Bill say that the bad faith is our own Government’s. The withdrawal agreement set up a joint committee to resolve trade issues. The Government have chosen not to use it. So, as Ed Miliband argued in his powerful philippic in the other place, the Government were proposing to breach international law for bogus reasons.
However, having reflected on all this, I cannot support the amendment to the Motion and would like to explain why. To my mind, international law is not the main issue. Never before, many noble Lords have said, have a British Government sought to break international law, but never before has Britain faced a problem of extricating itself from as complex a political, economic and legal structure as the European Union. Law, as the noble Lord, Lord Howell, explained, has to take account of political context, and as my hero, John Maynard Keynes, once said in answer to legal fundamentalists of his day:
“to devise means by which it will be lawful for me to go on being sensible in unforeseen conditions.”
Noble Lords know very well that not every contingency can be foreseen.
So I ask noble Lords to judge the legislation before the House on three different grounds: sufficient reason, motive, and consequences. On the first, I agree with the argument that sufficient reason has not been established for the override of Part 5 at the Government’s discretion. However, by Amendment 66, the Government have agreed to obtain parliamentary approval before activating Part 5, and I think that is a reasonable compromise between those who think that Part 5 is unnecessary and those who think it is essential.
Secondly, I sympathise with the argument that the Government signed the agreement in bad faith in order to meet the Prime Minister’s political requirements. However, most noble Lords have ignored the argument that it was always going to require some bad faith and legal creativity—to coin a phrase—to make the Brexit decision consistent with the Good Friday agreement. When Ed Miliband said
“A competent Government would never have entered into a binding agreement with provisions they could not live with”,—[Official Report, Commons, 14/9/20; col. 52.]
I am afraid that he set the bar of competence much too high. Contrary to the view of the noble Baroness, Lady Humphreys, deliberate ambiguity has always been the hallmark of statecraft.
Finally, what will the consequences be? The legal fundamentalists say it will damage our ability to get an agreement, because it will damage trust in the Government’s word—a powerful argument. The pragmatists believe it will force the EU negotiators to come up with a workable exit formula. Time will tell whether the Government have calculated the balance of risks properly. My own feeling, contrary to much noble rhetoric, is that we are still largely in the world of posturing. That is the way the EU and many other international negotiations work: public posturing followed by a last-minute outbreak of common sense. I think that is the way it will turn out, and I do not want to do or say anything that will weaken the hands of our own negotiators.
My Lords, I declare my interests as independent reviewer of the UK Government’s union capability and as a member of your Lordships’ Constitution Committee, whose detailed report on the Bill I commend, like others, to the House.
I doubt there is anyone in this House who does not support the goal of ensuring our UK domestic market continues to work seamlessly at the end of the EU transition period. This market, and the trade it generates, is, as the Minister said, an engine for providing jobs and prosperity in all parts of our country. The UK domestic market is an essential feature and asset of the union, so the Government are right to want to protect frictionless trade within the UK once we leave the EU’s legal orbit. They are right also to want to be able to guarantee to international partners that the terms of new trade agreements will be implemented throughout the UK. Today, the assurance regime is provided by an EU single market framework, and I agree with the Government that, going forward, we need an equivalent UK framework.
There are, however, two questions that need to be asked, and have been asked during the debate. Is this Bill necessary to achieve the Government’s stated aims? If the Bill is necessary, perhaps as a belt and braces insurance policy, is this the right way to legislate?
On the first question, I am doubtful. The European Union (Withdrawal) Act 2018 already provides a mechanism for constraining the ability of the devolved Administrations to diverge, while a common frameworks process is taken forward to agree UK-wide approaches for the powers flowing back from Brussels—a process that has been yielding results. As we have heard, the devolved Administrations are also already required by law to adhere to international obligations, including trade treaties. Moreover, the Government’s own analysis makes clear the considerable economic costs for devolved territories should there be any disintegration of the UK market, so there are strong incentives for all those involved to agree common frameworks.
On the second question, by bringing forward a Bill in this form, the Government have reached for the proverbial sledge-hammer to crack a nut. For example, the UK Government previously agreed with the devolved Administrations a set of principles for common frameworks. One of these is to
“maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules”.
However, the regime created by the Bill is more restrictive, with fewer public policy exclusions, than the EU framework it replaces. Whereas common frameworks are subject to joint decision-making involving the UK Government and the devolved Administrations, the Bill confers on UK Ministers extensive delegated powers to alter devolved competence and in places to exercise them without even the modest requirement to consult the devolved Administrations.
All this strikes me—and the Constitution Committee —as an unnecessarily heavy-handed approach to balancing the demands of free trade within the UK with respect for the roles and responsibilities of devolved institutions. Devolution is now integral to the UK’s constitutional arrangements. At a time of national crisis, when it has never been more important for central and devolved Governments to work together effectively, to risk destabilising those arrangements seems careless, to say the least.
The broader question for the House and for this union Parliament is: do we want our country’s future to be all about endless intergovernmental competition and conflict or about co-operation and confidence? I am in no doubt that a modern, thriving, forward-thinking and inclusive UK union needs to look and feel like a joint endeavour, a union less preoccupied with battling over competences and more concerned with winning over hearts and minds. That is why I hope the Government will demonstrate enlightened and imaginative leadership by working constructively to amend the Bill.
My Lords, I was delighted to listen to my noble friend Lady Hayman, who will add high-quality, youthful value to our Labour Benches.
This Bill will breach the European Union withdrawal treaty, freely entered into by the Prime Minister less than a year ago, and the rule of law, as the noble and learned Lord, Lord Judge, and my noble and learned friend Lord Falconer so eloquently argued, significantly backed, among others, by a very recent Conservative Europe Minister, the noble Lord, Lord Bridges. It has also further damaged British-Irish relations by undermining the Ireland-Northern Ireland protocol, necessary to avoid a hard Irish border. As with the Trade Bill, there is an urgent need to insert clear protections for two international agreements the United Kingdom has entered into and ratified recently: namely, the Belfast/Good Friday agreement and that very protocol.
As the Bill undermines the Good Friday agreement of 1998, US leaders have stated bluntly that it could jeopardise any chance of a UK-US trade deal. Without the unifying framework provided by the EU, responsible for policies including state aid, the environment, agriculture, food manufacturing and animal welfare, the Bill represents a clear power grab by London from the devolved Governments. The Prime Minister has suddenly discovered the benefits of having a single market—the UK internal market of 66 million people, rather than the much larger and richer EU single market we have been a member of, of over 500 million.
Under the Bill, not only is state aid policy to be returned from the EU to Westminster but the UK Government also get new financial powers. Both proposals will further weaken the current intergovernmental arrangements, whose fragility has been exposed by Covid-19. Perhaps we should not be surprised that the Government adopt the posture of a public schoolyard bully when it comes to the devolved nations of these islands, where No. 10 seems to believe it holds all the cards and has nothing to lose—apart from perhaps destroying the United Kingdom.
For more than three years, the Governments of Wales, Scotland and Northern Ireland have sunk their very large political differences with the UK Government over Brexit in order to address its fallout in terms of managing the UK internal market. This led to the common frameworks programme, which was intended to take the areas of the economy where—and I stress this—the UK Government believed there to be a risk to the integrity of the UK’s internal market from the removal of the constraints to regulate in accordance with EU rules. This Bill brushes all those common frameworks arrogantly aside.
Whether or not there is an orderly end to the transition period in December, Brexit will have implications for the totality of the relationships between Westminster and the nations and regions of the UK, and for those on the island of Ireland, with the financial provisions of the Bill tightening Westminster control over economic, industrial and regional development policy throughout the UK. This is likely to fuel calls for indyref2 in Scotland and, eventually, a unification referendum in Northern Ireland. It may be that this Bill serves to hasten the break-up of the UK, which is another strong reason to oppose it.
My Lords, when we, as one nation, fully transition out of the EU, we must face the new reality and its challenges together and continue to work to maintain and grow the links and ties between all four corners of this country. That means building on the work to date and improving relations throughout the United Kingdom. For the avoidance of doubt, I emphasise that my party, the Democratic Unionist Party, believes that the progression of the Bill is of the utmost importance.
Vast swathes of the withdrawal agreement were wholly unsatisfactory, as in essence they created an unthinkable scenario for anyone who values the United Kingdom: a virtual border in the Irish Sea. Strands of the withdrawal agreement also made provision for a series of potentially complicated and burdensome checks on food and agricultural products entering Northern Ireland from mainland Britain. As a result, some in Northern Ireland, instead of benefiting from the removal of red tape as we leave the European Union would be required to endure extra layers of it. I welcome the Government’s assurance to the contrary, but we must continue to do all we can to ensure that there are no long-term, damaging barriers between different parts of our nation.
The withdrawal agreement and the political declaration, although in parts unsatisfactory, recognise the autonomy of the EU and the UK. However, a unique difference remains between the two parties: while the United Kingdom is a legally defined and globally recognised sovereign nation-state, the EU is simply an international body. During its history, and at the outset of the withdrawal negotiations, the EU recognised the sovereignty of the United Kingdom. Since then, regrettably, negotiators and some spokespersons appeared to disregard this sovereignty by ignoring the settled status of Northern Ireland, thereby interfering in internal matters and potentially undermining the defined constitutional status of Northern Ireland. Comments from officials in Brussels have been unhelpful and have shown a disregard for Northern Ireland’s unique and deeply troubled past, our shared future and the UK’s legal status as a sovereign nation.
Though I welcome the Bill, it remains true that businesses in Northern Ireland are confused. They may still have to adhere to conflicting regulations. There may still be divergence and associated costs. A scenario is still possible whereby a firm located in Belfast is unable to benefit from financial assistance that is available to one in Birmingham or Swansea, and therefore finds it advantageous to relocate. Can the Minister specify whether the Government plan to include Northern Ireland in the provisions outlined in Clauses 42 and 43?
In the other place, my party sought to allay fears by ensuring, through amendments, that the Government carried out impact assessments. Our purpose was to bring some reassurances to businesses that are potentially unfairly disadvantaged compared to their counterparts in mainland Britain. It is essential that we ensure the long-term prosperity of Britain and the viability of businesses. One part of our nation should not be left behind simply because of the proximity of a land border. I firmly believe that there is widespread support for a sensible free trade agreement with the EU that allows the UK to establish itself as a strong. outward-looking trading nation. A free, independent and United Kingdom can, and should, be a major global force on the world stage once more. I support the Bill.
My Lords, it is a pleasure to follow the noble Lord, Lord Browne. I have heard it suggested that there is no need for this Bill. Indeed, such doubts are rehearsed by the distinguished Select Committee on the Constitution in its 17th report. This may be technically and legalistically correct. However, I would contend that such a view overlooks a significant historical consideration. Before we joined what was to become the EU, a single unified internal market was for 300 years the constitutional bedrock of Great Britain, extended to Ireland 100 years later. The absence of the taxes, custom duties and other restrictions that were so crippling to much of mainland Europe created the conditions to usher in the industrial revolution. Now, as we prepare to leave the EU, it is imperative that we legislate to restore the conditions of a single UK market, tailored to the 21st century. Yes, the Bill is necessary.
There can be no doubt that the Government find themselves in a bind, one that is to a large extent of their own making. Furthermore, the European Union Select Committee, of which I have the privilege of being a member, has long warned of the problems that have now become so critical. I was also deeply saddened that a Minister of the Crown should speak in the other place as he did. As my noble friend Lord Bridges said, it is no mitigation to say that others, including the EU, breach international law. However, there appears to be no agreement among senior lawyers as to the legitimacy of the proposed measures that have given rise to such controversy. I cannot agree with the Constitution Committee’s witness who said:
“Let us accept that the Bill breaks the law.”
The Bill does not break the law, nor does it threaten to do so. According to Mr Martin Howe QC, no breach of international law could possibly occur until regulations under the clauses in question were actually brought into force; even then, whether or not making such regulations would amount to a breach would depend on the circumstances then prevailing and the reasons for making those regulations.
I have heard it said that the inclusion of the controversial clause is part of a negotiating tactic. There are further suggestions that the tactic has worked, to the extent that the EU withdrew from its indefensible position of threatening to withhold third-country listing. The problems that could arise from the failure to address the nightmare so-called direct effect could have catastrophic consequences, something that has been largely ignored by the media and, sadly, has earned scarcely a mention in contributions today. Scandalously, the Opposition Front Bench was entirely silent on the matter.
I support a Government who uphold and defend the country’s vital interests. I sometimes gain the impression that I am in a minority in your Lordships’ House. I hear it claimed that objections to the Bill are unrelated to Brexit. It is certainly the case that many noble Lords, much to their credit, have buried their pain and sadness occasioned by our leaving the EU and chosen to move on. However, this House is essentially a remainer House and its committees are remainer committees. There is nothing dishonourable in that but it seems to have led your Lordships’ House to move from acting as a revising Chamber to being one of opposition, a position apparently supported by the noble Lord, Lord Butler of Brockwell.
I have been a Member of this House for 30 years and I remember being on the Opposition Benches with a built-in majority. I recall how we acted with considerable restraint, as we certainly should have done. In those far-off days, Cross-Bench Peers tended to vote only on matters of their field of expertise while the Lords Spiritual were reticent in displaying their partisanship. It all seems such a long time ago. I mention this because it occurs to me that if this House is serious about trying to influence the Government, it might alter its tone. I reflect that on the great issues of the time, and many others, this House has put itself at odds with the Government, with the other place and, to judge by the general election, the people of this country. It bodes ill for an institution to persist in saying that it knows better than the people it is supposed to serve.
My Lords, I add my warm welcome and congratulations to my noble friend Lady Hayman of Ullock. Despite the case just made by the noble Lord, Lord Cavendish of Furness, it is a puzzle to me that the Government have introduced this Bill, given the commitment agreed in the Joint Ministerial Committee—of Ministers of the UK and the devolved Governments—to develop by consensus common frameworks for the UK internal market. We are told that good progress has been made on that yet, with perfunctory consultation, the Bill has been brought in.
The Bill contains no mention of common frameworks. It takes powers to override devolved legislation by means of regulations passed at Westminster and to spend money in areas of devolved competence. It contains only patchy and vague provisions for future consultation on the exercise of the powers that it creates. It has provoked indignation in Wales, Scotland and Northern Ireland, and legislative consent is highly unlikely to be forthcoming. The Bill is disrespectful to the devolved Administrations. When the union is under great stress from Brexit and Covid, it is also reckless.
The Bill is disrespectful towards this Parliament. It contains egregious Henry VIII clauses, most notably Clause 53(2), which says:
“Any power to make regulations under this Act includes power … to amend, repeal or otherwise modify legislation.”
The Bill is disrespectful towards our treaty partners. It authorises breaches of the Northern Ireland protocol and the withdrawal agreement. The Government offer as justification that the EU may intend to interpret ambiguities in the withdrawal agreement—ambiguities that the Government were happy to write in a year ago—to the detriment of the UK’s internal market and the Good Friday agreement. Ministers may see this as a suitable tactic in the Brexit negotiations. It may also be a reckless reminder to other countries not to trust perfidious Albion.
The brutal declaration in the House of Commons by the Northern Ireland Secretary that the Government are deliberately taking power to break international law sounds a loud alarm. The Bill is disrespectful to the rule of law and the judiciary. In this regard it echoes thinly veiled threats to the judiciary in the Conservative manifesto, the notorious remarks in Conservative Home by Suella Braverman shortly before she was appointed Attorney-General, and attacks on lawyers by the Home Secretary and the Prime Minister at the Conservative Party conference.
The Government make the case in self-exculpation that their defiance of international law is legal under domestic law. They also insist that they are not precluding judicial review, although in Clause 47 they go to extreme lengths to insulate regulations made under the Bill from challenge. The Government cannot justify what they are doing by quibbling. Constitutionality entails acting in a spirit of respect towards the rule of law, including both international law and, in our domestic jurisdiction, the effective ability for persons to have redress in court for the misuse of executive power.
It consists in respecting conventions which, though uncodified, ought to be binding on Ministers and on Parliament. These conventions include respect for the role of other institutions which form part of the constitution, among them the devolved Administrations as well as the judiciary, and therefore acting with restraint towards them. Proper government keeps the convoy moving along together. It shows itself to be trustworthy. The doctrine of the omnicompetence of statute, undoubtedly valid, is gratifying to the vanity of parliamentarians and convenient to Governments, but such ill-judged deployment of statutory power as we see in this Bill risks imposing intolerable stresses on the cohesion of the constitution and of the United Kingdom.
The Bill is an expression of a loutishness that characterises this Government’s political dealings. Where will this debasement of our democracy take us if we collude in it?
I remind the noble Lord of the advisory speaking time. We cannot go beyond midnight, and if everybody goes over, some Lords will have to wait until tomorrow to speak.
In this House we must do all we can to limit the damage that the Bill causes, starting by supporting the amendment of the noble and learned Lord, Lord Judge.
My Lords, since I am speaking from Hayman House, my home in Gresford, it would be churlish of me not to welcome the noble Baroness, Lady Hayman, and congratulate her on her excellent maiden speech.
On 2 October 2019 the Brexit Secretary, Stephen Barclay, told the EU Committee of this House that Northern Ireland businesses would have to complete export declarations for goods moving from Northern Ireland to the rest of the UK. Shortly afterwards, on 7 November, the Prime Minister told exporters in Northern Ireland, in answer to a question, that if any business was asked to fill in customs declarations, he would direct them to throw the forms in the bin. That is his typical jocularity. He said:
“There will be no forms, no checks, no barriers of any kind. You will have unfettered access.”
That is what the provisions in Clauses 44 to 47 of this Bill are all about: to save face. The Prime Minister cannot admit that he told off-the-cuff porkies—or more likely that he did not understand the written agreement he had signed.
The Government say that the Bill does not in itself breach the written agreement: only potentially, as the noble Lord, Lord Forsyth of Drumlean, argued earlier. The noble Lord, Lord Cavendish of Furness, went further a moment ago and asserted that there was no breach of the law at all. If I give a knife to a person of unstable temperament with the foresight that he will use it to stab somebody, I break the law. It is no defence to say that I thought that he would only use my knife “potentially”. These clauses are an instrument positively designed to empower Ministers, first, to act illegally and, secondly, to ensure that the powers of the court to stop them by judicial review are removed. It is as though I told the potential murderer, “Look, here’s a knife and I guarantee that you will not be prosecuted if you use it”. The noble Lord, Lord Lamont, said, “Well, all they’re doing is threatening to rescind an agreement they should never have made, to strengthen their negotiating position”. Well, it has not worked, has it? As the noble Lord, Lord Butler, said, it is a threat which should never have been made.
It would have been 1945, with Christmas approaching, when my father decided to make me a toy gun. He carved and varnished a wooden stock and added black piping to look like a barrel. On Boxing Day, I proudly took this toy gun out to play, but it was quite a tough area. It is in my mind’s eye now. I was approached by two youths who were four or five years older than me. They threatened to bash my face in if I did not hand the gun over to them. I did so, and you can see that it rankles after 75 years. A threat is not in the long run a good negotiating tactic. You may succeed for the immediate moment, but the resentment lasts for years; the reputation is damaged beyond repair. Why should the European Union believe any compromise the Prime Minister puts forward this coming week on state aid, fisheries or the like? He has weakened his bargaining position.
The Lord Chancellor justifies taking these powers on the basis that there
“could be a material breach by one of the parties”—
he does not say which party or what breach—of the withdrawal agreement. Do you have a better point, Mr Buckland? Robert Buckland comes from Llanelli. When the noble Lord, Lord Campbell of Pittenweem, referred earlier to the oath of Queen’s Counsel, I remembered that it was another Llanelli boy and Lord Chancellor, Lord Elwyn-Jones, who took my oath of office in the Moses Room some 46 years ago. What, I wonder, would he have thought of such a manifest breach of his oath of office, which commences: “I swear by Almighty God to uphold the rule of law”?
My Lords, it is a privilege to speak in this debate, but I notice that only a handful of noble Lords appear to support the Bill as presently drafted. I want to put on record that I very much welcome the intervention of the most reverend Primate and the letter signed today by the Archbishops.
This Bill has a significance for this House considerably greater than almost any other Bill that we have been asked to consider. Having over the weekend read the excellent report by the Select Committee on the Constitution, I am even more concerned as a layman by certain clauses in it, particularly Clauses 44, 45 and, especially, 47. In a single piece of proposed legislation, the Government have managed to antagonise almost everyone, including a multitude of counterparties and international public opinion.
First, many members of the United States House of Representatives are concerned about any move that could undermine the Good Friday agreement, and they have made it clear that this legislation puts at risk the future approval by Congress of a US-UK free trade agreement. Secondly, the Government have antagonised the European Union, which sees the legislation as abrogating parts of the withdrawal agreement signed only 10 months ago. Thirdly, they have antagonised the devolved Administrations, who feel that they have not been properly consulted and that the legislation goes against certain parts of the various devolution settlements. The Government have in fact admitted that in certain respects the Bill breaks international law.
It is therefore difficult to believe that government Ministers and their political advisers have really given sufficient thought to the consequences of this proposed legislation. Clearly, legislation is required to ensure that an internal market can operate in these islands, but it was always inevitable, in Mr Johnson’s withdrawal agreement, that there would have to be some sort of documentary border in the Irish Sea. That was not true of Mrs May’s deal, which unfortunately the other place repeatedly rejected. However, the Northern Ireland arrangements can still be negotiated in the joint committee, and as for the arrangements with the devolved Administrations, these can surely be negotiated within the common framework process. So parts of this Bill would seem unnecessary—a word so liked and used by Ministers when rejecting other Lords amendments to other Bills.
The most effective way in which this House performs its duty is to ask the Government and the other place to think again. Surely there could be no more important Bill than this one on which to perform that duty. Having read the various reports from the committees of this House, we must ask the other place to think again, particularly about Part 5. Should the Bill return to us unamended, it may well be necessary, as the noble Lord, Lord Butler, suggested, to do so a second time. In the meantime, I will vote tomorrow for the amendment in the name of the noble and learned Lord, Lord Judge, when it is put to a vote.
My Lords, I would not dream of questioning the judgment of the noble and learned Lord, Lord Judge, in matters of the law—of course I would not—but I would say that the rule of law, as a matter of principle, is as important to me as it is to any noble Lord, however learned. However, like many legal matters, it is a question of fact and degree. I am not a lawyer but I have been involved in enough litigation to know that two Silks of equal distinction can produce very different and equally persuasive arguments for or against almost any legal question that any of us could pose.
These things are not, as some would like to have us believe, black and white. Like everything in life, they come in shades of grey. To my father, as a newly qualified barrister in 1938, the invasion of Poland in 1939 was not grey; it was completely black and white. However, having sat through the debates in your Lordships’ House in 2003, to me it was clear that many of the lawyers in this House came to a very different conclusion about the legality of the invasion of Iraq from that reached by the Labour Government. To them, it was not black and white; it was a matter of opinion.
In terms of degree, my belief in the rule of law, which I consider to be probably the most important principle that we espouse, has not stopped me from time to time—I hang my head in shame today—parking on a double yellow line. I do not suppose that I am the only noble Lord to have broken the law at some time or another. It would be hypocritical of us not to admit that we can all be flexible when it suits us.
I share with others regret that my right honourable friend the Secretary of State made the statement in the other place that set this hare running. I do not know whether it has been suggested that the Government felt that that declaration from the Dispatch Box would provide some form of legal cover in the event that some remainer obsessive decided to run another case to the Supreme Court in the hope that that court would be prepared to compromise its reputation by indulging in another political judgment.
It is primarily a political and not a legal matter when a foreign power seeks in negotiating an agreement, supposedly entered into in good faith, to use that negotiation deliberately to interfere with the delicate relationship between the component parts of an independent nation state, such as those of Great Britain and Northern Ireland. It is perfectly obvious that the European Commission very early on worked out that this was our Achilles heel, and has done its level best to exploit this for its own ends. That is not the conduct of a good neighbour and trading partner acting in good faith; that is the behaviour of someone who does not wish us well. It is in effect a trap, deliberately placed where it would do the most harm. But what Government, having spotted this trap, would continue to blunder on, rather than take whatever measures they could to avoid it? It is the Government’s duty to avoid a trap, almost at any cost, which is precisely what the Bill seeks to do.
A final point on the issue of national reputation: who is it, I wonder, who will think so much less of us for having ducked this punch, aimed as it was below our belt? For example, I am not very interested in China’s view of our trade arrangements with Northern Ireland, particularly in comparison with their behaviour towards Hong Kong. Nor will I take any lectures from Mr Putin about the rule of law. President Trump thinks we are mad not to have walked away from the EU years ago, and Mr Biden has already made his views—firmly in line with those of his Irish republican voters—clear, and there is no changing that. The current members of the EU obviously think the worst of us, and they always have done. But who cares?
I do business in South America and Africa, and no one I have ever met in either of those continents has the remotest interest in this squabble, but they would all love to do business with us. Our Commonwealth friends are not fooled by this stuff. Saudi Arabia and our allies in the Gulf share the same view as their new Israeli friends—that business is business, a view shared by our Pacific trading partners. If our reputation is harmed, I am struggling to see with whom.
My Lords, as the Attorney-General, I had a duty to advise Ministers of their legal obligations. This was not always straightforward, and I am particularly aware of how I strove to achieve and advise compliance with the law, particularly in Kosovo and the rules of engagement in Sierra Leone. Parliament and Ministers accepted my advice, though as a leading counsel I had to defend the United Kingdom before the international court in The Hague.
As the greatly admired Lord Bingham wrote in his book The Rule of Law:
“The rule of law requires compliance by the state with … international law”
and national law. Ministers, civil servants and our Armed Forces are bound by the need to observe international law. The rule of law is not negotiable; to defer breaches does not alter the fact that Parliament is being asked now to legislate in breach of its obligations. It is similar to blessing a potential burglar or murderer for any future wrongdoing.
We have already lost one esteemed and distinguished law officer. Is it not the time that we have a clear statement on where they stand from the Lord Chancellor, who has a statutory duty to maintain the rule of law, as well as the remaining law officers, who are clinging to office?
I turn now to devolution legislation. As one of the architects of Welsh devolution, which I began as a graduate student in Cambridge in 1953 and culminated in 1999, I regard it as my duty to safeguard the settlement. Once powers are devolved, they cannot be withdrawn. The Bill drives a coach and four horses through the devolved settlement. The Welsh Government tell me that the United Kingdom Governments have worked collaboratively on the common parliamentary programme for three years; this Bill neuters it and hollows out the powers of the devolved legislatures to regulate policy areas. There is no time to give examples. In the memorandum from the Welsh Parliament, it spells out its grievances.
I will make two points. First, the Bill contains, for the first time, powers for the UK Government to spend money over the heads of devolved Ministers—[Inaudible.] I ask the Minister to confirm whether that interpretation by the Welsh Government is right. Secondly, the Bill seeks explicitly to amend the Government of Wales Act to add the design and operation of state aid policy to the list of reserved powers. Again, examples have been given. Could we have a statement on that issue and on whether the Welsh Government are right? Again, I would like the Minister to confirm what the position is.
The brief for the Bill states that the devolved Administrations will see their powers increase significantly following the transition period and the transfer of EU powers, and will be able to use new and existing powers within the internal market system. Who is right: the Welsh Government or the Minister, as he set out in his speech? Is that factual brief correct?
I will ask one further question: is it the Government’s wish and intention to go back on the settlement of devolution over 20 years, or is the Bill an inadvertence that will undermine the unity of the United Kingdom? Is that what they want?
My Lords, I begin by congratulating the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech and by saying how much I look forward to hearing from my noble friend Lord Sarfraz very shortly.
Because of Part 5, very few are prepared to give the Bill their wholehearted support. I am not one of them, and, in the event of a Division tomorrow, I will without hesitation support the regret Motion moved by the noble and learned Lord, Lord Judge. To do otherwise would be wrong as a matter of principle, but as a former law officer, like the noble and learned Lord, Lord Morris, and as a Member of the other place and of this House since 1992, it would also be a matter of personal shame to agree to such flagrant abuse of the rule of law and our international treaty obligations.
Set against last year’s unlawful Prorogation and the fact that Mr Dominic Cummings is the instigator of Part 5 and is the latest person to have been found in contempt of Parliament, I am not surprised, although I ought to be shocked, that, first, a Cabinet Minister could say that the Government intended to break international law, and, secondly, that the Attorney-General could apparently advise the Government that what was proposed was defensible as a matter of law. It plainly is not, even if some may think it has political advantages.
I have heard excuses for Part 5, which contains provisions that unquestionably breach international law or authorise such breaches, from Members of Parliament not previously noted for their interest in questions of international law and from government Ministers. They appear to confuse the sovereignty of Parliament with the Government’s treaty obligations. If sophistry is an unparliamentary description of what we have been asked to believe, let me say instead that the explanations for Part 5 are risible. They amount to bad law, poor diplomacy and inept politics.
Let us be clear: the European Union withdrawal agreement is not some ancient treaty entered into by two medieval monarchs when our customs and usages were very different, nor is it as difficult to understand as the Schleswig-Holstein question. It is only a year since the Prime Minister agreed to it—not just bits of it, but all of it, including the Northern Ireland protocol, the clauses referring to EU law, and the trading arrangements between Great Britain and Northern Ireland, and Northern Ireland and the Republic of Ireland. It is barely six months since Mr Johnson, in the triumphant afterglow of the general election, recommended it to Parliament for translation into United Kingdom law.
We have not heard publicly from the Attorney-General. It is entirely normal for the law officers to keep confidential their advice to the Government, albeit that the Attorney-General has published a digest of the opinion of the three lawyers she selected to advise her. Its conclusions are not convincing, save perhaps as a political manifesto. Certainly they did not impress the Treasury Solicitor, Sir Jonathan Jones, who resigned rather than be party to this unlawful policy. Nor did they impress my noble and learned friend Lord Keen of Elie, who, despite valiantly trying to bring the Government to a proper understanding of the rule of law and their obligations freely entered into as parties to international treaties, resigned as well.
However, it is not just a breach of international law; Part 5 also undermines our domestic law. Clause 47 is breath-taking. It will give Ministers the power to make regulations and renders those regulations unassailable, even if they break the law. Thomas Cromwell would be proud of this clause. It prevents legal challenge so that no court can rule against them. Government by ministerial decree is certainly not what we should see in a parliamentary democracy.
Under Section 25 of the Theft Act 1968, “Going equipped” is a crime. It is an offence, when not at home, to be in possession of an
“article made or adapted for use in committing a burglary or theft”.
Part 5 is the equivalent of the burglar’s jemmy. Government and law officers should not advocate their use and expect to retain the respect of Parliament or the legal profession.
Like other noble Lords, I wish to focus today not on the broader provisions of this Bill but on Part 5. Giving Ministers the power to break the law seems to me an astonishing thing for Parliament even to contemplate, let alone agree to. I quite understand that there are situations where there may be argument about what the law is or whether particular matters fall within the provisions of a given law, but that does not appear to be the case here. The Government have acknowledged that they wish Ministers to be able to break a law. The fact that it would be in a “limited and specific way” seems to me to be irrelevant. Why should the residents of Greater Manchester not now feel that they can break the law in a “limited and specific way”?
The Government have advanced the argument that this is a provision that would only be applied if the EU had previously acted in an “unreasonable” way in implementing the withdrawal agreement. However, as we have heard many times, there is already a dispute resolution mechanism in place to deal with this situation, and, if this is deemed insufficient and the Government see the need for new primary legislation, why not enact it once the other party has patently broken faith? Emergency legislation could then be made specific and passed swiftly, and the UK would be reacting to a breach of trust rather than creating one.
However, I wish to make another, broader point about power this evening. In setting and carrying out its foreign policy, the UK is essentially seeking to persuade countries to do things they would otherwise not do or to dissuade them from doing what they otherwise would. Such persuasion rests upon the ability to convince or to compel, which, in turn, is based upon the power that we wield in the international arena. The underlying foundation of that power is undoubtedly our economic strength, but it also depends upon a degree of moral authority.
If we are to convince others of the force of our arguments, they need to know whether they can rely upon what we say, whether we deliver on our obligations, whether we are steadfast or blown by the latest wind— whether they would be prepared to buy a used car from us. Even when we seek to compel rather than convince, both our hard and soft power are most effective when arrayed alongside that of our partners, who know the quality of our contribution, who know that we can be relied upon to fulfil our undertakings and who trust us.
It is clear that certain clauses within Part 5 of this Bill have already undermined international trust in the United Kingdom. EU leaders are looking for harder and more specific conditions in any new agreement with the UK because they now view us as untrustworthy. Our power in the world has been diminished by this Bill and will be diminished further if it is passed unamended. This seems a strange way to advance the cause of global Britain.
Therefore, there are very clear practical reasons for doing something about Part 5, but, above all, there is the fundamental issue of principle. The Government exercise authority through the law; if they undermine respect for the law, they undermine both themselves and the stability of our society. This is surely not the path we, as a nation, wish to follow. I urge the Government to think again, and I shall certainly support the amendment of my noble and learned friend Lord Judge.
My Lords, it is with great pleasure that I stand to give my first contribution in your Lordships’ House. I congratulate the noble Baroness, Lady Hayman, on her very thoughtful maiden speech.
I have not been a Member long, but I have learned that this House is full of very kind and generous people who have been incredibly welcoming to me. I would like to thank the wonderful doorkeepers, Black Rod, the Clerk of the Parliaments and all the staff for their warm welcome. I am very grateful to them, as well as to my supporters, my noble friends Lord Goldsmith of Richmond Park and Lord Choudrey. I am particularly grateful to the Prime Minister for giving me an opportunity to be part of your Lordships’ House. I have learned about the procedures of this House from my Whip, my noble friend Lord Borwick, and my mentor, my noble friend, Lord Leigh of Hurley. There is a tremendous amount I hope to learn from Members of this House across all parties, who have had such distinguished and diverse careers.
I grew up in Pakistan in a family with a tradition of military service. Both my grandfathers were officers in the British Indian Army and my father was commissioned as a naval officer at the Britannia Royal Naval College. I could not serve in the military because I have asthma, but I now have the opportunity to serve in a different way from the floor of this House. I understand that maiden speeches are meant to be uncontroversial, so I will keep my contribution short and sweet.
In global Britain, entrepreneurs in the technology industry will play a huge role. I am a proud member of the ethnic-minority community of the United Kingdom and I would like to work with my own community so that we can continue to make important contributions in the global economy. For example, the CEOs of Google, Microsoft, IBM, Mastercard and Adobe—among many others—are all from ethnic minorities. I refer to my interest in technology venture capital as set out in the register. We in the United Kingdom have been at the forefront of innovation for centuries. Many people believe that venture capital was invented in Silicon Valley but it was actually invented in Birmingham. In the 18th century, members of the Lunar Society would meet monthly to discuss, demo and fund the greatest technology innovations of their time.
In my career, I had the privilege of observing that one of the determining factors of success and failure is entrepreneurs having access to a strong domestic market. As global as technology markets are, entrepreneurs who can quickly and easily build a foundation in domestic markets are often the ones who have the necessary platform to then scale internationally. The history of virtually every successful technology company started with early commercial wins in a sizeable domestic market. We are fortunate that the United Kingdom is a strong domestic market, especially for entrepreneurs. We must make sure that our start-ups—whether in space technology in Glasgow, cybersecurity in Belfast, digital health in Cardiff, artificial intelligence in Oxford, life sciences in Cambridge, the internet of things in Manchester or virtual reality in Liverpool—all have access to a strong, stable UK internal market with certainty of rules and regulations. I am therefore pleased to support this Bill in your Lordships’ House.
Finally, I would like to thank my family, my parents, my wife and my beautiful daughters for their long-standing love and support, and I thank noble Lords for giving me an opportunity to participate in this important Second Reading.
My Lords, I am delighted to follow my noble friend Lord Sarfraz and congratulate him on his excellent speech. I also congratulate the noble Baroness, Lady Hayman of Ullock.
As my noble friend rightly said, maiden speeches are meant to be uncontroversial. His contribution was in no way controversial; in fact, it was deeply encouraging and seriously important for the House as a whole. The Governor of Punjab, among many political and business leaders in Pakistan, paid tribute to my noble friend Lord Sarfraz on his elevation, saying that Aamer Sarfraz has helped to build a bright image of Pakistan in the international community. He said:
“You made Pakistan and British Pakistanis proud.”
At such a young age my noble friend Lord Sarfraz brings enormous experience as an entrepreneur and venture capital investor. He has also initiated many social projects, including training thousands of smallholder farmers in the Punjab, and has supported many charitable endeavours, including horse-riding therapy for children with special needs. I have no doubt that my noble friend will make many important contributions going forward. From a proud British Jew to a proud British Muslim, I say that I look forward to continuing to work closely with my noble friend for the benefit of British society from within our House of Lords.
My noble friend Lord Sarfraz made a strong point about the need to have access to a strong and stable internal market, with certainty of rules and regulations. I note that the Scottish Government called this Bill a “power grab”. On that point—that goods and services sold in part of the UK must be available for sale in the rest of the country—the Scottish government said it would,
“effectively be limiting standards across the country to the lowest of the four nations.”
I just cannot understand their pessimism. As for it being a power grab, it was no surprise that MSPs voted 90 to 28 to reject a legislative consent Motion. It is clear that the SNP would really like to hand back powers to the EU and/or keep most of them for themselves as an independent country. I joined the Conservative and Unionist Party, and I support this Bill’s intention to maintain high standards across the whole of the UK.
Like the noble Lord behind me, I am not a lawyer, nor are most of the people in our country. They want clarity. I was a reluctant remainer back in 2016 but I am not today: I am neither reluctant nor a remainer. Permit me to put these last few words simply—the sort of words that would be uttered in a pub, if we could get to one. We were a member of a club of 28, where, throughout, there was a rocky relationship. We voted to leave and tried to negotiate a mutual and sensible exit in good faith, but it seems that the good faith has not been reciprocated. There is still time for the EU to act in good faith, and there would be no need to break any laws at all. But, ultimately, we can create our own rules for our own club: the club of the United Kingdom.
My Lords, I congratulate my noble friend Lady Hayman of Ullock and the noble Lord, Lord Sarfraz, on their maiden speeches of excellent quality. It is really good to have two younger Members join us. I must also congratulate the Government on doing so much to bring about harmony. They have managed to unite so many speakers in this Chamber and all but one of the parties in the Scottish Parliament, to name just two groups.
One of the purposes of this Bill is to enact the political ideology of the ruling faction of the Conservative Party, which demands that unfettered access of business across the UK should be able to overrule any democratically decided public policy goals. BEIS’s own impact assessment makes it clear that market access principles will reduce the ability to pursue targeted social and environmental policy objectives. We were told that Brexit would result in the return of powers to the devolved Administrations, but instead significant powers have been retained by Westminster. This Bill goes even further, as it will take away existing powers.
The noble Lord, Lord Callanan, as I understood him, said that industry subsidies had never been devolved, but Part 7 of the Bill amends Schedule 5 of the Scotland Act 1998 to eliminate state aid from the devolved powers that have rested with the Scottish Parliament for over 20 years. This happened without negotiation and with only the most cursory consultation.
The so-called level playing field is far from fair. How can it be when the players on the field are of massively different size and strength? It would be the equivalent of a football match between Chelsea and Partick Thistle. The big firms in the large countries flourish; small firms in small countries struggle. The Bill does not establish independent arbitration or dispute resolution. Once again, the UK Government will act as both participant and final arbiter and will, as usual, find in their own favour.
This legislation confirms what many of us already know: the current system of joint working between the UK Government and devolved Administrations is not fit for purpose. It does nothing to guarantee high regulatory standards. Instead, it creates incentives to lower standards. It prioritises the removal of potential barriers to trade at the expense of other public policy goals, such as health or the environment, regardless of the democratic decisions of the electorate in the devolved Administrations.
Andrew Bowie, Conservative MP for West Aberdeenshire and Kincardine, gave a stark warning in a recent newspaper article. He said,
“this Internal Market Bill, is just the start. The UK Government is back in Scotland. Get used to it.”
If ever a wedge would serve to divide the United Kingdom, this is it. We cannot in all conscience allow this dreadful legislation to be rushed through Parliament. We must ask the Government to think again.
My Lords, my first duty is to congratulate the noble Lord, Lord Sarfraz, and the noble Baroness, Lady Hayman, on two excellent maiden speeches. It is not always like this, by the way. In his speech today, the most reverend Primate the Archbishop of Canterbury made it clear that we are an unelected second Chamber with a mainly advisory and revisory role, but along with those responsibilities is another power, rarely used but very important.
In 2006, along with my noble friend Lord Tyler, I sat on a Joint Committee of both Houses set up to examine the conventions that govern the relations between both Houses, and between Parliament and Government. The report and recommendations of that committee chaired by the noble Lord, Lord Cunningham, were adopted by overwhelming votes of both Houses and stand as the basic rules of the conventions between them—not Salisbury/Addison, but the Cunningham conventions. Paragraph 281 of that report said about the powers of the House of Lords:
“Nothing in these recommendations would alter the … right of the House … in exceptional circumstances, to vote against the Second Reading or passing of any Bill”.
It is that right to say no that stops this House being simply a debating society. In the 110 years since the first major reform of this House, its most passionate defenders have argued that the Lords was the safety catch to prevent an abuse of power by a temporary majority in the other place. A constant in all our deliberations has been the special responsibility of this House to uphold the rule of law.
Over the next two days we are considering a Bill on which a Minister of the Crown in the other place admitted a proposed breach of the UK’s international obligations, and where the Government’s senior law officer in this House, the noble and learned Lord, Lord Keen, has resigned rather than be at the Dispatch Box today to try to defend it. When all five living ex-Prime Ministers express concerns about the Bill; when the joint briefing on it from the Law Society and the Bar Council calls for the removal of the offending clauses; when the Bingham Centre for the Rule of Law says that these clauses are in fundamental opposition to the rule of law and damage our standing internationally; and when our own Select Committee on the Constitution calls in aid the late Lord Bingham and states:
“We agree with Lord Bingham that respect for the rule of law requires respect for international law”,
one is bound to ask whether this House could ever have before it legislation which better fits the term “exceptional circumstances” than that before us today.
I will vote for the amendment tabled by the noble and learned Lord, Lord Judge, and it will undoubtedly be carried tomorrow. It does not, however, use the power of this House to remove the offending clauses—Clauses 44, 45 and 47—from the Bill. In that respect, it will allow us to go home feeling good but without having changed the mischief in the Bill.
I am clear that we should refuse this Bill a Second Reading, but am told by my more herbivorous colleagues that the Bill should go to Committee. I hope that during its passage through Committee and Report we will see an amendment to remove the offending clauses, and that, however many times it is brought back, this House will say no. If this is not an “exceptional circumstance” as set out in the 2006 report, I fail to see when this House will ever summon up the courage to use that power. Those who have a contempt for our parliamentary democracy and the rule of law will be emboldened by our failure, and this House will be diminished in the process.
My Lords, I too welcome the noble Lord, Lord Sarfraz, whom I have had the pleasure of meeting already, and the noble Baroness, Lady Hayman of Ullock. I hope to work with her on the environment and animal welfare; that would be fantastic.
My noble friend Lady Bennett cannot be here this evening. She would like me to explain that we are dividing this Bill between us and she will speak on the internal and devolution issues. She abhors the destruction by this Bill of the rights of democratic devolution that have been embraced and exercised by the people of Scotland, Wales and Northern Ireland. Scotland has long had a distinct education system with higher qualification standards for teachers. The Senedd too has plans for better control of single-use plastics than we have managed here in England.
I, therefore, will focus on international and rule of law issues in the Bill. First, I congratulate the Constitution Committee on its wonderful report on this Bill. I read it through and laughed with pleasure. I thank the committee for that. This debate has been extremely interesting because I did not think that anyone would have the audacity to defend this Bill, apart from the Minister. The Constitution Committee expressed the problem in relation to the law very well when it said:
“Society cannot afford to take this principle for granted or acquiesce in its violation. The rule of law is essential to an open and democratic society and the institutions which embody and protect it. Any Government that seeks to secure widespread compliance with the law must itself adhere to it”.
It is indicative that there are two amendments. One of them is from the Convenor of the Cross Benches, who is a former Lord Chief Justice of England and Wales, and the other is from a Peer who was a Conservative MP for 40 years. These are hardly rebels of the usual kind. The Government have some cheek to introduce the Bill now, because it is less than a year since they campaigned on Boris’s deal as their main election gambit. This House passed that deal in recognition of the fact that the Government had won the election and it was a quasi-referendum on the deal itself. Now the Government come to Parliament to try to unpick key provisions of the deal that they themselves negotiated.
It is too easy to get bogged down in seeing this as the narrow political issue around Brexit and Boris’s deal; it is much deeper than that. I say to those few noble Lords who have talked about remoaners that I voted for Brexit yet I am deeply unhappy with the Bill. The Government are trying to use the principle of parliamentary sovereignty to justify this course of action. That is wrong. A classic example of parliamentary sovereignty is that nothing stops Parliament from passing a law to ban Frenchmen from smoking in the streets of Paris, but it would have no effect. Parliament has the power to pass legislation that violates international laws and agreements, but that does not mean that it is justified in doing so. There is, therefore, scope for your Lordships’ House to amend the Bill to remove the offending provisions. If, however, this Bill cannot be sufficiently amended, our role as guardians of the constitution will require us to reject the Bill in its entirety. I will of course support the amendment.
My Lords, I join in the congratulations to the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Sarfraz on their maiden speeches, which I much enjoyed. I hope they enjoy this House as much as I have. I also hope they listened to my noble friend Lord Cavendish of Furness, who gave a slight word of warning that we have lost many of our friends in the other place, and we have not made any new ones, so our future is not quite as straightforward as we might all hope.
I want to talk about the extremely shabby way in which my noble and learned friend Lord Keen of Elie was treated by this House and by others in the Government. He was a very fine lawyer, and probably one of the best Advocates-General for Scotland that we have ever seen. Those are not my words; they were the words of the noble and learned Lord, Lord Wallace of Tankerness, earlier today. We have lost an extremely able man, and the contributions of rather lesser men in your Lordships’ House have contributed to him being removed from office. I do not think that that has done any great favours to our House, or to Scotland.
In previous Administrations in which I served, in a very junior capacity, we always had problems of how you interpret legal situations. A tremendous onus is put on our law officers to decide whether things are legal or illegal. The noble and learned Lord, Lord Morris of Aberavon, made reference to this, with respect to his time as Attorney-General under a Labour Government.
My noble and learned friend Lord Keen, on 15 September, made it absolutely clear that he thought the Internal Market Bill, which we are now considering, was within our obligations under the withdrawal agreement and was legal. A number of noble Lords have chosen during this debate to try to obscure that fact and say that somehow my noble and learned friend Lord Keen was conflicted. He was not. He said on that occasion that
“the EU has materially breached its treaty obligations and … we find that it may have acted in such a way as to fundamentally alter our obligations under the treaties.”—[Official Report, 15/9/20; col. 1131.]
So he was quite unequivocal on the fact that the Government were acting completely legally over this, and he was the law officer.
In my opinion, what he was referring to—these are my words—was the fact that the EU had decided to say that the border in the Irish Sea should remain even if we left the EU with no deal. That, of course, would have undermined completely the single market of the United Kingdom and was totally unacceptable to this country. So it seems quite straightforward that my noble and learned friend Lord Keen considered the actions of the Government to be legal.
Therefore, we have to ask what on earth my right honourable friend the Secretary of State for Northern Ireland was doing when he said that in some way this was a minor infringement or a technical matter that was only slightly illegal. I do not think that things can be slightly illegal—they are either legal or illegal—and I do not really know what Brandon Lewis was doing. He was actually called to the Bar himself in his youth. Why did he not question what he was doing by getting up and saying that this was only slightly illegal? That is rather like the curate’s egg—excellent in parts—or a woman saying that she is only half-pregnant.
At the end of the day, the advice that should have been taken by this Government was from its law officers. There may be many noble Lords in your Lordships’ House who do not agree with the judgment of my noble and learned friend Lord Keen, but he said that this was legal, I believe it to be legal, and for that reason I shall be voting against the amendment moved by the noble and learned Lord, Lord Judge, and supporting the Bill.
Let me join with others in welcoming new Members to this House. I hope that they will have as happy and fulfilling a time as I have had.
I wanted to express my respect and admiration for the noble and learned Lord, Lord Judge, and other noble Lords who have spoken up for the rule of law and our obligations under international law.
We cannot hear you. Can somebody please try to change the sound for you, and we will come back to you?
In view of the difficulties experienced by the noble Baroness, Lady Kennedy, we will move on to the noble Lord, Lord Lisvane.
There is so much wrong with this Bill that it is hard to know where to start—apart from, of course, warmly congratulating and welcoming today’s maiden speakers, the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz.
I will make three points. First, on the use—or, I should say, abuse—of delegated powers, the Delegated Powers Committee has done its usual excellent job. It notes that this Bill contains 11 delegated powers and describes some as “extraordinary” and others as “unprecedented”. There are seven Henry VIII powers, allowing Ministers simply to rewrite primary legislation, with a much lower level of parliamentary scrutiny and public exposure. Overall, the Bill exemplifies the decline in the legislative process that I have observed for nearly half a century. Now it is, I fear, a disaster area, which the promised Constitution, Democracy and Rights Commission should examine as a high priority—although I have little hope that it will do so, or will be allowed to do so.
Secondly, on the Bill’s effect on the devolution settlement, it has successfully united three of the constituent parts of the—presently—United Kingdom in a chorus of execration at what they see as an attempt to undermine the devolution settlements and change the nature and scope of reserved powers. Noble Lords are expressing strong views on this aspect, but I simply draw your Lordships’ attention to the Act of Union Bill that I introduced towards the end of the last Parliament, in which the Constitution Reform Group chaired by Lord Salisbury seeks a more effective and equitable settlement between the constituent parts of the United Kingdom. A moment ago, I described it as the “presently” United Kingdom. I do not think that history will deal kindly with an Administration who contrive to take us out of not one union but two.
I conclude with the rule of law issues. Yes, Parliament can legislate in the way proposed—of course it can—but it should not and, I suggest, must not. The rule of law is not something just for lawyers and academics; it is for us all. As my noble and gallant friend Lord Stirrup said, if I break the Covid-19 restrictions, will the Government come to my aid when I say, “Yes, I was breaking the law, but only in a specific and limited way”? The attempt to present the law-breaking powers in the Bill as more acceptable by making them subject to approval by the House of Commons is naive. It is as though I were to say to your Lordships, “I have a revolver—but don’t worry, it’s empty. I’ve given the ammunition to a friend of mine. But when I ask, he’ll give it back and I’ll put the rounds into the weapon.” The answer is, of course, that I should not have the revolver in the first place.
I shall certainly vote for my noble and learned friend Lord Judge’s amendment, and when the Bill goes back to the Commons it should do so without at least Part 5. What happens then? I agree with my noble friend Lord Butler that this is an issue on which your Lordships should be prepared for a bumpy ride. It would not be possible to use the Parliament Acts in the time available, so the Government would have to rethink their approach.
Please let us have no chuntering about the Salisbury/Addison convention. In 2006, the Joint Committee on Conventions of the UK Parliament acknowledged the change in the nature of the convention over time—hardly surprising as it arose from very specific circumstances 75 years ago—but it still linked the convention only to manifesto commitments, with a reserve responsibility of this House in exceptional circumstances, as the noble Lord, Lord McNally, reminded us. No one could seriously suggest that departing from the rule of law has received electoral approval. I suggest that your Lordships should not be deterred by any assertions of unconstitutionality. If there is unconstitutionality anywhere, it is in this Bill.
My Lords, I believe we can now hear from the noble Baroness, Lady Kennedy of The Shaws.
I am very sorry if people could not hear me. I hope noble Lords can hear me now.
I start by welcoming our new Members to the House. I also add my respect and admiration for the noble and learned Lord, Lord Judge, and all noble Lords who have spoken in support of the rule of law. I would have thought that all of us would be committed to it.
Some of our colleagues have mentioned our role as a revising and scrutinising House, but our role goes beyond that. Those of us who have the fortune to be in this House are stewards of the constitution. We are also the protectors of the rule of law. We are the people who guard rights and preserve for future generations the things that really sustain this society. We are also the people who are supposed to look at the long term when government may be pressed into or encouraged to think short term.
I urge this House to support the amendment from the noble and learned Lord, Lord Judge. I am a director of the International Bar Association as well as a practitioner at the English Bar, and I recently hosted two webinars on this very Bill. Thousands of lawyers attended not just from the United Kingdom but from around the world. One of the webinars was on the impact on international law, and another on the effects here in the United Kingdom.
The legal profession in this country is united in its opposition to the Bill—the Bar Council, the Law Society, the lawyers and judges. Let me tell you, it is a very small club indeed who think that this Bill does not contravene the rule of law. It seems to me to be following a regrettable trend of undermining law more generally. We are seeing attacks on lawyers and the judiciary, and an effort to undermine the judiciary and its discretion. We are also seeing attacks on judicial review and other aspects of law.
When the webinars took place, international lawyers, much to my surprise, engaged from all over the world, shocked at the fact that Britain was doing this. They said, “It’s to you that we look when we are having difficulties with our own Governments. It’s to you in the United Kingdom that we look as the standard bearer for the rule of law.” One of our distinguished commercial judges, recently retired, said that the City’s position as a world-leading financial services centre is underpinned by our reputation in law. That is not something to play around with, even if you are doing it for a pragmatic reason rather than out of principle. As one or two other noble Lords have said, this is a matter of principle, and I believe that principle at times has to take precedence over party loyalty.
In one of the webinars, the noble and learned Lord, Lord Neuberger, reminded us that we are asking a lot of our citizens in the United Kingdom at this time because of the pandemic. We are asking them to abide by certain rules that constrict their lives. We are asking them to obey the law. That our Government should be dismissive of law and be prepared to break the law at this time sends a very bad message. The Government should listen and remove the offending clauses and the whole of Part 5. I am afraid that to disregard the law is really a very poor prospect for this country.
My Lords, my perspectives are shaped by my Northern Ireland roots and the implications that I draw from Part 5 of this dangerous Bill.
The inevitable consequence of Brexit was a series of difficulties with the Belfast Good Friday agreement, which had brought to an end not only 30 years of terrorism but a disturbed historical relationship with Ireland that went back many centuries. Those of us who spent many years of our lives negotiating and implementing that agreement had assumed that if we could find a new future for the people of our islands, we could find a way of maintaining our relationships with the rest of the European Union. However, when it became apparent that Brexit was the will of a majority of people in England and Wales, the challenge was to negotiate arrangements that would maintain the Good Friday agreement while taking the UK out of the European Union and at the same time hold together the constitutional union of England, Scotland, Wales and Northern Ireland.
Since Northern Ireland’s relationship with the rest of the UK and Ireland was already a singular one, it was clear that there would be significant challenges, especially if the British Government chose to leave the customs union and the single market. This was widely discussed in Northern Ireland during the referendum campaign and was probably the chief reason why the Ulster Unionist Party became pro-remain.
When Mr Johnson became Prime Minister, he and his party, including the members of the European Research Group, abandoned their Democratic Unionist allies and, last October, signed up for the revised protocol for Northern Ireland that Mr Johnson had negotiated. The DUP was betrayed, but Mr Johnson went on to fight the election on what he called
“a good arrangement, reconciling the special circumstances in Northern Ireland with the minimum possible bureaucratic consequences at a few points of arrival in Northern Ireland.”
The Conservative Party won the December 2019 general election, its manifesto based on the “great new deal” that the Prime Minister said he had done. Now, in presenting this Bill for the approval of your Lordships’ House, he has abandoned the commitment to the British people on which he was elected and seeks to break not only his manifesto commitment but international law. We should not be surprised; the Prime Minister has been entirely consistent—he has never felt the need to be bound by any commitments that he makes to people, nor by any rules or law. He was even prepared to mislead Her Majesty the Queen into approving a prorogation of Parliament, advice ruled to be unlawful.
Now he wants the rest of us in Parliament to collude with him in a flagrant breach of international law. That creates a constitutional crisis. While this House should generally restrict itself to giving advice to the Government of the day, I believe it has a responsibility of constitutional guardianship that is now being called into play by the Government’s premeditated breach of international law. Even the tabling of the Bill is a breach.
It is possible in the short term to toss facts, truth and the law to the side, but as this Government are beginning to discover, truth, facts, the law and broken relationships have a way of coming back to bite. Bluster, hyperbole and waving one’s arms around do not impress the Covid-19 virus; nor, increasingly, do they convince ordinary people in this country.
When one manifestly does the wrong thing—not making a mistake, but doing what is morally wrong and unjustifiable—history will find you out. Members of your Lordships’ House who support this Government’s disregard for the law should reflect on how past leaders have been hauled before the bar of history and their reputations irreparably shredded. Today’s remarkable debate in your Lordships’ House may even be the beginning of the end of this Government, for this is not a mistake or a misjudgment but a consistent pattern of behaviour that must be stopped before it destroys our United Kingdom.
My Lords, I congratulate the noble Baroness, Lady Hayman, and the noble Lord, Lord Sarfraz, on their maiden speeches and for their extreme skill in staying uncontroversial on this most controversial of topics.
I find myself in a curious position today, wanting to defend a withdrawal agreement, parts of which I strongly disagree with. Those of your Lordships who know my background will know that I preferred a different withdrawal agreement, negotiated by the former Prime Minister. The current Prime Minister, and many members of the