United Kingdom Internal Market Bill

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

Committee (5th Day)

Relevant documents: 14th Report from the European Union Select Committee, 24th and 26th Reports from the Delegated Powers Committee, 17th Report from the Constitution Committee and 8th Report from the Joint Committee on Human Rights

17:07

[The Lord Speaker (Lord Fowler)]

We now come to the group beginning with the Question that Clause 42 stand part of the Bill. I remind noble Lords that any participant wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear during the debate.

Clause 42: Northern Ireland’s place in the UK internal market and customs territory

Debate on whether Clause 42 should stand part of the Bill.

[Lord Judge (CB) [V]]

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

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

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

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

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

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

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

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

“otherwise dealing with matters arising out of, or related to”

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

17:15

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

“in relation to any international obligation or arrangement if”

it

“has ceased to have effect by virtue of regulations made under this Act”—

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

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

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

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

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

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

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

[Lord Eames (CB) [V]]

My Lords, I am privileged to follow the noble and learned Lord, Lord Judge, and I find myself in support of his comments on the wider ambit of the Bill. I share his reservations coming, as I do, from one of the devolved parts of the United Kingdom. I speak to the amendment that is in my name and that of the most reverend Primate the Archbishop of Canterbury, the noble Baroness, Lady Ritchie of Downpatrick, and the noble Lord, Lord Hain. I thank each of them for their support.

This amendment has two purposes, and I stress that in light of the remarks by the noble and learned Lord, Lord Judge. I aim first to provide a degree of protection for a devolved nation, Northern Ireland, should the Bill progress in its present form. Secondly, I am to allow a statement on the record on the vulnerable nature of the peace process in Northern Ireland in the face of the present nature of the Bill. Those two phrases justify my approach: its present form and the present nature of the Bill.

This amendment places a duty on the Secretary of State to take account of the effects of any exercise of authority conveyed by the Bill on the peace process and progress of reconciliation in Northern Ireland. As the Bill stands, there is potential for unintended consequence on the sensitivities of community peace and harmony in Northern Ireland. Brexit is already asking searching questions of that sensitivity. Issues of internal trade arrangements—north-south and east-west in the United Kingdom—are raising questions that have the potential to threaten the hard-earned progress of community understanding and stability in Northern Ireland, but it is still a tender plant.

We have heard frequent reference in your Lordships’ Chamber to the Good Friday or Belfast agreement on Northern Ireland. That is how it should be. That agreement was a turning point in the troubled history of Northern Ireland. It was an episode of immense significance, but it was an episode. The peace process is not just one episode; it is an ongoing daily process, involving ordinary men and women in their lives, how they do business with and relate to each other and, above all else, how they address their fears. It depends on building bridges across traditional divisions. At times, it lurches from mistakes to just temporary success. Constantly lurking in the background is the threat of violence and terrorism. In the Bill is the potential to threaten the stability of Northern Ireland. That threat, as much as it lies in what the Bill questions of the devolved settlement, raises issues of the Northern Ireland peace process. There are issues for Scotland and Wales which, although not as sensitive as those on reconciliation in Northern Ireland, are equally about community stability.

I ask your Lordships to also consider my amendment in the wider context of the Bill. The decisions implemented by the Bill will have a profound effect on the future of the countries of the United Kingdom and the relationship between them, for the Bill represents a profound shift in how trading relationships within the UK will be regulated and governed in the years ahead. This will not be a return to the trade structure that was in place before the UK entered the EU; rather, it is the construction of a system to replace one that had emerged through careful negotiation over decades.

There is in the Bill a weakening of the principles and effect of devolved policy-making, a constitutional significance already noted by the Scottish Parliament and Welsh Senedd. If the Bill reaches the statute book without the consent and understanding of the devolved legislatures, which would occur if safeguards such as those in my amendment are ignored, then trust and good will among the devolved nations will be eroded. But there has been frequent reference in our debates to how, as it stands, the Bill offers the opportunity for a government Minister to break international law.

My amendment is worded with that opportunity in mind. Those of us who feel a moral responsibility to protect and encourage the process in Northern Ireland are particularly alarmed by that possibility. In particular, we feel that the Good Friday agreement, an international agreement that cements and underpins peace and stability within and between the United Kingdom and Ireland, is under threat. A recent article in the Financial Times by the current Anglican primates of the United Kingdom included these words:

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


I speak to noble Lords, through this amendment, with deep personal feeling. My professional life was lived out during the days and nights of the Troubles. I have seen suffering and hurt. I have seen the highest that human nature can reach and the lowest to which it can descend. I have seen suffering. I have presided over funerals and seen the tears of young people. I have no alternative but, with moral justification, to defend the peace process and what is being slowly but surely achieved in my native land. I therefore beg leave to propose this amendment.

[Lord Howard of Lympne (Con)]

My Lords, it is a pleasure and an honour to follow the noble and most reverend Lord, Lord Eames. His moving words carry great weight and merit serious consideration by the Government.

I hope I may be forgiven for beginning my remarks with a brief tribute to Lord Sacks, whose death was announced over the weekend. His profound wisdom will be sorely missed, both inside and outside your Lordships’ House.

17:30

I shall resist the temptation to repeat the speech I made at Second Reading, though it is quite a seductive temptation because, to use a much-maligned phrase, since then nothing has changed. Nothing has changed. It is still the case that the definitive government statement on this part of the Bill is that made by the Secretary of State for Northern Ireland in another place, when he admitted that its provisions breach international law. Perhaps “admitted” is the wrong word—it was not so much an admission as an assertion. Since then, as far as I am aware, no government Minister has sought to resile from his words.

Instead, Ministers, both in your Lordships’ House and elsewhere, have sought to make the case that circumstances make it expedient to break international law. But is that not what lawbreakers always say? Is that not the excuse of lawbreakers everywhere? What sort of a precedent are the Government setting when they admit that position? How can we reproach other countries—Russia, China, Iran—if their behaviour becomes reprehensible, when we ourselves have such scant regard for the treaties we sign up to and we set such a lamentable example?

Every clause in Part 5 of the Bill seeks to interpret, if one is being kind, or to displace, if one is being accurate, the provisions of the Northern Ireland protocol of the withdrawal agreement—an agreement, I need hardly remind your Lordships, which this Government signed barely a year ago. I respectfully agree with the analysis of each of those clauses made by the noble and learned Lord, Lord Judge, and I do not seek to repeat his analysis.

The Government say this is all justified because the European Union has been acting in bad faith, though no evidence to support that assertion has been produced. But the agreement, which the Government signed barely a year ago, contains its own procedures for resolving any disputes which may arise between the parties—between the UK and the EU. Article 168 of the agreement, which the Government signed up to barely a year ago, provides that those procedures are to be the only way in which such disputes between the parties are to be resolved.

Some of your Lordships may have heard the Environment Secretary on the “Today” programme this morning. He said that the provisions in the Bill were there in case there is disagreement in the joint committee—but the withdrawal agreement specifies what is to happen if there is disagreement in the joint committee. If there is disagreement in the joint committee, arbitration procedures are set out in the Bill specifically to resolve those disputes, and those arbitration procedures can be expedited. That is what the Government signed up to, barely a year ago.

There have been suggestions that opposition to this part of the Bill is in some way the last charge of the remainers. That suggestion has a very dangerous implication for those who advance it. It implies that only those who voted for us to remain in the European Union care about the rule of law, the importance of keeping one’s word or the sanctity of international treaties. Fortunately, I am in a position that enables me confidently to contradict that implication. I voted and campaigned for Brexit, and I do not for one moment regret or resile from that vote. But I want the independent sovereign state that I voted for to be a country which holds its head up high in the world, keeps its word, upholds the rule of law and honours its treaty obligations. I want it to be an independent country which truly is a beacon unto the nations.

I am dismayed that the Government—who I have supported for so long and have very rarely disagreed with and rebelled against—have chosen, as one of the first assertions of their newly won sovereignty, to break their word, to break international law and to renege on a treaty they signed barely a year ago. I hope your Lordships will at least give the Government the opportunity to think again by removing Part 5 from the Bill.

[Lord Newby (LD)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Howard, and to agree with him—not inevitable, in my case. As he said, this has absolutely nothing to do with whether you think being a member of the European Union, or not, is a good or bad thing.

This afternoon, your Lordships are being invited by the signatories of the clause stand part Motion, including myself, to strike down the whole of Part 5 of the Bill. Although this is inevitably a contentious matter, there are a number of points on which I think there is no serious disagreement. First, there is no serious disagreement that the Bill as drafted provides for the UK to break international law. Ministers have admitted it, and legal opinion—as voiced so eloquently by the noble and learned Lord, Lord Judge, a moment ago—is firmly of that view. Secondly, there is no question but that your Lordships’ House is completely within its constitutional right to delete Part 5 if it thinks fit. If we cannot take a view on a matter of deliberate law-breaking by the Government, we may as well pack up our bags now.

The key remaining question, which we have to decide today before deciding how to vote, is this: is the breach of the law contained in the Bill justified by the circumstances? It is not impossible to think of theoretical scenarios in which, as a country, we might decide to repudiate an international treaty. But is that the case here? In making the case for the Bill, the noble Lord, Lord True, at Second Reading and the Environment Secretary this morning in the media, made two linked, but central, arguments: first, that the clauses are necessary because Northern Ireland must retain unfettered access to the rest of the UK internal market; and secondly, that there was, in the words of the noble Lord, Lord True,

“a balance to be struck”

between maintaining the

“rule of law … and the integrity of this union”.—[Official Report, 20/10/20; col. 1430.]

To this George Eustice added this morning that Part 5 was necessary for “protecting peace and stability” in Northern Ireland. Both arguments are fatally flawed.

First, the concept of unfettered access under the terms of the withdrawal agreement, whether or not there is a deal with the EU, is a complete mirage. Once the Government accepted that there could be no customs border on the island of Ireland, there had to be one down the Irish Sea. Such a border fetters access, even if there is free trade across it, because there have to be checks, in respect of VAT and excise duty, to prevent smuggling and fraud, and there have to be sanitary and phytosanitary checks as well. These checks cost traders time and money, and for many they can make the difference between trading at a profit and trading at a loss, and therefore whether they trade with Great Britain at all.

The Government accept the need for these checks—these fetters. Clause 43(2) of this Bill provides for them, even if it invokes the other illegal provisions of the Bill for VAT, customs, and reasons of biosecurity. The National Audit Office spelled out the problem last week in its report The UK Border: Preparedness for the End of the Transition Period, where it stated that implementing the Northern Ireland Protocol was a “very high risk” because of, among other things,

“the scale of the changes required … and the complexity of the arrangements.”

In other words, the problem of the fetters.

Earlier in the year, the Government made £355 million available to traders in Northern Ireland to mitigate their costs in continuing to trade with Great Britain. Now £355 million is a tidy sum—not to eliminate the fetters but to try to ensure that they chafe less keenly. So let us not hear any more talk of unfettered trade—there will be none.

The Government’s other justification for Part 5 is that if it were not in the Bill, the integrity of the union would be threatened, and peace and security in Northern Ireland would be put at risk. If this were the case, the Government might have a respectable argument. But, as we have heard in many speeches at Second Reading and in Committee, and in the very eloquent comments of the noble and right reverend Lord, Lord Eames, it is the Bill that threatens peace, prosperity, security and stability, not the other way around.

We have heard from many speakers how Part 5, by breaching the Northern Ireland protocol and reimposing elements of a hard border in Northern Ireland, almost inevitably puts some of the key principles of the Northern Ireland agreement under threat—a view, incidentally, that appears to be shared by President-elect Biden. If these fears were realised, does anybody seriously believe that they would not strengthen demands for a border poll in Ireland? And does anybody seriously argue that Part 5 could in any circumstances strengthen the union with Scotland, where the Government and public opinion are as appalled as most Members of your Lordships’ House at the prospect of being part of a country that is willing to flout international law?

So, far from supporting the integrity of the union, Part 5 weakens it, and in doing so fatally undermines the Government’s argument in favour of these illegal clauses. They do not provide unfettered trade; they do not strengthen the union. They were a political manoeuvre by the UK Government to try to put pressure on the EU. They failed to do this, they reduced the UK’s standing as an upholder of international law for no substantive reason whatever, and they simply must be removed.

[The Archbishop of Canterbury [V]]

My Lords, I will speak to Amendment 161, to which I have added my name, alongside the noble and right reverend Lord, Lord Eames, the noble Lord, Lord Hain, and the noble Baroness, Lady Ritchie of Downpatrick. The previous speeches have all been both moving and deeply eloquent, and I shall therefore be very brief.

As the noble and right reverend Lord, Lord Eames, so powerfully explained, the purpose of our amendment is simply to put on the record a concern that this Bill in its current form fails to take into account the sensitivities and complexities of Northern Ireland, and could have unintended and serious consequences for peace and reconciliation. The noble and right reverend Lord spent 20 years as Archbishop of Armagh, between 1986 and 2006, and the force of his words was most remarkable. He has experience of everything from the funerals in small churchyards of those caught up in the Troubles through to negotiations behind the scenes for the Belfast agreement. He speaks with the integrity and authority that those 20 years have earned him, and I trust that the House will listen carefully.

One thing must remain certain in a time of turmoil and uncertainty, and it is the inestimable value of peace. The process of peace and reconciliation in Northern Ireland did not end with the Belfast agreement, as the noble and right reverend Lord, Lord Eames, said. It remains an ongoing process that requires work, and awareness from leaders that almost every decision taken and word spoken in relation to Northern Ireland will have an impact. This Bill must show that it is sensitive to these circumstances.

I will conclude by saying something about the amendments in the names of the noble and learned Lord, Lord Judge, and others, including my right reverend friend the Bishop of Leeds. I will not add much, as the words of the noble Lord, Lord Howard of Lympne, were absolutely convincing and extremely clear. I also associate myself with his important tribute to Lord Sacks, whom we will miss terribly in this House.

17:45

At Second Reading, I stated that the primary purpose of this House was to amend and improve legislation, not to derail it. But I was wrong in saying that. There is an even more primary function, which the noble Lord, Lord Howard, set out very clearly. It is to defend the rule of law and to protect the balances of power and peace in our union. The amendments put forward by the noble and learned Lord, Lord Judge, and the wish that this part is excised from the Bill, will therefore have my unqualified support.

I hope that the Government will reflect on the strength of feeling, depth of experience, and wisdom of expertise shown in the debate on these clauses, and will push not for their reinstatement but for their replacement with others that better guarantee that the rule of law, peace, and the balances of power are upheld within our United Kingdom. As the noble Lord, Lord Howard, said, this is not a return to old arguments about Brexit. That debate is long gone and long finished. Like many who were on the other side from him, I now fully accept that the decision has been taken democratically and am entirely supportive of pursuing it. This is about the fundamental values we stand and live by as a nation, now and in the years to come.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a privilege to follow the most reverend Primate the Archbishop of Canterbury. I remind your Lordships’ House that the most reverend Primate and I walked through Downpatrick, along with many others, on St Patrick’s Day some five years ago, as a symbol of reconciliation, because the national saint of Ireland is the very embodiment of partnership, working together and reconciliation—those very issues the noble and right reverend Lord, Lord Eames, has already referred to.

Part 5 is the most egregious part of this Bill, in that it jettisons Article 5 of the EU withdrawal agreement and thus breaks international law, as the Secretary of State for Northern Ireland freely admitted in the other place. The Northern Ireland protocol, which was given legislative effect in the EU withdrawal Bill back in February of this year, was based on an international treaty between the UK and the EU, specifically directed at preventing a hard border of the island of Ireland—a hard border between the EU and the UK—and thus safeguarding the Good Friday agreement.

Yesterday the Foreign Secretary, Dominic Raab, was on “The Andrew Marr Show” where he totally misrepresented the situation, levelling blame at the EU for endangering the Good Friday agreement. I remind your Lordships that it was the EU that sought, and is seeking, to protect the Belfast agreement through the Northern Ireland protocol, and it is the Government who are seeking to destroy it through Part 5 of the Internal Market Bill. I just wish that Dominic Raab would correct the situation. Perhaps the Minister will remind him to do just that, because it is important that we move away from this combative rhetoric to find solutions.

I support many of the amendments in this group, and I am a signatory to Amendments 161, ably spoken to by the noble and right reverend Lord, Lord Eames, about the need for reconciliation, Amendment 162, in my name and those of the noble Lords, Lord Hain and Lord Empey, and Amendment 163 in the names of the noble Lord, Lord Hain and the noble Baronesses, Lady Altmann and Lady Suttie. The first two deal specifically with the need to underscore reconciliation in Northern Ireland and, in the case of Amendment 162, to make provision to ensure that goods coming from Northern Ireland into the GB market are not hindered or discriminate against. Thirdly, Amendment 163 would extend the Trader Support Service, which is currently only to run for two years, indefinitely to protect Northern Ireland exports.

Simply, I do not support borders on the island of Ireland or in the Irish Sea, and I share many of the concerns of my unionist colleagues and want minimal friction on goods travelling from Britain to Northern Ireland. But I support the aims of those noble Lords, ably put forward this evening by the noble and learned Lord, Lord Judge, who seek to remove the offending clauses in Part 5 which deal with the Northern Ireland protocol on the basis that they break international law. In fact, the Northern Ireland protocol was, as I said earlier, established to protect the Good Friday agreement, prevent a hard border on the island of Ireland and assist with the process of reconciliation and north-south economic co-operation. That view was clearly articulated by the Anglican primates, who stated in their letter of some weeks ago to the Financial Times that the UK negotiated the Northern Ireland protocol with the EU

“to protect the 1998 Agreement in all its dimensions.”

To further cite those primates,

“One year on, in this bill, the UK government is not only preparing to break the protocol, but also to breach a fundamental tenet of the agreement: namely by limiting the incorporation of the European Convention on Human Rights in Northern Ireland law.”


The purpose of Amendment 161 is to ensure the protection of the principle of reconciliation, which is at the very core of the Good Friday agreement. Another contributory factor is the need to work on the healing process, which has been painfully slow.

As my former, late, party leader John Hume said after the signing of the Good Friday agreement in 1998, we have to move to solutions, we have to move to that healing process. That is very important. It was the very essence of what the noble and right reverend Lord, Lord Eames, was talking about. By fracturing the Good Friday agreement and the Northern Ireland protocol, we are deviating from that principle.

I humbly ask the Government to give due consideration to that and ask the Minister to ensure that these clauses are removed from the Bill, because I know that tonight, I will be voting with other noble Lords as per the speech of the noble and learned Lord, Lord Judge, to remove them because they are difficult, challenging and undermine the very principles of healing, reconciliation and partnership that we were able to achieve through the Belfast Good Friday agreement. If the Government and the Commons still insist on keeping this part of the Bill, we need to ensure that there are other protective measures: the very things that the noble and right reverend Lord, Lord Eames, referred to. Hence Amendments 161, 162 and 163, which I hope the Minister will consider accepting.

In the Brexit process and all of this, the Government managed to set the nationalist and unionist communities against each other and undermine relations with Dublin by leaving the possibility of a hard border on the island of Ireland on the table. Tonight, I am very happy to support the removal of these clauses and to support the amendments to which I have added my name.

[Lord Hain (Lab) [V]]

My Lords, I agree with everything that my noble friend Lady Ritchie said. The noble and learned Lord, Lord Judge, also spoke for me and, I suspect, virtually the whole House, as did other speakers who followed him.

I shall speak briefly to Amendment 162 and 163, because we know the Brexit realities will hit Northern Ireland first. The EU has been very clear that the protocol must be implemented in full come 1 January. The Trader Support Service, although welcome, will not become live until Monday 21 December, just before Christmas. The following Thursday is New Year’s Eve, after which Northern Ireland will be effectively operating in a different customs and regulatory zone from the rest of the UK. This means that the vital role of the Trader Support Service, the subject of Amendment 163, standing in my name and that of the noble Baronesses, Lady Ritchie, Lady Suttie and Lady Altmann, in directing businesses towards the necessary forms and procedures for moving goods from Great Britain into Northern Ireland, will not be operational until the very last minute. When the Trader Support Service is functioning, it will offer a vital service to keep Northern Ireland businesses integrally linked to the rest of the UK internal market. It is for this reason that Amendment 163 will establish the Trader Support Service more firmly in law as a continuing rather than time-limited commitment.

There is nothing of substance in the Bill that helps reduce frictions to trade that will come for goods crossing from Great Britain into Northern Ireland after 1 January, and Amendment 162 seeks to correct that. Fears about the consequences of retailers avoiding Northern Ireland or facing increasing costs in moving goods from Great Britain into Northern Ireland are real and pressing. In a letter from the Food and Drink Federation to Ministers George Eustice and Michael Gove published on 22 October, the risks are spelled out in stark terms. They say that many GB-based producers are planning to stop supplying the Northern Ireland market after 1 January 2021. Sainsbury’s made an announcement to that effect last week, but the federation added that this does not need to be the case. Solutions are possible and, indeed, many have been put forward by the business community in Northern Ireland itself, but these needs still to be agreed with the EU in the joint committee with the UK.

The Ireland/Northern Ireland protocol means that Northern Ireland is in a unique position vis-à-vis Britain and there is a strong likelihood that the more trade agreements the UK signs with partners around the world, the greater the differences will be between Northern Ireland and the rest of the UK internal market. Indeed, even though the UK Government are committed to seeing Northern Ireland as part of future free trade agreements, there are no firm guarantees that this will happen, or that the other country will agree to it.

The principle of non-discrimination in Amendment 162, also in the name of my noble friends Lady Ritchie and Lord Empey, seeks to ensure that no potential barriers will be added to the movement of goods from Northern Ireland to Great Britain over time. Because Northern Ireland goods will be produced in accordance with EU rules under the Ireland/Northern Ireland protocol, and on the basis of dynamic alignment, there is a risk—if not a likelihood—that divergence between Northern Ireland and Great Britain will grow over time. First, goods in Northern Ireland could be produced to higher standards as the EU increases standards in regulations covered by the protocol and thus the new standards automatically apply to Northern Ireland. Secondly, goods in Great Britain could be produced to a lower standard. Indeed, the Government have indicated that that might be the objective. Therefore, as Great Britain and Northern Ireland standards diverge, there will be increasing barriers to trade and increasing competitive disadvantage for Northern Ireland within the UK internal market.

This amendment would ensure that Northern Ireland goods will not be discriminated against in the UK internal market. Can the Minister therefore explain why on earth the Government would be opposed to that principle?

18:00

[Lord Empey (UUP) [V]]

My Lords, it is difficult to know where to start; there are so many things of major concern in the proposals in this section of the Bill. First, I support Amendment 162, which I signed, for the reasons that the noble Lord, Lord Hain, has just set out. But we need to step back a moment and see how and why it is that we are discussing such dramatic and momentous proposals in the first place. The answer lies in events a year ago. The amendments to the protocol that were produced by the Government have largely been accepted by the European Union, but the fact is that the withdrawal agreement that emerged from those proposals is such a bad deal.

I have heard so many people, including President-elect Biden and others, say that we must all protect the Belfast Good Friday agreement, and that is very true. However, of course, the agreement is balanced. Focus has been, almost exclusively, on preventing a land trade border on the island of Ireland. I do not want to see this, but, equally, I do not want a trade border in the Irish Sea between one part of the United Kingdom and the rest. That is what is actually being implemented as a result of the agreement that the Government signed a year ago, and that is completely contrary to the Belfast agreement, which makes it clear that the status of Northern Ireland cannot change without the consent of its people. If anybody thinks that our status is not changing as a result of what is happening, they are fooling themselves.

I got a Written Answer a short time ago from the noble Lord, Lord True, in which he made it clear, in response to my Question, that UK officials will implement EU law and seek to ensure that it is applied at Northern Ireland ports. The idea that nothing has changed or that the status of Northern Ireland is not changing is completely erroneous.

I want to make my point very clear about the Belfast Good Friday agreement: it is balanced, and a border in the Irish Sea is just as injurious to that agreement as a land trade border on the island would be. I hope that people accept that. I listened very carefully to the noble and right reverend Lord, Lord Eames, who has vast experience of dealing with the downstream consequences of our Troubles. There are very few people, if any, in Parliament who have any experience on that scale, so I think we have to listen very carefully to what he and others have had to say.

There are alternatives, which is what frustrates me: it was never necessary to do a lot of this. The reason why we are doing this, and why this Bill is before us, is the mess that was created a year ago. I believe very strongly that there are alternatives. As a country, we should legally prevent our territory being used to export unregulated goods to the European Union. We could indemnify the European Union if any of them eventually got through. We could set up cross-border bodies to establish a working relationship with the Irish Republic to ensure that the single market is not contaminated. There are a lot of things we can do.

Specifically, I understand the idea that the Government put forward of having a safety net. But the way to do that is not to announce that you will break international law when, in fact, the European Union accepted our proposals for an amendment to the protocol in the explanatory document of 2 October last year, which contained the provisions for a regulatory border and border inspection posts. It was the Government’s idea.

I think that they should prepare an emergency provisions Bill to be used in the event that the European Union demonstrated bad faith or the dispute resolution mechanisms within the agreement were set aside by the EU, preventing Northern Ireland from having proper access to goods and services from the rest of the United Kingdom. I believe that widespread parliamentary support could be built up to prevent such a thing happening in an emergency. Laws can be passed in this House and through our Parliament very quickly, as we know, specifically where they apply to Northern Ireland. They have been done many times before and can be done in 48 hours.

I believe there are alternatives not only to Part 5 of the Bill but to the withdrawal agreement as it currently stands. Going back to the genesis of this mess, which was on 2 October 2019, I say to colleagues that that document contained provisions for border inspection posts and application of the relevant EU rules as well as stating:

“regulatory checks can be implemented at the boundary of the zone”.

The zone here is the 27 EU member states and Northern Ireland. Any idea that this is something new or different is wrong: it was there from the very beginning in October last year, and I deeply regret that our colleagues in the Democratic Unionist Party supported that then, saying, quite clearly, that it was a

“serious and sensible way forward”.

Of course, two weeks down the line, they had to change their tune. Nevertheless, that was the green light for Dublin and the EU, and that advantage was pressed home.

If ever there was a case for the other place having a chance to look at this legislation again, this is it. I sincerely hope that the House of Commons will revisit this. If they talk to people, to some of us who were involved in negotiating the Belfast Good Friday agreement and to colleagues, they will find that none of us want to see Northern Ireland decoupled from the rest of the United Kingdom. I see this whole measure and agreement as a dagger pointed at the heart of the union. Other colleagues have mentioned what is happening in Scotland, and we see changes in Wales and even Jersey. I do not know whether we can get certainty about where the Isle of Wight stands on all of this, but the fact remains that the union is in serious trouble with the way we are handling things. However, there are alternative ways out that can maintain stability, do not break up the United Kingdom and do not set one section of the community in Northern Ireland against the other.

I have no doubt that it may well have been the case that some EU official did threaten to stop food travelling to Northern Ireland from Great Britain. Only a fool with no knowledge of history would dare to say anything that would prevent food getting to Ireland. It is such a stupid thing to say. I do not believe that the United Kingdom needs to turn itself inside out and break up its whole international standing to prevent such a thing happening. There are alternatives.

I do not believe that this Parliament or any party in it would stand by and allow one part of the United Kingdom to be, effectively, starved out because of regulations if the European Union was being particularly difficult. I think we can overcome all of that by consensus and can ensure that the Government are given the strength that they need in the negotiations. If somebody in the European Union did think, for one moment, that they could get away with such a thing, I would disabuse them of that thought. This is not the way ahead.

[Baroness Suttie (LD) [V]]

It is always a pleasure to follow the noble Lord, Lord Empey, who always speaks with such authority, experience and, as we heard this evening, force on these matters. I will speak in favour of Amendment 163, to which I have added my name, and against all clauses in Part 5 of the Bill. Amendment 163 is a cross-party amendment tabled by the noble Lord, Lord Hain, and the noble Baronesses, Lady Ritchie and Lady Altmann. It calls for the trader support service to be extended to become a long-term commitment for trade from Great Britain to Northern Ireland.

In response to a similar amendment during Committee on the Trade Bill on 13 October, the Minister, the noble Viscount, Lord Younger of Leckie, confirmed that the future of the trader support service will be reviewed after two years. Can the Minister confirm that, if after two years it is seen as a positive initiative for businesses in Northern Ireland, it will continue indefinitely?

I will concentrate the remainder of my brief remarks on the deletion of Part 5 of this Bill. The arguments are well rehearsed. We have heard them made very eloquently, particularly in the most thoughtful speech from the noble and learned Lord, Lord Judge, and the powerful speeches from the noble Lord, Lord Howard, and my noble friend Lord Newby. As other noble Lords have said, unless Part 5 is deleted, it risks diminishing our global reputation and jeopardising the substantial progress made on the island of Ireland since the 1998 Belfast/Good Friday agreement.

The Government sometimes give the impression that the protocol was somehow imposed on them, whereas earlier this year they were claiming it as their great success. As the noble Lord, Lord Empey, demonstrated clearly in his speech, the Northern Ireland protocol is not perfect, but it is the consequence of the Government’s insistence on a set of incompatible promises and on leaving both the customs union and the single market. For all its imperfections, the protocol is a carefully constructed compromise to try to maintain peace and stability on the island of Ireland.

The uncertainty which Part 5 of this Bill provokes has also—in my view, unforgivably—wasted scarce resources and valuable time. This is precious time when businesses could and should have been preparing for the end of the transition period in just over 50 days’ time.

Last week, the National Audit Office said in its report, The UK Border: Preparedness for the End of the Transition Period:

“It is very unlikely that all traders, industry and third parties will be ready for the end of the transition period … There is a risk that widespread disruption could ensue at a time when government and businesses continue to deal with the effects of Covid-19.”


If the arguments against Part 5 remain the same, the political context in which we now find ourselves has very substantially changed. As my noble friend Lord Newby said, President-elect Biden has made it very clear that he will not support any measures that would result in breaking commitments made in the Northern Ireland protocol or that would risk destabilising the Good Friday/Belfast agreement. Yet in the media this morning, the Government made it clear that they do not intend to change their mind on Part 5.

There is a time when sticking to a position looks like strength, and there is a time when it looks out of touch with political reality. I urge noble Lords to vote against all clauses in Part 5 and I call on the Government to think again.

[The Lord Bishop of Leeds [V]]

My Lords, it is a great pleasure to follow the speech by the noble Baroness, Lady Suttie. I endorse completely the points made by the noble and learned Lord, Lord Judge, at the outset of this debate. I hope the Government will listen carefully to the advice from the noble Lord, Lord Empey, on the alternatives to what is before us. This is not an either/or situation.

I have read every word of the Second Reading and Committee debates and the reports—especially from the Constitution Committee. I have even reread Tom Bingham’s book on the rule of law. I ask myself whether I am missing something, but I still come back to the point of principle. I accept the Government’s intention in this Bill, but not the means. We were given pragmatic answers to questions of principle, particularly in the responses to the Second Reading debate. These will not work. At Second Reading, the Minister dismissed the ethical argument which I tried to set out succinctly in my speech. Yet even in today’s debate, we have heard moral language used. To speak of suspected bad faith by others is to speak of ethics. Ethics must form the basis of political principle. Objections to other countries breaching international law have to be set in moral considerations.

18:15

In the last couple of decades, during the Mugabe years, I have had a lot to do with Zimbabwe and latterly with Sudan, including meeting former President Omar al-Bashir. How can we say to people like them that the rule of law is paramount and that one’s word has to be taken in good faith?

This is an ethical and a constitutional issue. How can the Government ask Her Majesty the Queen effectively to give Royal Assent to the acceptability of breaking laws to which we have agreed? Mischievously, I suggest that we might refer to it as King John’s revenge.

There are other parts of this Bill with which I am not happy—what the noble and learned Lord, Lord Judge, referred to as Executive sovereignty trumping parliamentary sovereignty; the impact on the devolved authorities, and the concerns raised about the Northern Ireland protocol. Fundamentally, I keep coming back to the issue of ethical principle.

I will vote against the various clauses in Part 5 not standing part of the Bill. I hope that the Government will listen and look at alternatives which can carry the support of the Committee.

[Lord Cormack (Con)]

My Lords, I follow the right reverend Prelate the Bishop of Leeds in hoping that the Government will listen.

Earlier today, we had a good example of how your Lordships’ House works at its best. The Agriculture Bill has now gone through all its parliamentary stages with significant amendment—much of its achieved through debate and persuasion in your Lordships’ House. Although there are aspects of that Bill that many of us still question, nevertheless we can claim that the Government have listened and that something will get on to the statute book improved by your Lordships’ House and worthy of our parliamentary process.

We could not be further away from that with the Bill now before us. I listened with admiration and agreement to the noble and right reverend Lord, Lord Eames, and to other noble Lords, but Part 5 cannot be improved. Part 5 has to go. In seeing it off—which I believe it is our duty to do—we are honouring and not abrogating the Salisbury/Addison convention, as I said on Second Reading. This was part of a manifesto commitment. It is not a law passed by some previous Government of another party. This is a law campaigned for by the Government, who won a sweeping victory in the general election last December. The early stages went through this Parliament, pre-Covid, and now we are told that the Government want to abrogate.

The noble and learned Lord, Lord Judge, in a magisterial speech, pointed out what a blemish on our national reputation this would be—and it would. We would rightly be accused of losing our moral compass as a nation. How can we talk to others about honouring the rule of law if we ourselves are pushing through Parliament an Act that abrogates a treaty willingly entered into, commended to Parliament and endorsed by it less than a year ago? As we have debated, the Bill has many imperfections—it is a real threat to devolution—but what is fundamentally wrong with it is that we are abrogating that treaty, and putting ourselves on the level of countries for which the rule of law is not of much consequence.

For goodness’ sake, we are looking across the Atlantic at the moment and seeing how crucial it is that the leader of the free world and the greatest country in the world believes in the rule of law, and not just when it is convenient. I deplore that we are in this position, and devoutly wish that we were not, but I could never support this part of the Bill. I do not like much of the rest of it, but I certainly could never support this part. We have not only a unique opportunity, but also a unique duty, to ensure that this does not pass.

We have certain powers in your Lordships’ House. We are always very wary of how we exercise those powers, and that is right, because the ultimate authority lies with the elected House, but this is something forced through the elected House by our Government, which, as the noble and learned Lord, Lord Judge, said in that splendid speech, puts into the hands of any Minister the opportunity, by secondary legislation, to repudiate law.

Tom Bingham has been cited in evidence before in your Lordships’ House and has been mentioned again tonight. I implore my noble friend on the Front Bench to read carefully that marvellous little book, The Rule of Law. It will not take him long. What would Tom Bingham be saying tonight? How fortunate we are that another former Lord Chief Justice, the noble and learned Lord, Lord Judge, has been able to give the lead with forensic skill, devastating logic and impeccable argument. We must not allow this to go through, and the only way of ensuring that it does not is to vote against every one of the clauses in Part 5 standing part. I propose to do so, and if necessary, will do it again and again.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow my noble friend Lord Cormack. I pay tribute to his excellent work over many years in the other place, not least in his model chairmanship of the Northern Ireland Affairs Committee, which I commend today. I shall speak to Amendments 179 and 180, but I will not press them to a vote. Before I speak to them, I endorse what my noble friends Lord Cormack and Lord Howard of Lympne said. It was a privilege to serve as a humble shadow Minister in the Conservative Party under the leadership of my noble friend Lord Howard of Lympne. I also pay tribute to the noble and learned Lord, Lord Judge. He has set out in his amendments why I shall certainly be voting against this part of the Bill.

On Clauses 42 and 43, the noble Lord, Lord Empey, stated the importance of agri-food and the food industry to Northern Ireland. We should pause for a moment on that point. I pray in aid the evidence that we have heard on the EU Environment Sub-Committee, that all those involved in the production of food in Northern Ireland, and industries such as road haulage and freight, which serve that industry, are distraught at the moment because they all thought that this was done and dusted in the Northern Ireland protocol and under the provisions of the EU withdrawal Act. I regret that we are now discussing those issues again in this context. I have no doubt that this was largely because of a misunderstanding of what the Prime Minister had agreed to in what formed the basis of EU withdrawal agreement.

I cannot support this because I am a non-practising member of the Faculty of Advocates and would be drummed out if I broke my oath. Article 26 of the Vienna Convention on the Law of Treaties clearly states that all agreements should be kept and that every treaty

“in force is binding upon the parties to it and must be performed by them in good faith.”

In the words of the noble and learned Lord, Lord Judge, the provisions in Clauses 42 to 47 are offensive and obnoxious, and I wish to have no part in them. I shall follow the lead of my noble friend Lord Cormack in voting against them this evening and on every occasion when I am asked.

I am grateful to the Law Society for briefing me on this and for preparing me to table Amendments 179 and 180, but if the provisions before us in this part were not bad enough, they were compounded as the Bill made its passage through the other place. The provisions in Clause 56(4) provide additional parliamentary scrutiny of the decision to commence in the sections, which, if enacted, would, if anything, compound the breach of international law. Clause 56(4) is defective for those reasons, not least because it is trying to elevate to a matter of process what is offensive and obnoxious in this part of the Bill. It also downgrades the role that we would play in your Lordships’ House by simply taking note of the commencement order for Clauses 44, 45 and 47.

I do not wish to move my amendments, but I am grateful to the Law Society for pointing out the further deficiencies in this part of the Bill. It is largely academic, because I shall be voting against all five clauses in Part 5 of the Bill.

[Baroness Altmann (Con) [V]]

My Lords, I am humbled to follow so many powerful, erudite, emotional and persuasive speeches. The noble and learned Lord, Lord Judge, presented the case brilliantly. The noble and right reverend Lord, Lord Eames, the noble Lords, Lord Newby and Lord Hain, my noble friends Lord Howard and Lord Cormack, the noble Baroness, Lady Ritchie, and so many others across the Committee, have outlined why it is essential that your Lordships’ House removes each and every clause of Part 5 of the Bill. We cannot allow the Government to rewrite an international agreement to suit ourselves, and to undermine the very foundation of our democracy, which is based on the rule of law and parliamentary sovereignty.

I am proud to sit in your Lordships’ House, and to have grown up in this country, which I have always considered a beacon of respect for the rule of law, for upholding international law, and for honesty and moral standards of behaviour, but I too join my noble friend Lord Howard in opposing the Bill, and agree with him that this is not about whether one was for Brexit or remain. It is much more important even than that.

18:30

I join my noble friend Lord Howard and the most reverend Primate the Archbishop of Canterbury in paying tribute to the exceptional and irreplaceable noble Lord, Rabbi Lord Sacks, a friend and inspiration to me for years, as well as to so many others. I urge my noble friends on the Front Bench to recognise that this Bill is not just unlawful but unethical, as the right reverend Prelate the Bishop of Leeds pointed out, and, I believe, immoral. In his last book, Morality, the noble Lord, Rabbi Lord Sacks, warned of the breakdown of society and its impact if societies become insular and ignore the international partnerships and respect on which civilisation has been based. As he observed, removing the moral matrix of civil society leads eventually to the death of freedom, in the name of freedom.

As referred to by other noble Lords, Europe, let alone other continents, has had more than its fair share of regimes that have overridden international law and disrespected ethical principles and norms of decent behaviour in pursuit of nationalistic goals. I never believed that Britain could be among them. Tonight is the 82nd anniversary of Kristallnacht, which saw an authoritarian regime that had seized unfettered powers override its courts and civilised norms; it ended up wiping out millions of people, including most of my parents’ families. Since those dark years, however, our recognition of the importance of co-operation and the rule of law have helped promote peace across our continent.

I put it to your Lordships that, as my noble friend Lord Cormack, said, it is our duty to oppose all the clauses of Part 5 of this Bill to protect the rule of law and ensure that the balance of power and peace in our United Kingdom are not overridden by a group of the Executive in the name of national sovereignty. If this House does not oppose Part 5 of the Bill, what is it for? The Government and the other place must think again.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, we have heard some amazing and inspiring speeches. The noble and learned Lord, Lord Judge, spoke of the “lamentable provision” of Clause 47. As has been voiced so eloquently this evening, I fear that there is too much that is lamentable in Part 5 of the Bill.

As a member of the Joint Committee on Human Rights, I shall speak to Amendments 164 and 165, which relate to the committee’s inquiry and report on this Bill. The committee expressed a number of reservations about the Bill, and considers it hard to reconcile the Bill with government statements that it is compatible with human rights. The Human Rights Act 1998 makes it unlawful for public authorities, including Ministers, to act incompatibly with the rights guaranteed by the European Convention on Human Rights. By stating that Section 6 of the HRA does not apply to the making of regulations under Clauses 44 and 45, the Bill removes a prohibition on Ministers making regulations that violate human rights. The committee concluded that it could not see why this provision would be necessary unless the Government were contemplating regulations that did not comply with human rights.

This amendment fulfils the requirement stated in the conclusion of the JCHR report:

“The Bill should be amended to make clear that Minsters making regulations must comply with the rights recognised in the Human Rights Act 1998.”


This is surely an ethical principle, about which the right reverend Prelate the Bishop of Leeds and the noble Baroness, Lady Altmann, spoke so eloquently.

Amendment 165 seeks to omit Clause 47(3). In its report, the Joint Committee on Human Rights concluded that it

“does not consider it constitutionally acceptable for ordinary delegated legislation to be treated for the purposes of the Human Rights Act as if it were primary legislation passed by Parliament.”

I note that the Constitution Committee has echoed this concern. The Bill as it stands would remove the power of the courts with regard to their option to strike down legislation made by Ministers if it is incompatible with the rights guaranteed by the European Convention on Human Rights. Clause 47 would insulate secondary legislation that breaches human rights from the usual consequences of a successful legal challenge. This clause should clearly be removed, as should all of Part 5 of the Bill.

[Lord Dubs (Lab) [V]]

My Lords, I am also a member of the Joint Committee on Human Rights and I support what my noble friend Lady Massey said in putting forward the committee’s views and concerns. The noble and learned Lord, Lord Judge, spoke for me—and for virtually the whole Committee—in his opening speech. I think I agree with every contribution made so far, so I shall be brief.

On the front of the Bill, under the heading “European Convention on Human Rights”, it says:

“Lord Callanan has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the United Kingdom Internal Market Bill are compatible with the Convention rights.”


Every Minister has to certify a Bill’s compatibility with the human rights convention.

The courts cannot strike down primary legislation but can make only a declaration of incompatibility. However, secondary legislation is different; the courts can strike it down if it is incompatible with the rights guaranteed by the European Convention on Human Rights. Why is there a difference? I believe that it is because, while primary legislation can be and is fully debated and amendable by both Houses, in contrast secondary legislation inevitably has a less thorough process of parliamentary scrutiny. That is why these amendments are so crucial. Clause 47(3) would require the regulations under Clauses 44(1) and 45(1) to be treated as primary legislation under the Human Rights Act. That would, therefore, prevent the courts striking them down if they were found to be incompatible with human rights.

The Joint Committee on Human Rights concluded:

“The Committee does not consider that it is constitutionally acceptable for ordinary delegated legislation to be treated for the purposes of the Human Rights Act as if it were primary legislation passed by Parliament.”


The Constitution Committee of this House echoed that point. It was

“concerned that clause 47 seeks to alter the scheme provided in the HRA without wider consideration of its constitutional implications and compliance with the UK’s international obligations under the Convention.”

I know that the Government have occasionally said that they do not like the Human Rights Act, but we should not seek to undermine it by a back-door approach. We surely need a proper debate on the Act, not to have something slipped in in this way.

I shall certainly vote against the Government on all the amendments to Part 5, but I draw particular attention to this, in the hope that the Government will never again try to use such a tactic to undermine the Human Rights Act.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

The noble Lord, Lord Singh, has withdrawn. I call the noble Lord, Lord Dodds of Duncairn.

[Lord Dodds of Duncairn (DUP)]

My Lords, we are in the position of Part 5 having to be brought forward because of the contents of the Northern Ireland protocol. We find ourselves in a very unfortunate position. Unionists in Northern Ireland do not find much comfort in some of the clauses in Part 5, particularly the clauses about preventing reach back in relation to the application of state aid rules for Great Britain but nevertheless allowing Northern Ireland to be subject to EU state aid rules, which could cause considerable problems going forward for the competitive position of businesses in Northern Ireland with businesses in the rest of the United Kingdom.

The protocol is at the root of the problem. The noble Lord, Lord Empey, referred to this. The protocol was opposed by us on these Benches because it differentiated between Northern Ireland and the rest of the United Kingdom as we left the European Union and we were always promised that we would leave as one United Kingdom. I have to correct the noble Lord on one thing: he has today and on previous occasions sought to lay some responsibility for this sad situation at the feet of the DUP. Of course, he will know that on 2 October last year—it is worth correcting the record since the assertion has been made—when the Prime Minister sent his proposals to Jean-Claude Juncker, one of the five principles, the elements that the Prime Minister set out, was that any potential all-Ireland regulatory zone on the island of Ireland could happen only if the Northern Ireland Executive and Assembly had the opportunity to endorse those arrangements before they entered into force and every four years afterwards. If consent was not secured, the arrangements would lapse, and it was on that basis, with the security of a lock in the Northern Ireland Assembly, as was agreed in the joint report of the EU and the United Kingdom of December 2017, that we gave a cautious welcome. When the Prime Minister jettisoned that democratic consent principle—and the Government have indeed jettisoned the principle of giving the Northern Ireland Assembly and Executive the right to say that this should come into force in Northern Ireland—we made it clear that we would not support the Government in that. I think it is important to correct the record and lay the responsibility where it truly lies.

On Clauses 43 and 44, we have heard many eloquent speeches tonight, but I speak as one who represented the city of Belfast for more than 35 years. It is a very diverse constituency. Whether a business is owned or run by someone from a unionist family or a nationalist family or indeed of no particular political persuasion, they are all interested in trying to make their company work, be prosperous, employ people and contribute to the economy. They are all united on the fact that it would be disastrous to have checks between Northern Ireland and the rest of the United Kingdom to fetter trade unnecessarily as they would add to costs. More than £8 billion-worth of trade goes from Northern Ireland to Great Britain and from Great Britain to Northern Ireland every year. This is an immense amount of trade. Almost 60% of all trade in Northern Ireland is done with the rest of the United Kingdom.

We talk about grand philosophical and legal principles, and I understand all that, but this is not a unique situation for any country to find itself in. To hear some noble Lords, one would think that this is the only country that has ever decided to step away from an international obligation in the interests of its own sovereignty, its own interests and the interests of its citizens. That is not the case by far. None of that has been referenced, although to go to into all that is perhaps more appropriate for a Second Reading speech than the debate on these clauses. However, it is important to remember the reality of the economic position that many companies in Northern Ireland and the people who are employed by those companies will find themselves in if sensible arrangements are not made to recognise that Northern Ireland is a full member of the customs union of the United Kingdom.

We must remember that the Government and the EU made commitments in this regard. I referred earlier to the joint report agreed between the United Kingdom Government and the EU back in December 2017, which allowed the negotiations to move on to the next stage at that point. Paragraph 50, which the EU agreed to, states:

“In the absence of agreed solutions … the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless”—


this is the point I made earlier—

“consistent with the 1998 Agreement”—

they would uphold the agreement, so let us listen carefully—

“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances”—

it is important for noble Lords to remember this—

“the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”

18:45

We want to hold people to their commitments and agreements. It is very important that we look at all of it in the round, and that we look at the commitments given to all the people of Northern Ireland. Recently, we have talked about the stability of devolution. We have gone through a very difficult period where for three years we did not have the Executive up and running in Northern Ireland. We got it back up and running in January this year. The New Decade, New Approach agreement meant that that the Executive and Assembly could get up and running again. Thank goodness they did, given the current situation we find ourselves in, grappling with unprecedented challenges.

What does that NDNA say? It was the basis on which the parties restored devolution. On page 47, at paragraph 10 it says:

“The Government welcomes the consensus reached by all the parties recently on the protections they wish to see for trade between Northern Ireland and Great Britain under the Protocol. The Government is absolutely committed to ensuring that Northern Ireland remains an integral part of the UK internal market, in line with the clear guarantee in the Protocol that Northern Ireland remains in the customs territory of the United Kingdom. To address the issues raised by the parties—

plural: it is not just the unionist parties—

“we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021.”

That was signed in January this year after the Northern Ireland protocol was agreed—indeed, after the general election.

It is very easy to look at the Belfast agreement and say that it is all about maintaining no border on the island of Ireland. I agree with no border for customs. My father was a customs officer for many years on the border. After serving in the Army, that is what he did. I know what it is like. I remember as a child going out to those customs posts and watching what happened. The United Kingdom Government have never suggested, nor has any party in the Northern Ireland Assembly, any kind of infrastructure or border controls north/south. Equally, we have been at pains to say that, just as it is unacceptable to nationalists to have that border on the island of Ireland, it is equally unacceptable to create barriers between Northern Ireland and the rest of the United Kingdom.

That is why we feel strongly that some of the emphasis on the Belfast agreement in this House and other places has erred somewhat to emphasise one side of the situation. Many unionists in Northern Ireland feel deeply frustrated and angry tonight about the way in which it is okay to have a free border north/south but you can do whatever you like east/west. We must come to sensible, pragmatic arrangements. The Belfast agreement and the St Andrews agreement, which was negotiated by our party and Sinn Féin, are important to Northern Ireland. They must be implemented in a balanced way.

As I close, I appeal to noble Lords to take into account previous commitments, pledges, promises and agreements, from the EU itself and Her Majesty’s Government, made before and after the Northern Ireland protocol was introduced. Let us please have balance with regard to the need to ensure that unionists as well as nationalists and those of no political affiliation are comfortable with the arrangements that come into force after the transition period ends.

[Lord Lilley (Con)]

My Lords, we have listened to many moving and powerful speeches from right reverend Prelates and noble and learned Lords about the abstract principles raised by this Bill and, particularly, by Part 5. They are very important principles. It is a particular privilege to follow the speech of the noble Lord, Lordusb Dodds, which has been the first to spell out the practical implications for people’s livelihoods if the withdrawal agreement is not applied in the spirit of the promises made by both sides—the United Kingdom as well as the European Union—to all the people of Northern Ireland. There are practical and constitutional consequences, which somehow have escaped the notice of every single noble Lord who has spoken up to this moment.

At Second Reading, I asked a question which I make no apology for repeating: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or with its own fundamental constitutional laws? No one in your Lordships’ House has explicitly addressed that question. Maybe that reflects how difficult our hybrid procedures make the proper and effective interchange of ideas and debate in this House, but maybe it was also because most noble Lords have framed their positions in absolutist terms: we must obey international law, full stop.

By implication, there can be no circumstances in which legal obligations under one treaty can clash with those under another or with a country’s fundamental domestic laws. However, as I pointed out before, that is not the view that other countries take. The European Court of Justice itself spelled out that, although the European Union 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”.

It also says that,

“although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty.”

I do not think it is wrong to say that. If I wanted to carry forward the European Union, I would have that order of priorities, but I want to carry forward the United Kingdom, so my priorities are put first and foremost—the fundamental constitutional laws of this country, when and if they clash with an international treaty.

The German Constitutional Court has ruled that if treaties—even European Union treaties—conflict with basic German constitutional law, the latter prevails. The strange thing is that, when the EU or Germany set aside any aspect of international law that clashes with their fundamental internal laws, no one suggests that they are putting at risk the entire international framework of law or rendering themselves international legal pariahs. Why is it so contentious when we suggest that we might need to do likewise when it is not contentious for them?

Although no noble Lord in the debate explicitly answered my questions or addressed these issues, the noble and learned Lord, Lord Judge, who opened both this debate and the debate on his amendment to the Second Reading Motion expressing regret, implicitly addressed the issue in his summing up of the debate. He acknowledged:

“‘We may need these powers at some stage.’ Maybe we will; I hope not. If we do, it is perfectly open to the Government to come back to us, to Parliament, to put before us emergency legislation and … proposals, and, if they are satisfactory, to endorse them.”—[Official Report, 20/10/20; col. 1431.]


But surely, once we accept that powers regarding overall aspects of the withdrawal treaty may be necessary in future, the enabling measures in Part 5 cannot be wrong in principle. Whether we take the power now or reserve doing so for a later date in a separate Bill becomes a procedural and tactical issue, not one of principle. My own view is that having the enabling power on the statute book makes it less likely that the European Union will refuse to negotiate “in good faith” and with respect for the other party’s “legal order”—wording used in our agreement with the EU—on the issues in Part 5 and the planned finance Bill.

I have the greatest respect for the noble and learned Lord, Lord Judge, and not just for his mastery of the law but for the objective and non-partisan way in which he approaches these issues and every other. He has been kind enough to correspond with me about these issues. Like him, I hope we never need to invoke the powers in Part 5 to override the withdrawal Act, be they the powers in this Bill or in the emergency legislation that he envisages. But like him, I recognise we may need to if the EU refuses to resolve these issues by negotiating in good faith and out of respect for our internal legal order—particularly, the Act of Union, which guaranteed free and unfettered trade between Great Britain and Ireland, and the Belfast agreement, which promised no change in the status of Northern Ireland without the acceptance of both communities.

Like the noble and learned Lord, Lord Judge, I accept that if such a problem does emerge, we should try to resolve it by the procedures within the withdrawal treaty. If we cannot agree in the Joint Committee, those would most obviously include activating Article 16. As the noble and learned Lord, Lord Keen, said, these powers in this Bill will be necessary even if we invoke Article 16 of the treaty. That would not enable the Government to act without legislative authority, so it is important to have that legislative authority on the statute book—indeed, it is essential. Again, like the noble and learned Lord, Lord Judge, I hope it will not be necessary.

There ought not to be any conflict between the withdrawal treaty and our fundamental laws, as long as both sides negotiate, as they have promised to do, the remaining internal contradictions in the withdrawal Act in good faith and with respect for each other’s constitutional orders. I was not alone in mentioning the potential clash between the withdrawal treaty and our fundamental laws. So did my noble friend Lord True in his brilliant closing speech at the end of the Second Reading debate, when he referred notably to the need to uphold the Act of Union, which ensures unfettered trade between parts of the United Kingdom, and the Belfast agreement.

I hope noble Lords will ponder these things and, most of all, the summing up by the noble and learned Lord, Lord Judge, that it may be necessary—though let us hope it is not—for us to resolve a conflict between the withdrawal treaty and the Act of Union and Belfast agreement. It is sensible to have that legislation on the statute book. But we are not, by doing so, rendering ourselves international pariahs or doing anything that any other country would not do in similar circumstances.

[Lord Clarke of Nottingham (Con)]

My Lords, it is a rather remarkable experience, as quite a new Member of this place, to find myself taking part in such an extraordinary and unusual debate, loaded with such significance and ethical and legal issues. It was a pleasure at Second Reading to follow a debate in which the eloquence of the noble and learned Lord, Lord Judge, the noble Lord, Lord Howard, and many others was extremely persuasive. I followed their speeches, which came to a dramatic conclusion when I found I was taking part in Divisions in which the Government suffered their biggest defeat in this House for over 20 years on a resounding and distinguished cross-party basis.

My first reaction was to think that, before we got to this stage, the Government would react in some constructive, positive way. I may be new here, but I have been a few years in government, and in the past, the problem would have been regarded as a fairly extraordinary one. Efforts would have been made to give the unfortunate Minister, who had drawn the short straw of defending the Government in this House, some material and opportunity to persuade, reach a compromise and perhaps move to the more pragmatic approach of the noble Lord, Lord Lilley, because this should all be resolved in a common-sense way.

19:00

However, the first thing I notice, speaking today, is that government Ministers, whose responses I hear and read, have not shifted one iota. The debate was one of those things. They have trivialised their defence of the Bill, in saying it is a contingency only, which they hope not to invoke. “It is one of those things one has to do, if we decide it is necessary to defend the integrity of the Northern Ireland economy.” I have not heard any addressing of the ethical issues of breaking the law on this scale from any representative of the Government. I have not heard anything other than the most general broad-brush explanations of what they want to do if ever they use these powers.

I find this lack of any reaction and the assumption of the Government that they will probably get their way in the end, if they persist in Parliament, quite remarkable. The scale of what we are being asked is remarkable. We are being asked to give Ministers complete discretion, in whatever way they eventually feel fit, by secondary legislation, to defy any aspect of domestic or international law. WTO rules, for example, are normally revered by the present Government but, if necessary, would be set aside under the terms of the Bill—as, certainly, would our treaty commitments, recently entered into.

I again would have expected some explanation of what dire circumstances the Government were contemplating to justify such an amazing break from our traditions, as a liberal democracy and one of the world’s principal upholders of the rules-based international order. There is no specificity. I have not heard anybody describe a particular proposal being forced upon us in these negotiations by Brussels, which would have such a horrendous and catastrophic consequence as to allow us to behave like the Government of a third-world dictatorship in giving our Executive the discretion to do what they like with their legal obligations.

The circumstances that gave rise to the Government’s decision to bring the Bill are not unexpected, in that there could well be barriers to some trade—costs, at least—across the Irish Sea. That was part of the deal the Government entered into. It was the whole basis of the negotiations between Boris Johnson and the then Taoiseach, Mr Varadkar. They agreed on a solution that, in my opinion, is much inferior to the three deals that Theresa May tried to persuade us to accept. Their deal is that Northern Ireland must remain in the single market and customs union, and the remainder of the United Kingdom, Great Britain, is to leave it. The whole point was a customs frontier down the Irish Sea. It was not a detail concealed from the public; it was set out in carefully negotiated legal texts. Both Houses were persuaded to agree to it, and the noble Lords, Lord Empey and Lord Dodds, and others openly expressed their opposition to this fundamental aspect of the deal that was going through. The Government endorsed and recommended it and then, with the approval of both Houses of Parliament, ratified it as a treaty. Only now have they changed their minds.

Of course it is undesirable to have costs at the border. I would like to see customs and export and import costs at Dover kept to a minimum. I certainly do not want to see tariffs or quotas on any trade between the United Kingdom and the European Union. I hope the negotiations are conducted sensibly and produce the minimum friction and cost. On the particular circumstances of Northern Ireland, the Republic of Ireland Government would be as enthusiastic as ours to make sure that any pragmatic solution, along the lines of those recommended a moment ago by the noble Lords, Lord Lilley and Lord Dodds, should be sought and, I hope, achieved.

The Government, however, have not waited for the outcome of the negotiations. Suddenly, they have produced this Bill. This rather Donald Trump-like gesture, this legislation, appears to have been produced in a moment of panic somewhere about the way negotiations were going, because for various reasons we have got so desperately short of time in which to conclude a hugely important agreement about our future relationships. A panic decision—saying, in defiance of our constitutional principles: “Just in case things go wrong, can we have these absolute powers?”—is no way of proceeding. It is far from the sensible policy basis of proceeding that the noble Lord, Lord Lilley, was recommending, using sound arguments about common sense and pragmatism. This is not that; it is a unilateral declaration: “Please, if all else fails and we are not sure where we are going, could the Executive have unfettered discretionary powers to break legal obligations of every kind if, in the end, between now and the end of this year, they feel it necessary to do so?”

I will not go on, because I have already made it quite clear that I would find it absolutely unbelievable if such a piece of legislation found its way on to the statute book. I served in Governments and Cabinets for many years with men such as my noble friend Lord Howard and my noble and learned friend Lord Mackay. No Government that I served in would for one moment have contemplated some adviser somewhere, or some junior Minister, presenting a Bill of this kind; it would have been rejected instantly as being incompatible with the way that we govern this country.

It is, therefore, the duty of this House to reject this and, as my noble friend Lord Cormack said, it is an issue of such principle that, rather than having just one symbolic vote and then agreeing that the other House should prevail, this goes beyond that and the full extent of the constitutional powers of this House should be used to stop this, because the consequences for the country would otherwise be appalling.

In this new global world, Britain will have to negotiate a large number of trade arrangements with many countries—friends of ours—throughout the world. Behind all the necessary negotiations in the new post-Brexit order, the one thing that we will need is to be able to negotiate with people who trust us. At the moment, it looks as though we are going into negotiations with the Americans and everyone else saying, “Yes, we will solemnly enter into a treaty that will of course involve some pooling of sovereignty and remedies for resolving disputes, and we will abide by it—unless, of course, in a few months’ time we decide that we will not, in which case we will get our Parliament to give us complete discretion to do whatever we like.” It is not only immoral as a piece of legislation; it is intrinsically ridiculous and deeply damaging to the reputation of this country. I hope that we will all act as we have all been saying this evening.

[The Earl of Kinnoull (Non-Afl) [V]]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Clarke, in his very seasoned contribution for a newbie—and indeed the other 18 speakers so far in this very important debate. The European Union Committee published our report on the Internal Market Bill on 16 October, and I take this opportunity to remind noble Lords of our conclusions. Our report was short. It deals only with Part 5 of the Bill, and its interaction with the Government’s implementation of the withdrawal agreement.

The withdrawal agreement is a complex document, around a third of which is taken up by the Ireland/Northern Ireland protocol, itself a testament to the importance that all parties place on getting things right in that regard. I said before in this Chamber that there is an inherent tension at the heart of the Ireland/Northern Ireland protocol which is evident in Article 1, which describes its objectives. There are other examples, as I said in my Second Reading speech.

The only way to reconcile these tensions is for all sides to show pragmatism and willingness to compromise. Our committee reported in June on the protocol, expressing our concern that there was not enough urgency among the parties to negotiate these compromises, so protecting first the Good Friday agreement and secondly the two mighty single markets involved: those of the EU and the UK.

The report also dwelled on the multilayered dispute resolution mechanisms contained in the withdrawal agreement. The Bill before us supplants those mechanisms without their ever having been tried. As we have been reminded already several times, in September the Secretary of State made clear and repeated statements that in doing so it breaches international law. The result is that the Bill strikes at the heart of the withdrawal agreement and the protocol. It is corrosive too to the future relationship negotiations, undermining the trust that is a precondition for a successful outcome.

The Government’s argument now, as we have already heard, not least this morning on the radio, is that the Bill is a safety net: that it does not itself break international law but is a precaution in case of unreasonable behaviour by the EU. The problem with that argument, as we point out in paragraph 106 of our report, is that the Government’s decision to act pre-emptively in the absence of evidence has put the UK, and not the EU, into the wrong. Our report ended by seeking further explanation of the Government’s approach, and in particular the disclosure of any evidence that the EU had acted in bad faith. Those explanations have not been forthcoming, and I therefore hope that, even at this late stage, the Minister will indicate a change of heart and give his support to the removal of Part 5 of the Bill.

In closing, I note that amendments proposed by the noble and learned Lord, Lord Judge, are in keeping with the thrust of our report—albeit that we had asked the Government to cure the problems themselves. Convention, however, prevents me from expressing a view in the Division Lobby tonight.

[Lord Pannick (CB) [V]]

My Lords, it is a great pleasure to follow the noble Earl, whose work as chair of the EU Committee has illuminated the issues on this Bill, as on so many other issues that we have been debating over the years.

I agree with the speech made by the noble and learned Lord, Lord Judge. There are occasions, as this debate confirms, when clauses in a Bill raise issues of political, and indeed moral, principle of fundamental importance. This House has a responsibility to identify when that occurs.

I will make some observations on Clause 47, which has not featured in detail in this Committee debate. Clause 47 is innocuously titled “Further provision related to sections 44 and 45 etc.” Clause 47 is, however, a very substantial interference with the rule of law. Clause 47(1) says that any regulations which Ministers may make under Clauses 44 and 45

“have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.”

Clause 47(8) defines

“relevant international or domestic law”

to include

“any other legislation, convention or rule of international or domestic law whatsoever.”

So whatever Ministers produce by way of regulations cannot be challenged in a court of law on any grounds.

19:15

It has been the role of the courts for well over 100 years to declare regulations null and void if, for example, they lack certainty, or if they purport to impose criminal sanctions without specific authority, or if they purport to impose retrospective penalties, or if they unreasonably discriminate between different persons or groups of persons. The Government now seek the power—an unprecedented power—to make regulations that are not subject to judicial controls, even if the regulations impose retrospective criminal penalties at the complete discretion of the Minister, for example, only in respect of supporters of a particular political party.

For Ministers to arrogate to themselves such a power, free from judicial control, sets an appalling example to future Governments and, of course, to Governments abroad. As your Lordships’ Constitution Committee, of which I am a member, concluded in its report, HL Paper 151, at paragraph 195:

“If enacted, such an exclusion of the judicial function would put ministerial regulation-making powers above the law in an unprecedented manner. It would be an unacceptable breach of the rule of law.”

I shall also say something about the argument advanced at Second Reading and repeated today by the noble Lord, Lord Lilley, that for Part 5 to confer power on the Government to breach international law is consistent with international precedents. The noble Lord said that no other Lord had answered his point, so let me try. I accept that there may be, as he says, extreme circumstances in which a state may breach international law if that is necessary to protect its own constitutional values. But one of the problems with that argument is that, in the context of the Bill, the Government are seeking the power to resile from a treaty which they entered into last year and which contains specific arbitration provisions to resolve disputes. If there are conflicts between the treaty that we signed and our constitutional values, it is extraordinary that the Government did not identify them last year before signing up to the treaty, and it is quite extraordinary that the Government are bringing forward these provisions without identifying with precision and evidence what the alleged conflict now is.

Most of important of all, even if the noble Lord, Lord Lilley, were right—and he is not—on the issues of principle, we should not be asked to authorise regulations to breach international law at the complete discretion of Ministers, without any legal controls in the way that I have sought to explain. When the noble and learned Lord, Lord Judge, divides the Committee, I shall be supporting him in the virtual Division Lobby.

[Baroness Hoey (Non-Afl)]

My Lords, I rise to support all the clauses that deal with the Northern Ireland protocol. I am very much aware that this House is full of lawyers; I declare an interest in that I am not a lawyer—perhaps that is a good thing sometimes. Over the four years since the referendum, I have been surprised and shocked by some of the ignorance spoken about the Belfast agreement. I sometimes wonder whether people have actually read it. It is a fact that many who disliked the referendum result used the Belfast agreement to try to make it more difficult for the Government by continually promoting the idea that the agreement said that there could be no trade checks at the border. Of course, this was wrong; the agreement made no mention of trade borders.

Unfortunately, whether by accident or design, or because of the pressure from the Irish Government, the people of Northern Ireland have, in plain words, been sold out. I believe that the way in which the fears of a hard border were deliberately escalated meant that the EU was delighted. Michel Barnier himself was seen on camera and quoted as saying that the border argument was a good way of punishing the United Kingdom for leaving.

How can any of your Lordships think that creating a trade border down the Irish Sea between Northern Ireland and the rest of the United Kingdom is protecting the Belfast agreement when the one border—the key and crucial border—recognised in the agreement is that between Northern Ireland, as part of the UK, and the Republic of Ireland, as a foreign country? How can one go against the Belfast agreement while we all have to accept the other and say that it is wonderful?

Creating a new border, cutting Northern Ireland off from the rest of the UK, is already breaking the Belfast agreement, unless Northern Ireland consents to being cut off. The principle of consent, which we hear very little about in the Belfast agreement discussions now, is central to the agreement, and it is shattered by this protocol, which I did not support in the House of Commons. It is worth stating that the “Constitutional Issues” section of the Belfast agreement says that, as

“the present wish of a majority of the people of Northern Ireland … is to maintain the Union … it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.

However, this is precisely what is happening. The protocol itself is a blatant breach of the Belfast agreement and international law.

I believe that the Bill is trying to improve this in some way, and, clearly, I have no trust whatever in the good faith of the European Union on this issue. Quite rightly, Her Majesty’s Government need to be one step ahead, and this is what the clauses that some noble Lords seek to remove are doing. They do not violate any laws but merely create a mechanism to be used in trying to make less damage come from parts of the protocol if the European Union decides to play games.

If parliamentary sovereignty means anything, it must mean that Parliament can enact legislation that breaches international law on some occasions. Ministers must be free to recommend this to Parliament. I know that lawyers hate this, but the sovereignty of Parliament is supreme, and no country can be bound for ever by an international law. Political judgment has to be used as to when it might be necessary, but I would have thought that standing up for part of the United Kingdom when an action is going to harm it is such a necessity.

The protocol sets out the principle that:

“Northern Ireland is part of the customs territory of the United Kingdom”.


Therefore, goods should be able to flow freely, but the EU judging the risk of goods crossing into the Republic is worrying, as there are strong incentives to insist on a very wide definition of “goods at risk”. Let us be honest, it has a strong economic incentive to make life as difficult as possible for British-based exporters of goods into Northern Ireland to give an advantage over them to the EU’s own exporters in the Republic and elsewhere.

The problem is that, if the UK refuses to agree a wide definition and insists on a more limited class of goods genuinely at risk of onward sale into the EU, the default position, if there is no agreement, appears to be that all goods passing from GB to Northern Ireland would be subject to duties. This would create huge extra administrative costs and bureaucracy to move goods from one part of our country to another. I do not believe that that can be allowed. I feel that my duty here is to speak for those who just want to see your Lordships’ House stand up for our country against the bad faith, or the likely bad faith, of the European Union. Arbitration would take a long time and, in the meantime, the people of Northern Ireland suffer.

To take out these clauses now would be a further stab in the back of the people of Northern Ireland. To say, as some noble Lords have, that we must remove them to please the new US President is something I believe will shock decent people in the real world outside this House. First and foremost, we must stand up for our own country. Noble Lords can show today that they genuinely care for Northern Ireland and the union, and that they have read the Belfast agreement. I am not surprised about the position of the opposition Benches on this, as the Opposition do not even allow people in Northern Ireland to vote for their party. To noble Lords on the government side, I say: remember those true unionists of your party over the years who gave their lives—Ian Gow, Airey Neave—and do the right thing. I hope tonight that noble Lords will show that they really care about Northern Ireland and will leave these important clauses where they should be.

[Lord Stirrup (CB)]

My Lords, the Good Friday agreement was made possible, at least in part, by the fact both the United Kingdom and the Republic of Ireland were members of the EU. The common rules and procedures under which we both operated, enabled unionists and republicans to claim that the agreement went some way to advancing their political agenda. It was in many ways a classic deal—fully satisfactory to neither party but acceptable enough to allow agreement. The UK then voted to leave the EU. It was not the option I preferred, but I accepted the result. Having accepted it, I was clear that the best course for us was to leave the single market and the customs union as well. Anything else might well have had some economic advantages but would have left us in the worst of all worlds politically.

That meant that there would need to be border of some kind between the UK and the EU. The nature of the border would depend on the future relationship between the two parties, but a border there would be. This was foreseen and foretold. However, a border that separated Northern Ireland from the Republic to the south, might well have implications, both practical and political, for the Good Friday agreement. The protocol for the EU withdrawal agreement was designed to deal with this and the Government were content with it when the agreement was approved by the UK Parliament. The Government now say the EU might apply the protocol in a way that was never intended, and that Part 5 of the Bill is necessary to protect the position of the UK.

Quite why we should assume the EU would behave in such a way, no matter what ill-advised comments might have been made in the heat of argument, is not clear to me. In any event, a dispute resolution mechanism already exists to tackle any problems of interpretation and application that might arise. If this were tried and found wanting, and the Government believed the UK’s national interests were seriously at stake, they could introduce emergency legislation to Parliament at that point. They would then be responding to a breach of faith, not creating one. This would place us in a position far preferable to that which would result from accepting the provisions in Part 5. Acting in self-defence—it seems to me and, I suspect, to many others—is entirely different from getting one’s retaliation in first.

There is no reason why the Government could not have an oven-ready Bill sitting in their political refrigerator for this purpose. If it were appropriate, and proportionate, we would, I suspect, have a great deal of international sympathy and I would certainly support it. What I cannot support, however, is a Bill that authorises Ministers to break the law based on some hypothetical event and damages our power to exercise strategic influence in the wider world. I am persuaded by many of my noble and learned friends that to do so would be wrong in law. I am quite certain in my own mind that it would be wrong in principle, for all the reasons I set out in my speech on Second Reading and that I need not repeat this evening. This is not a disagreement on matters of policy; it is a question of law and principle, which we have a duty to uphold.

I am not a remoaner. I have said that I accepted the result of the EU referendum. Indeed, as I said, having accepted it, I argued for our withdrawal from the single market and the customs union. If my voting record were to be checked, it would be found that I support the Government in the Division Lobby far more often than I oppose them. I do not believe I am what the Government might regard as one of the usual suspects. However, I oppose Part 5 of the Bill and will vote accordingly in any Divisions on its clauses standing part.

I acknowledge that the Government have a difficult task in reconciling the potentially contradictory aspects of the withdrawal protocol and the Good Friday agreement. That perhaps became inevitable once we left the EU but, given the breadth and depth of the dissatisfaction with Part 5 that is evident across this House, I urge Ministers to think again about the course that they are following. It is not too late for them to adopt an approach that can command support across the United Kingdom but that maintains our hitherto exemplary status as a law-abiding and trustworthy member of the community of nations.

19:30

[Baroness Noakes (Con)]

My Lords, I am speaking today because I believe that the clauses that the noble and learned Lord, Lord Judge, and other noble Lords oppose are wholly in the United Kingdom’s national interests and, importantly, wholly in the interests of our fellow citizens in Northern Ireland.

Part 5 of the Bill represents a sincere attempt by the Government to protect the Good Friday agreement and peace on the island of Ireland. If the way in which Northern Ireland has to operate within the United Kingdom is harmed, it would follow that peace and reconciliation within Northern Ireland will itself be harmed. The Northern Ireland protocol explicitly recognised that Northern Ireland would remain within the UK’s customs territory and internal market. This is crucial for Northern Ireland, as nearly 50% of its exports go to the rest of the United Kingdom. This is more than double the amount exported to the Republic and four times the amount exported to the rest of the EU. Trading within the UK’s internal market is not an optional extra for Northern Ireland. An east/west trade border in the Irish Sea is bound to have an adverse impact on the Northern Ireland economy, and economic weakness would not take long to translate into political tensions.

The practical issues of trade with Northern Ireland—for example, how the risk of goods entering the EU via Northern Ireland will work—have not yet been agreed in the Joint Committee. There is no guarantee that an agreement will be reached and, if there is no agreement, a number of harmful consequences—for example, in relation to third-party listing of agricultural products—could well follow. I understand that these have been threatened by the EU. Faced with this uncertainty, I believe that this Bill is a responsible approach by the Government to protect the interests of the United Kingdom, particularly the interests of Northern Ireland.

The Government could have waited until real harm was done in Northern Ireland, economically and politically, but that would be to court disaster. The Government have not waited until they on a burning platform. Instead, they have taken the pragmatic approach of providing a contingent power in the Bill to be activated only with the consent of Parliament and used only if the dispute resolution procedures fail.

I ask noble Lords whether they would still oppose Part 5 of this Bill if the Government sought to legislate in the face of actual, rather than prospective, harm. Would concerns about the rule of law really stop noble Lords voting through whatever was necessary to protect the UK’s economic interests and peace in Ireland at that point? I do not think so. I do not think that the rule of law is the relevant point. I am not sure that what the noble Lord, Lord Pannick, said really answered the challenge on this from my noble friend Lord Lilley. If noble Lords can accept that the national interest might require us to break an international agreement in the face of actual harm, in logic they ought to support this proportionate approach to protecting the union, as well as stability and prosperity in Northern Ireland.

Lastly, I ask the opponents of Part 5 to answer one simple question: would noble Lords object to a similar power if it allowed a breach of a treaty with a state which was now an international pariah, or is the heart of opposition to Part 5 intimately linked to the fact that the EU is the counterparty to the treaty which we might need to break? I urge noble Lords to avoid unconscious bias, whether or not driven by remainer nostalgia, and put the protection of the UK, the union and peace in Ireland first.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, like the noble Baroness, Lady Hoey, I have no claim to being a lawyer, nor the son of a lawyer, but I come with 50 years of experience as a minister of the gospel in the thriving congregation in Northern Ireland and 42 years as an elected representative of the people of Northern Ireland. I have been with the people of Northern Ireland through very difficult and trying times, as well as times of joy.

I was not one of those who negotiated the Belfast agreement, nor, truthfully, did I support those who did. However, I accept the reality of its existence. Throughout the internal market Bill’s progress through this House, much has been made of certain clauses’ breach or a threatened breach of international agreement. However, it is interesting to note that those who negotiated it, some of whom are Members of your Lordships’ House and were its chief architects, do not believe that these clauses do so.

The withdrawal agreement, as it was introduced, was bad for Northern Ireland economically and constitutionally. In the other place, my colleagues repeatedly pressed the Government for change; they focused attention on the flaws and the importance of protecting Northern Ireland’s interests, as I am sure noble Lords would expect them to do. This Bill is a step forward, a recognition by the Government of the defects of the Northern Ireland protocol and its impact on the internal market of the whole United Kingdom. However, more work has to be done.

The party I belong to has been focused on ensuring that consumer choice and costs are not impeded as a result of the protocol. It is vital that Northern Ireland businesses have unfettered access to the market of Great Britain, which is so important for the Province, and this Bill sets out potential helpful steps in that respect. However, I noted the noble Lord, Lord Newby, saying “Let us not hear of unfettered trade—there will be none”. That will certainly have serious implications in Northern Ireland, if it is true.

I recently read with interest that several right reverend Prelates and other bishops wrote to the Prime Minister stating that this legislation would set a disastrous precedent and that:

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


I found that somewhat interesting, because several times in this debate I have heard about “moral responsibility” and “morality”, and how this is “immoral”. I must remind this House that I stood here some months ago where, whenever we talked about the moral issue of same-sex marriage, the Benches of the right reverend Prelates were empty. Whenever we discussed the moral issue of the most liberal abortion laws that were forced on the people of Northern Ireland against their democratically expressed will, where was morality talked about then? I do not know of any letters being written to the Prime Minister on the importance of this moral imperative.

We know that those changes were made to placate Sinn Féin as a pay-off to get them back into the Northern Ireland Assembly. When we talk about such issues, I would like such letters to be written to the Prime Minister in the midst of our present national crisis with Covid-19 to encourage him to call for a national day of repentance and prayer, acknowledging our need of God’s help and deliverance in our time of great distress, as I did in March at the beginning of the pandemic.

However, returning specifically to these groups of amendments, the EU is failing to honour its own commitments as set out in the withdrawal agreement. The Northern Ireland protocol states in Article 1 that it is

“without prejudice to the provisions of the 1998 Agreement in respect of the constitutional status of Northern Ireland”.

It also states that it

“respects the essential State functions and territorial integrity of the United Kingdom.”

I remind Members of this House that, for the majority of the people of Northern Ireland, the integrity of the United Kingdom is of paramount importance.

Indeed, yesterday, across the United Kingdom, we remembered the fallen of two World Wars. In Northern Ireland, we also remembered all those innocent people across the community who were slaughtered by a vicious and callous murder campaign. Over the years, thousands of our citizens have died—yes, British citizens have died—and tens of thousands have been injured because Northern Ireland’s ordinary law-abiding people refused to be terrorised out of the United Kingdom. That is what we believe is precious to us.

Those who are beholden to the Northern Ireland protocol ignore its threat to the household prosperity of every corner of Northern Ireland. The Freight Transport Association estimates that 70% of some 425,000 lorry crossings every year are destined for so-called dead-end hosts—that is, supermarkets, retail outlets, car showrooms et cetera in Northern Ireland. If those movements are subject to checks, these businesses will feel real pain and real financial loss, but I wonder whether people really care.

Free access to the internal market is a foundation block of the union. The 1707 articles of union between England and Scotland and those between Great Britain and Ireland in 1800 abolished all customs duties between the different parts of the United Kingdom. They also declared that citizens of all parts should be on the same footing in respect of trade and navigation and in all treaties with foreign powers. Does not the withdrawal agreement breach this? A single, unified internal market is therefore a key block in the constitutional foundations of the United Kingdom.

In my opinion, for the EU it was never about protecting peace in Northern Ireland. It has been using Northern Ireland to punish the United Kingdom, as was stated by Monsieur Barnier. Sadly, many others, whether willingly or without realising it, are being used in that cause. For those who support the protocol, the destruction of the UK’s internal borders and household prosperity is simply collateral damage.

Amendment 161 would require the Secretary of State to

“publish a statement on the impact … on … peace and reconciliation in Northern Ireland”

through the exercise of Clause 44. From whom would a threat to peace come? Those of us who have lived under the threat of IRA terrorism for over 30 years—personally—and our families do not want to see terrorism rise again. However, we must not be held to ransom because of the threat from those who have lived all their lives to make Northern Ireland a failed political entity. They made no apology for that being their belief and carried out their terrorism on that basis.

I want to see every part of Northern Ireland bear the fruits of prosperity—prosperity enjoyed by every section of the community. I believe that that is best served within the union of Great Britain and Northern Ireland. Surely those proposing Amendment 162 are speaking out of both sides of their mouths. On the one hand, they want to avoid barriers to trade between Northern Ireland and Great Britain, yet in several other amendments, they would dictate that the Government must not use the powers set out in the Bill if they counteract the protocol. In effect, that requires customs entry and exit declarations. They ought to come clean and stop being disingenuous. If this amendment is to be acceptable, surely there is a need for continuity throughout the Bill.

19:45

[Baroness Couttie (Con) [V]]

I, along with several colleagues, sat on the EU Select Committee, so ably chaired by the noble Earl, Lord Kinnoull. We looked closely at Part 5 of the internal market Bill. The report that we produced was the subject of some strong debate among us. The point that we all agreed on was that none of us wanted to see the UK break international law or in any way tarnish the UK’s international reputation for fair play and justice. The noble and learned Lord, Lord Judge, supported by many colleagues, seeks to have the clauses that make up Part 5 removed from this Bill. I am speaking today to support their continued inclusion.

Much has been made of Brandon Lewis’s remark stating that Part 5 of the internal market Bill breaches international law in a “limited and specific way”. However, his is not the only view on this controversial point. Having listened to the arguments put by the noble and learned Lord, Lord Keen, and the Prime Minister and the evidence given by Michael Gove to the committee, it is clear to me that Part 5 may not break international law and is an essential safety net to protect the UK, most specifically in regard to both the economy and peace in Northern Ireland.

My noble friend Lord Lilley has already quoted the ECJ, pointing out that it does not expect EU countries to apply international law unconditionally. Various articles under the Vienna convention allow all countries the freedom to protect their interests and Article 184 is clear that parties must negotiate in good faith.

The withdrawal agreement was signed with contradictory clauses in it that each side thought protected their interests. Clauses that give the UK sovereignty over all its territory, including Northern Ireland, and unfettered access for goods flowing to and from the mainland and Northern Ireland are clearly difficult to reconcile with Northern Ireland remaining inside the EU customs union. The Joint Committee was established to enable resolution of these conflicts in the clauses. One of the key enablers of the proper functioning of the Northern Ireland protocol was the fair and sensible identification of the very small number of goods that were at risk of moving from the mainland to Northern Ireland and then into the EU.

We know that, as part of its negotiation, the EU threatened to withhold third-party status from the UK. The Prime Minister has told us that the EU also threatened to use the Joint Committee to designate all goods moving from the UK to Northern Ireland as being at risk of moving into the EU. The consequence of this is that tariffs will need to be paid on all goods moving from the UK to Northern Ireland; those tariffs will then need to be reclaimed on goods with a need to prove that they were not exported into the Republic of Ireland. This will create extra costs and make some supply chains unviable. It will also divide Northern Ireland from the mainland, which is unacceptable to the unionists—a point made tonight by the noble Lord, Lord Dodds. Clearly this demonstrates that the EU has not been negotiating in good faith and gives the right, under international law, to the UK to take action to protect itself. Part 5 provides this protection.

Some, including my noble friend Lord Howard, have argued that we should use the dispute mechanism in the withdrawal agreement to resolve these issues. This will take time, during which the Northern Ireland economy will be severely impaired and the much-valued and sacrosanct peace undermined. In addition, the final determination under the dispute resolution procedure is made by the ECJ, which not everyone in the UK has full confidence in.

I am pleased to hear that the negotiations have taken a more constructive tone, both concerning third-party status for the UK and the designation of goods at risk, by the Joint Committee. If this continues to be the case, Part 5 will not be needed. I sincerely hope that this proves to be the outcome, but until the negotiations are completed, I cannot support the removal of these clauses.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, first, I want to say how sad I am at the passing of the noble Lord, Lord Sacks, who was a great member of our community in this country and a very excellent Member of our House. It is a very sad day for us. He stood up for faith and he explained faith in a way that very few were able to do.

In my view, the rule of law is a fundamental part of our constitutional arrangements; that extends to international law as well as our domestic law. During my time as Lord Chancellor, I was privileged to visit a number of countries where it was obvious that our national reputation was built on that fact to no small degree. I confess to my reaction of shock when I heard the Secretary of State for Northern Ireland intimate the proposal that is the subject of these amendments. Parliament is, of course, sovereign in domestic law. Since the House of Lords decided in Anisminic that the then common form of clause-protecting decisions from intervention by the courts protected only good decisions, such protective clauses have become rarer.

It is also of fundamental importance in the international effort to preserve peace in the world. Your Lordships will remember the heavy burden borne by the noble and learned Lord, Lord Goldsmith, in having to give advice on the relevant international law relating to Iraq. I find it poignant that we are debating this immediately after our national recognition of the tremendous cost of war inflicted on our nation. I should of course make it clear that there are lawful ways of getting out of a treaty, as provided by the Treaty of Vienna.

I do not wish to take any part in the discussions taking place tonight, including by my predecessor—whom I am glad to follow—into the situation that arises on the present discussion of the protocol. In my opinion, however, the withdrawal agreement, and the Northern Ireland protocol in particular, make it as plain as language can that its provisions are without prejudice to the provisions of the 1998 agreement in respect of the constitutional status of Northern Ireland. That principle can be used in the proper interpretation of the somewhat conflicting provisions that exist in the protocol itself, but the point is that it makes it absolutely plain that the 1998 agreement is to be respected as part of, and as a prerequisite to, the implementation of the agreement. I therefore consider it unnecessary to say, as this part does, that the Government authorise the possible breach of international law.

[Lord Moylan (Con)]

My Lords, it is daunting to speak after the noble and learned Lord, Lord Mackay of Clashfern, and to find myself disagreeing somewhat with a former Lord Chancellor. I am not a lawyer; I feel as though I have stumbled into a convention of highly distinguished lawyers. Had I stumbled into a convention of highly distinguished grocers discussing this subject, they may of course have taken a rather different tone and approach to the practicalities of the matter.

At the heart of this claim about the rule of law is a statement made by the noble and learned Lord, Lord Judge, in his speech at Second Reading, that the rule of law is indivisible. This is not a legal point but a point in the philosophy of law, and it is highly contestable. The implication is that a breach of international law, however small, will lead to, for example, a rising murder rate in Scotland or the reckless parking on double yellow lines of vehicles in Birmingham—or, indeed, that the Government of China might observe their obligations better if we did not pass this Bill.

However, people outside this House understand that that is not how law works. They understand that international law is a distinct realm in which practical relations between states are codified but do not endure if they place intolerable burdens on one party. That brings us to the substance of this part of the Bill: the intolerable demands being placed on the coherence of the United Kingdom by the manner in which the European Union is seeking to interpret and implement the Northern Ireland protocol.

Some noble Lords, in talking about this in relation to another treaty—the Good Friday/Belfast agreement—presented the alternatives as straightforward: either punctilious observation of the Northern Ireland protocol or the return of the bomber and the gunman. In fact, that was very much the gravamen of the speech made by the noble Lord, Lord Hain, at Second Reading. This is a simplistic view of the state of affairs in Ireland; it rests on the fallacy that the Good Friday agreement requires the absence of a goods border on the island of Ireland. As the noble Baroness, Lady Hoey, said, that simply is not true; the Good Friday agreement says nothing at all about goods borders on the island of Ireland. It says a great deal about the principle of consent of both communities—a principle that seems to have gone seriously astray—but about goods borders it says nothing at all.

In those circumstances, when challenged, people who take that view refer not to the text of the Good Friday agreement, where they do not find such a mention, but to its context. You cannot insist on the detailed written text of the Northern Ireland protocol while ignoring the detailed text of the Good Friday agreement and instead appealing to its context. The truth is that we have entered into a mesh of largely conflicting treaties. They do not mesh well, and the question is not whether some of those principles are going to go but which will. I noticed that, when the noble Lord, Lord Newby, spoke, he quite happily cast away the principle of unfettered access of trade between Northern Ireland and Great Britain. He does not believe that it can exist in practice, but that is because he prefers one interpretation of that complex and contradictory agreement to another.

It is an understatement to say the situation in Northern Ireland requires details and nuanced handling. An illustration of that emerged even after that debate, with the breaking news that the First Minister and Deputy First Minister of Northern Ireland, representing the DUP and Sinn Féin, had written jointly to the European Commission to object most strongly to the idea that supermarket vehicles travelling from Britain to Northern Ireland might have to be subject to border checks—but it is entirely within the Northern Ireland protocol that they should be. It is a subtle situation in Northern Ireland; if you can unite the DUP and Sinn Féin on that point, it shows that simplistic views need to be avoided.

What we face is a determination, dating back to 2016, that the EU take economic control of Northern Ireland, despite the fact that even that is contrary both to the Good Friday agreement and the EU treaties themselves, all of which recognise that Northern Ireland is fully part of the sovereign territory of the United Kingdom. I am afraid that too many Members of your Lordships’ House have adopted that view. My own view is that I do not agree with them and that it would be nice if a few more Members of the peerage of the United Kingdom actually spoke up for the United Kingdom.

19:59

Sitting suspended.

20:30

[Lord Carlile of Berriew (CB) [V]]

My Lords, on this anniversary of Kristallnacht, when some of us mourn the cruelty of the death of grandparents we never knew, I join in expressing my sadness at the death of the late Lord Sacks, a truly inspiring member of your Lordships’ House. He bore his greatness well.

It is a pleasure to follow the attractive speech of the noble Lord, Lord Moylan, disagree with him though I do. I simply suggest to him that I suspect that hungry lawyers and busy grocers share more instincts than he imagines.

I am persuaded by the clarity of my noble and learned friend Lord Judge in his presentation of the proposition that we should expunge this part from the Bill. Indeed, it is my view that we should stand fast, and make it absolutely clear to the Government that we will do everything in our power, however long it may take, to achieve that end.

I listened with great interest to the eloquent and ingenious arguments, presented in particular by the noble Lord, Lord Lilley. In my view, the noble Lord fails in those arguments for at least three reasons. First, these proposals are a deliberate and unnecessary flouting of international legal obligations which the European Court of Justice would never support. If there was any implication in what he said that it would, the noble Lord is simply wrong. Secondly, he offers no justification for the breathtaking and extraordinary use of secondary legislation on the fiat of a Minister to break treaty obligations, especially as such secondary legislation is unamendable. Thirdly, and this is a point made by my noble friend Lord Pannick, there is the issue of the arbitration provisions. To avoid those provisions is simply an abuse of process, and nothing less.

Do we learn anything from what is happening elsewhere at the moment, in relation to these proposals? Why has President-elect Biden’s election engendered such support across the democratic world? What unfolded in recent days, as I saw it in many hours of the day and night while watching the extraordinary output of CNN, promises the world the speedy return by the United States to the honouring of treaties, multilateralism, and to trust between nations. Trust between nations, however, requires one to trust the Governments of each of those nations.

I remind the House of President-elect Biden’s long-standing commitment to the Good Friday agreement, and that his commitment, and his understanding of it, will engender intensive scrutiny by the United States of the United Kingdom’s adherence to all its obligations, including the Good Friday agreement. As my noble and right reverend friend Lord Eames said in his powerful speech, the Belfast Protocol is a living instrument, and a very sensitive organism, which we should not damage in the course of negotiation tactics. The prospect of a United States-United Kingdom trade treaty, so important to this country, will not turn on the feeding and the properties of chickens.

Such issues are always negotiable. It will depend on the perceived adherence of the United Kingdom to important treaty obligations and on what the United States thinks of the integrity of the United Kingdom. Why would one make a treaty with an untrusted partner? There are plenty of other potential partners around.

My conclusion is that this part of the Bill has no place in our legal tradition. Indeed, it damages our economic interest and reputation in a key area of commerce—the extraordinarily successful legal services provided by British lawyers and the British legal system all around the world. Worst of all, as my noble and right reverend friend Lord Eames made clear, it threatens stability in Northern Ireland, which was hard won, to the credit of all sides there.

There was no manifesto commitment to break international law in this way. Rather like President Trump’s allegations of electoral irregularities, this part of the Bill is completely unsupported by anything remotely ascribable as cogent evidence. I will vote against all these clauses standing part of the Bill. I hope others will join with me in any future debates in standing firm on these extremely important issues of principle.

[Lord Shinkwin (Con)]

My Lords, may I begin by joining with the noble Lord, Lord Carlile of Berriew, and other noble Lords in mourning the loss of our noble friend Lord Sacks?

I shall speak to Clauses 44 and 45. I may be being thick but, for me—and I think for millions of people who voted for the UK to leave the EU—these clauses go to the heart of why we felt there was no alternative. I did not vote to leave the EU almost four and a half years ago because I hate Europe or because I am xenophobic. I did so with a heavy heart because I believed that, unless and until we had left and the transition period had passed, British democracy would be inexorably undermined by a lack of transparency, accountability and control. I did so because I believe in a stronger, not an ever weaker, Parliament, in government that is more accountable, not less, and in a people that thus have more power, not less.

The idea that we should surrender in the final round makes no sense at all. For that is what we would be doing without this insurance policy. Whether we like it or not, it is an inescapable fact that, without it, the integrity and viability of the United Kingdom of Great Britain and Northern Ireland could be at risk. Of course, who in your Lordships’ House does not hope that we achieve a favourable outcome through the Joint Committee process? However, this is not guaranteed by any means.

It is worth reflecting on the practical consequences of an unfavourable outcome. My noble friend Lord Lilley posed the key question: what would it mean for people’s lives and livelihoods in Northern Ireland? As the noble Lord, Lord Dodds of Duncairn, made clear, it would have a terrible impact.

Essentially, damaging defaults would come into effect, which would achieve the very opposite of what noble Lords, the Prime Minister, the Taoiseach, the First Minister and Deputy First Minister of Northern Ireland, and the President-elect of the United States all reject—the effective creation of a hard border in the Irish Sea between Great Britain and Northern Ireland. If I may, I would like to take this opportunity to say how excited I am personally by the election of the first woman and person of colour as Vice-President of the United States. It must mark one of the most exciting milestones in my lifetime and is a testimony to the overwhelming, inevitable logic of equality.

If Michel Barnier or President-elect Biden want to protect Northern Ireland’s integrity and equality through the Good Friday agreement, surely they must accept that a hard border would not achieve that objective. It is therefore essential that we safeguard the gains that have been made and ensure there is a safety net in place to protect the people of Northern Ireland—their jobs, their livelihoods and their financial security—should the EU fail to agree reasonable solutions in the joint committee. As my noble friend Lady Noakes said, these clauses do that pragmatically. I agree with the noble Baroness, Lady Hoey. If parliamentary sovereignty is to mean anything, these clauses must stand part of this Bill.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, earlier today in the debate on the Agriculture Bill, there was a great deal of rightful praise for the impact of your Lordships’ House, particularly on the crucial issue of trade standards. That reflected 90 hours of debate. We are already well into double figures on this Bill, and that is a good job: first, for the coverage of crucial issues, particularly the effective destruction by the Bill in its current form of the devolution settlements canvassed in earlier sessions; and, secondly, because the time taken to get to these amendments has meant that there is a positive global atmosphere for today’s debate, to which the noble Lord, Lord Carlile of Berriew, has just alluded.

I want to respectfully disagree with the noble Lord, Lord Howard of Lympne, who said that nothing had changed since Second Reading—although he was right to say that nothing had changed in the government position. But the global picture has changed. Had this debate been happening even a week ago, the atmosphere and environment in which it was occurring would have been very different—far more fearful. It would have felt more like the Committee was swimming against a fast-flowing current. But now the Government are the side in this debate that looks isolated and exposed. The global tide is running in the opposite direction, and they are high and dry.

The technical issues have been very clearly set out by major legal minds, and I do not intend to draw on the highly useful multiple briefings received from the major legal institutions of the nation—backing the action of the noble and learned Lord, Lord Judge, in particular—to repeat what they have already said. I simply offer the Green group’s support for all the amendments in this group tabled by the noble and learned Lord, Lord Judge, and for all the non-government amendments, and I will reflect on the national, and indeed global, reasons for your Lordships’ House to follow the lead of the noble and learned Lord on Part 5.

Today dawned with the dangerous forces of disorder and decay—those who want to sweep aside the rule of law and who demonise the vulnerable and the different, building walls and seeking to install nets to keep them out—very much on the defensive. Donald Trump has lost the US presidential election. The EU has decided to impose sanctions and deny funding to members that defy the rule of law—a move very clearly directed at Hungary’s far-right regime. In Poland, an outpouring of anger led by women against a further tightening of tiny abortion rights has developed into a far broader challenge against regressive forces. In Thailand, young people are standing up against the long-term repression of the combined forces of the military and tradition.

By backing the noble and learned Lord, Lord Judge, the Committee can today begin to point the UK in the direction that the rest of the world is travelling: towards restoring a democratic culture and the rule of law. That restoration protects the Good Friday agreement, that crucial bedrock of security and communal trust. That the unelected House—a phrase we hear a lot from the last-stand defenders of our isolated Government—should be doing this is, however, a pointer to the future.

20:45

The surge of fascism and extremism, and attempts to destroy the rule of law, that we have suffered in recent years, had their origins in the failure of the old order. Constitutions in the UK and US do not reflect the will of the people but have led them to want to take back control. If the Government want to be “world-leading”, as we so often hear, they have a very long way to go to catch up with the positive signs of turnaround in the international order. But obeying international law, dropping Part 5 of the Bill, is a crucial starting point, although we need much bigger changes.

[Lord Campbell of Pittenweem (LD)]

I begin by saying to the noble Lord, Lord Moylan, that I spend a lot of my time defending the United Kingdom of Great Britain and Northern Ireland, and I fear that the task is made more difficult on an almost daily, or perhaps weekly, basis by the fact that the Prime Minister appears to have little sensitivity to what is happening north of the Tweed.

Towards the end of his comprehensive speech at Second Reading, the noble Lord, Lord True, described the position of the Government as being an acceptable one of balance between the union of the United Kingdom and the rule of law. With that analysis I profoundly disagree. The truth is that the Government’s position and their proposed legislation have had the effect of putting these two not into balance but into competition, one with the other.

I will begin by examining the purported balance that the Government claim to have struck. They claim that, to the extent allowed by Part 5 of the Bill, which removes otherwise incumbent obligations, the Government will have increased freedom to act in relation to the departure from the European Union and, in particular, will no longer be bound by legal instruments that they negotiated as of right and successfully recommended to Parliament. It is worth considering the motive for the adoption of this position. It lies in the allegation by the Prime Minister that the European Union has acted in bad faith and may continue to do so. But, just as President Trump has produced no evidence to support claims of a similar character about the presidential election in the United States, the Prime Minister also has signally failed to support his claims.

Two fundamental questions remain unanswered. Where is the evidence that the European Union has acted, or may continue to act, in bad faith? This question has been posed on several occasions since the Second Reading debate, and yet it has still brought no answer. The second question is: why are the available arbitration and dispute-resolution procedures simply to be discarded? What sort of confidence will any subsequent party to an agreement with the United Kingdom which contains similar powers of arbitration and dispute resolution have if we discard them in circumstances in which, so far as can be established, there is no good reason? If you are asked to judge on bad faith, who would you regard as being more or less subject to bad faith—those who set off with a unilateral legislative ambition or those who stick to the terms of an agreement, in particular involving arbitration?

The truth is that the Government’s reasons for departing from the cardinal observance of the rule of law and the provisions of the withdrawal agreement lack both substance and credibility. However, in assessing balance, it is not enough to look at the flawed motives of the Government’s position: we must have regard to the consequences, actual and potential. Without qualification, I say that a breach of international law by this country weakens, at large, the rules system on which this country has steadfastly based its policies, both internal and external. We are justifiably renowned for our adherence to the principle of pacta sunt servanda, or “promises must be kept”, although I confess that, on some occasions in present circumstances, ignorantia juris neminem excusat, or “ignorance of the law is no excuse”, might be a more appropriate way to describe those in the Cabinet Office who are apparently the authors of the legislation that is so controversial in our debate.

The noble Lord, Lord Carlile of Berriew, has dealt with the contribution of the noble Lord, Lilley, as the noble Lord, Lord Pannick, also did. I will add two observations. First, both Germany and the European Union have written constitutions; we have a partly written one with more flexibility. Therefore, what happens in Germany or the European Union does not necessarily form an impressive precedent.

Of course, at the back of these two decisions, to which reference was made, was the question of necessity. Where is this question of necessity in the circumstances that we are discussing in this debate? A breach of international law, even if only in contemplation, damages our reputation and, more to the point, undermines our ability to hold others to account. It also damages our relations with our allies, damages our wider interests and divides Parliament but, perhaps more fundamentally in this case, divides the party of government.

In response to Part 5, the European Union has taken the United Kingdom to law. Who believes that the action of our Government in respect of the controversial legislation and the response of taking the United Kingdom to law will make negotiations easier for the trade deal that is absolutely fundamental to the economic and trade policy of the present Government? We are not trying to please the President-elect of the United States but to ensure that he and, indeed, the Speaker of the House of Representatives, who have already voiced adverse criticism, may be persuaded to grant the trade deal that forms such an important part of the Government’s trade policy. Not to accommodate their anxieties or understand the importance of the Irish question in domestic American politics is foolhardy, in my view. A breach of international law, even if only in contemplation, that imperils that trade deal is wholly contrary to the interests of the United Kingdom.

However, the truth is that the weight of the argument in this matter is wholly against the Government because there is no equivalence between what they seek to claim by way of legislation and the consequences of such a claim being allowed. The noble Lord, Lord McCrea, who is no longer in his place, referred us to scripture. If we are talking about balance, I refer the House to Daniel, chapter 5, verse 25: “Mene, Mene, Tekel, Upharsin”—or, “You have been weighed in the balance and found wanting”. That is the right epitaph for this piece of legislation.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I concede that I am new here, but I will issue a warning: outside this place and the Westminster bubble this row over Part 5 is seen as a last-ditch battle in the Brexit wars—yet another attempt at using legalese to delay the realisation of finally being free of the EU’s jurisdiction.

I beg to differ with the noble Lord, Lord Howard, because a certain type of remain supporter, having lost at the polls, seems keen to use this House to kill the Bill. Again and again, I have heard noble Lords say that this House must block, block, block. Whether or not Brexit is the reason for that, more humility is required in this House. Its job is not to act as a block to democratic decisions, and it does so at its peril.

Surely, an important lesson from the referendum result is that British voters rejected interference by the unelected in their decision-making powers. After all, the demand for more sovereignty and democracy was the decisive driver behind the revolt of 17.4 million leave voters. This Bill should be seen as a perfectly moral and good-faith attempt to temper a treaty that threatens the UK’s geographic integrity as an internal market, and as a democratic mechanism to ensure that political sovereignty is safeguarded.

The controversial part of the Bill is posed in the most dramatic terms around the morality of abiding by international law. At its heart, however, as in everything to do with Brexit, it is about who rules—who has the power to make decisions in a sovereign country. Yet opponents here today seem to believe that national sovereignty and democracy can legitimately be constrained by simply repeating the mantra about upholding international law. That phrase should not, however, be deployed as a counter to national law made by our elected Parliament. This is not a technical, or even a legalistic, question: it is one of principle.

The key question is what should take precedence in a democratic nation state: international law or the will of the democratically elected Government? To those of us who believe in democracy, the answer is clear: democratic will trumps international treaties every time. If we are to live in a democracy, national Parliaments that are elected by, and accountable to, their peoples must have the power to make national law and to seek to amend or override any external rule that might compromise that.

On the broader question, I have heard lots of fine speeches about the ideals of international law; it is talked about with reverence, as if it was a secular form of God’s law, a power above and beyond the grasp of mere mortals such as the voters. In reality, it is often—to quote one commentator—“Cooked up by diplomats in secret, smoke-free rooms and enforced by unaccountable judges”. Regardless of that, international law should never be used to supersede the process of democratic national law-making. Too often, however, it is turned into a supranational instrument for undermining national sovereignty. We cannot let this place endorse that approach.

Noble Lords must not get me wrong: Prime Minister Boris Johnson got himself into this pickle last year, by endorsing the shoddy withdrawal agreement—enthusiastically selling it as “oven-ready” and signing it, warts and all. At that time, and since, many on both sides of the argument have pointed out that it contains intolerable restraints on the exercise of sovereign decision-making. I myself favour repudiation, but the Government have opted for a legislative approach to the conundrum because, importantly—this is a key point—under pressure from Brexiteers, Boris Johnson eventually contested and won the December 2019 general election on a manifesto that effectively repudiated part of the withdrawal agreement. He pledged that the UK would not be tied to EU rules. The Government are now trying to keep that promise to the electorate, and that, at least, is honourable.

Today, great play has been made of a binding promise to the EU. The main binding promise that should concern us, however, is the one made to the electorate. The aim of this part of the internal market Bill, therefore, is to give the UK Government the power to override those aspects of an international treaty that might, for example, bind Northern Ireland to a range of EU rules that could, if not tempered, hand arbitration of disputes to the Court of Justice of the European Union. It is essential that the Government have the power to counter such egregious limits to UK sovereignty.

21:00

In this, the Government are not breaking the law. They are making the law by proposing a Bill that would allow them to change some of their commitments to an international treaty by getting it voted through the democratic Chamber—the other place. That is what Governments are elected to do in a democracy, and it is their right as a sovereign, elected body to do so.

Of course, I understand concerns about Henry VIII powers and worries about a power grab by the Executive. However, this place also has to avoid its own power grab against the principle of parliamentary sovereignty. After all, I remember only too well the cry from here and the other place that Parliament is sovereign, repeated ad nauseum only last year. Was that just rhetoric because Parliament was then dominated by the remain alliance, who seemed to assert the principle as a weapon against popular sovereignty and the will of the people?

I also remember only too well when the Gina Miller Supreme Court case established that international treaties become binding only when they are passed into UK law by Parliament, and Parliament alone. Now those who cheered on that decision seem to have had a memory lapse, questioning the idea that Parliament is sovereign and preferring the binding sovereignty of an international treaty, even one that will compel the UK to accept certain EU rules after the end of the transition period. This memory loss all smacks, to say the least, of double standards. For all the tut-tutting at the Government for breaking the good faith sections of the withdrawal agreement, this feels like a breach of good faith closer to home.

There is a whiff of bad-faith double standards when so many of the same people expressing fury and righteous hyperbole at the Government over Part 5’s assault on international law are often the same people who applauded illegal wars, such as that in Iraq, with hundreds of thousands killed as a consequence, and turned a blind eye on the numerous occasions when EU member states breached the EU treaties—please do not mention the illicit Airbus subsidies—as noted by the noble Lord, Lord Lilley. Or I think of those MEPs I met at the European Parliament, who kept strangely quiet when the EU flouted its own rules with illegal eurozone bailouts.

Beyond Brexit, talking of double standards, what are the electors to make of those in this House who claim they are simply driven by protecting the integrity of the law in all instances, yet have either enthusiastically lobbied for, or remained silent as, endless Covid regulations that have trashed civil liberties, flouted legal norms and stretched the law to its limits have been passed by noble Lords time and again in recent months? It is a shame that all those ethical qualms did not kick in then.

Noble Lords may be worried about the damage to the UK’s reputation abroad. I worry about the damage this House might inflict on the UK’s democratic reputation here at home if it insists on emasculating this Bill by amendments. To conclude, a nation that must adhere to treaties it cannot democratically change or reject is not a free nation. No national government anywhere should be bound in perpetuity by an international treaty. This runs entirely counter to the spirit and the principle of democracy, and so, as a democrat, I will support the Government in this Bill.

[Lord Garnier (Con) [V]]

My Lords, unlike the noble Baroness, Lady Fox of Buckley, whose vigorous reasoning I respectfully reject, I will be voting to remove Clauses 42 to 47 from the Bill. I am privileged to follow the noble and learned Lord, Lord Judge, my noble friend Lord Howard of Lympne and many other noble Lords from all parts of the House who have deprecated Part 5.

The noble and learned Lord, and those who have supported him so far, advanced compelling arguments that appeal both to my head and my heart. The arguments of the noble and learned Lord, Lord Judge, were precise, they were clear, they were right, they were devastating—and they left no room for contradiction. I agree with him.

At Second Reading I regretted the inclusion of Part 5 in the Bill. To repeat at length what I said then will not make any difference to the quality of my arguments, good, bad or indifferent, although I have subsequently discovered that my views were thought by some, although not all, close to the Government to be—let me say—extravagant. If that is what they think they are free to do so, although I have not usually found this Government’s closest advisers to be quite so delicate when they are offering their views. I hope I can tell the difference between a row and an argument—and I am advancing an argument.

At Second Reading, I did no more than advance some orthodox and widely accepted arguments against the inclusion of Part 5 in the Bill on rule of law grounds. I do so again. I also noted that the arguments put forward in and out of Parliament by the Government and their supporters for the inclusion of these clauses were risible and unconvincing. They still are. Like my noble and learned friend Lord Clarke of Nottingham, I am disappointed that nothing has changed. The proponents of Part 5 are beginning to look like post-revolution Bourbons.

Maintenance of the rule of law domestically and internationally by any United Kingdom Government, or breaking a treaty passed into British law, is no small thing and cannot lightly be tossed aside as though of no account or merely a matter of tactics in a negotiation. Moreover, denying the people access to the courts and independent judicial arbitration of disputes, or giving Ministers untrammelled executive power, cannot be acceptable. Part 5 does all these things. Eliding the sovereignty of Parliament with the international law obligations of the Government is both a confusion and a delusion. Passing the decision on when to break our legal obligations from the Executive to the legislature makes no difference and provides neither defence nor mitigation. I do not resile from a word I said at Second Reading.

No one in agreement with the noble and learned Lord, Lord Judge, is so naive as not to understand the political imperatives driving this Government in relation to Part 5, although they are imperatives of their own making, flowing directly from a treaty they freely entered into and passed into UK law within the last 12 months. This has no parallel with the European example cited by my noble friend Lord Lilley, as simply explained by the noble Lords, Lord Pannick and Lord Carlile.

I also know that the author of Part 5, our modern-day Thomas Cromwell, as I implied at Second Reading, is not on the Government Front Bench in your Lordships’ House. I entirely accept that my noble friends, as Ministers bound by collective responsibility, have no discretion or room for manoeuvre in government. I, on the other hand, am fortunately free to acknowledge some different responsibilities—to the rule of law principles that guide me as a member of the Conservative Party, as a legislator, as a lawyer and as a former law officer. I cannot in conscience support these clauses; they must come out of the Bill.

[Baroness Neville-Rolfe (Con)]

My Lords, I am glad to speak after my noble and learned friend Lord Garnier, although we come at the subject from slightly different directions. I have sat through much of the proceedings on this Bill. I have quite a few reservations, which I hope may be reflected in amendments or reassurances on Report. However, on Part 5 I have a great deal of sympathy with the Government and I thought my noble friend the Minister summed it all up very well in his statesmanlike speech at Second Reading.

The Government have come forward with safety net measures in domestic law that allow Ministers to protect the UK’s internal market, our union with Northern Ireland and the Northern Ireland peace process, but only if needed. There will be a vote in the other place before these are used, and any SI will be subject to affirmative resolution. To pick up on something the noble and gallant Lord, Lord Stirrup, said in a strong speech, it is now half way to that oven-ready Bill-in-waiting that he felt would have attracted much more sympathy across this House.

Of course, had everything worked smoothly in the exit negotiations, had the EU acted in those negotiations as though dealing with close friends and allies, had the previous Administration been more nimble in defending the UK interest, and could everything be guaranteed to continue to work smoothly, there would be no need to adopt the provisions in Part 5 to which many take exception. Unfortunately, none of those possibilities has yet proven to be the case. Accordingly, as my noble friend Lord Hunt of Wirral and the noble Lord, Lord Skidelsky, said at Second Reading, we should not tie the hands of the Government at this time. We should give them the elastic they need.

I am grateful for the work of the EU Committee, on which I have the pleasure to sit and support the noble Earl, Lord Kinnoull, and the work of its excellent staff on the complexities of the Northern Ireland situation and its special protocol which has helped to inform our debates. The problem—and the reason the Government are seeking the powers in Part 5—stems, I believe, from the unsatisfactory nature of the withdrawal agreement, but only if the EU were to take a disreputable and irresponsible stance. Unfortunately, that possibility cannot yet be entirely excluded. Such a development would make life very difficult for those businesses which operate in Northern Ireland and for goods and food coming in and out over either border. Indeed, today’s debate and the arresting contributions from the noble Baroness, Lady Hoey, and the noble Lord, Lord McCrea of Magherafelt and Cookstown, have heightened my concern about the risks to the Northern Ireland economy and the Belfast agreement.

The joint committee has wide powers to prepare for and sort out any mess but, regrettably, it has not done so. Perhaps it has no intention of doing so while vital and delicate discussions on an FTA continue. Perhaps my noble friend the Minister can report on discussions in that joint committee, where there are concerns or disagreements and whether there is any hope, even now, that the difficulty will be overcome so that the Part 5 provision will become unnecessary.

With the promoters of these amendments having demonstrated their nobility of mind in the earlier discussions at Second Reading, I was hoping for a full discussion in Committee of the wide-ranging powers being taken in Part 5 and not just a rerun of the debate of principle of 20 October. The noble Lord, Lord Pannick, touched on this in his speech and I am sure my noble friend the Minister, when he responds, will address some of our concerns about the breadth of the power. But, today, I think we should celebrate the fact that there was a startling breakthrough on a coronavirus vaccine. I have some hope that there will also be a breakthrough on the FTA with the EU and that Part 5 will not now be needed. In the meantime, I will be supporting the Government.

[Lord Ricketts (CB) [V]]

My Lords, I apologise that I was unable to participate in the Second Reading debate. Many noble Lords this evening have set out with great power and authority the legal, constitutional and moral objections to this Bill. My purpose in speaking is to take a slightly different tack—which may be a good thing at this point in the debate—and to look at the operational damage that Clauses 42 and 47 of this Bill, if enacted, would do to the effectiveness of our foreign policy.

I do that on the basis of 40 years of experience representing this country as a British diplomat. I know at first hand that Britain has been widely respected around the world as the country that evolved the concept of parliamentary democracy and the rule of law and has played such a formative part in developing the body of international law as we now have it, from the Geneva conventions on the laws of war to the International Criminal Court.

My point is that this is more than an issue of the country’s reputation. Our power of example has strengthened our powers of influence in the world. It has given our country the authority to demand that other countries uphold their international obligations. It is part of the reason, for example, that Britain has been able to play such a leading role in the UN Security Council in crafting countless resolutions, holding to account those who break their international commitments and often imposing sanctions on them.

As other noble Lords have said, we are now standing on the cusp of a new American presidency, with a President-elect who is a passionate believer in the rule of law and in resolving disputes between countries through agreement. There is a great deal of important work that we can do together. An early priority with the Biden Administration should be to bring Iran back into compliance with the agreement it signed with the US, the UK and others in 2015. But how can we preach to Iran what we do not practise at home? It would be the worst possible start to the British partnership with a Biden Administration intent on rebuilding institutions of the rule of law if the Government now plough ahead with Part 5 even after Mr Biden has explicitly warned of the dangers. In response to the noble Baroness, Lady Hoey, this is not about pleasing a new US President; it is about effective co-operation with a country that is now, once again, intent on helping to resolve the world’s problems through international agreement.

21:15

I conclude with a specific illustration of the collateral damage I believe would result from keeping these clauses in the Bill—damage that goes far beyond the issue of Northern Ireland or even the UK and the EU. I invite noble Lords to come with me across the road to the Foreign Secretary’s grand office on King Charles Street and to imagine that he summoned the Chinese ambassador to upbraid him on his Government’s crackdown in Hong Kong on fundamental freedoms. The Foreign Secretary would tell the ambassador: “This is a flagrant breach of the international agreement China signed with Britain in 1984 to uphold Hong Kong’s way of life for 50 years.” The ambassador might well say: “I agree; this is a breach of international law in a limited and specific way, but be reassured, Foreign Secretary, it is perfectly legal in our domestic law. The National People’s Congress has legislated to repudiate parts of that 1984 agreement. That is our sovereign right.” How is the Foreign Secretary to respond if these clauses stand part of this Bill and become law? Every other Foreign Secretary would have said “pacta sunt servanda”, and he would have had centuries of British practice behind him to give that weight. What would the current Foreign Secretary be able to say if this became law? “Pacta sunt servanda when it suits us” does not have quite the same ring.

For the sake of Britain’s effectiveness in repairing a rules-based international system grievously damaged over the last four years, in addition to all the other powerful arguments that have been advanced this evening, I shall be voting tonight with the noble and learned Lord, Lord Judge, so that Clauses 42 to 47 do not stand part of this Bill.

[Viscount Trenchard (Con) [V]]

My Lords, I agree with my noble and learned friend Lord Clarke of Nottingham in so far as he praised the speech of my noble friend Lord Lilley twice for its pragmatism. Beyond that, I find myself in agreement with my noble friends Lord Lilley, Lady Noakes, Lady Couttie, Lady Neville-Rolfe and Lord Shinkwin and the noble Baronesses, Lady Hoey and Lady Fox of Buckley, that this Bill, including Part 5, is indeed necessary.

I salute the Government for their good sense in dealing now with the inconsistencies in the withdrawal agreement. It is regrettable that the inconsistencies were not cleared up at the time of signing that agreement, but it was reasonable to believe that the EU’s negotiators would act in good faith in their efforts to reach an agreement on the future relationship that would have solved most of the inconsistencies. It seems that it remains difficult for Mr Barnier and his team to accept that the UK is becoming a sovereign, independent country and will not accept terms that effectively require us to continue to adhere to EU regulations, especially concerning state aid, nor will it accept the jurisdiction of the European Court of Justice in the determination of any part of our agreement on our future relationship or any connected enforcement proceedings.

I do not share the strong negative reaction of many noble Lords to the Government’s introduction of this Bill, for the reason that it seeks to disapply certain provisions of the withdrawal agreement signed by the UK and the EU in September 2019. I would argue that entering into the withdrawal agreement without first agreeing the framework for our future relationship with the EU was in itself a breach of Article 50 of the Lisbon treaty. Does the Minister agree that it could be argued that the signing of the withdrawal agreement and indeed the subsequent enactment of the European Union (Withdrawal) Act 2018 clearly breaches international law?

The noble Lord, Lord Kerr of Kinlochard, was wise to draft Article 50 as he did. I regret that the European Commission ignored its terms and the previous Government acquiesced in their insistence that agreeing the framework for our future relationship should be deferred. This makes it much more difficult to agree the future relationship, as we are now trying to do with very little time remaining before the end of the implementation period. If we had observed the terms of Article 50, a significant part of the provisions of this Bill, especially those that affect the Northern Ireland protocol, would not have been necessary. Furthermore, David Wolfson QC argues convincingly that the sovereignty of the Crown in Parliament means that the Government are bound to proceed with any Act of Parliament even if it should give rise to a claim under an international treaty. Mr Wolfson argues that there would be

“no breach of the rule of law.”

A similar position has been supported by Jolyon Maugham QC, who has argued that parliamentary sovereignty enables Ministers to advise on and recommend, and Parliament to enact, legislation that breaches international law. He observed:

“Whether it is a ‘good idea’ to breach international law”—


by implementing these measures—

is a political judgment”.

The noble and learned Lord, Lord Falconer of Thoroton, said that the passage of this Bill in this form risks making the UK “an international pariah”; many noble Lords have expressed a similar view. However, the whole world knows the UK is still negotiating the basis of its exit from the UK. These negotiations continue; in the event that we fail to agree a free trade agreement, it will be well understood that the Government have a duty to ensure that the integrity of the United Kingdom is protected.

I respect the view of noble Lords who think otherwise, including the noble Lord, Lord Ricketts, but I just do not believe that the UK’s well-deserved reputation for honouring its word will be negatively affected in any way, any more than the German constitutional court’s ruling on the bond-buying programme of the ECB—that European law which conflicts with the German constitution may be overridden—affects the reputation of the Federal Republic of Germany as a well-behaved international citizen. The decision of the Court of Appeal in 2018 in response to the challenge by the Gulf Centre for Human Rights that ministerial duties in international law were not truly legal duties offers another example of the same point.

The noble and learned Lord, Lord Judge, and his co-signatories seek to remove all six clauses that constitute Part 5 of the Bill. This would mean that the ambiguities contained in the withdrawal agreement would endure, and the resulting uncertainty arising from the possible erection of a customs border in the Irish Sea would clearly breach the Belfast agreement. The noble and right reverend Lord, Lord Eames, in his eloquent speech proposing Amendment 161, argued that this Bill would upset and alter the basis of trade within the United Kingdom. I admire the great contribution that he has made, and continues to make, to the peace process. I was impressed by his arguments. However, I noted that he did not acknowledge at all that the Northern Ireland protocol itself upsets and alters the basis of trade in the UK.

I agree strongly with the noble and learned Lord, Lord Mackay of Clashfern, that compliance with the Belfast agreement should be regarded as a part of, and a prerequisite to, the withdrawal agreement. I support Amendments 158 and 159, which would create an additional exclusion from the prohibition imposed by Clause 43, but the reasons for checks following a threat to food or feed safety would be well understood. I understand the intention of the noble Lord, Lord Hain, in Amendments 162 and 163; I sympathise with him. However, other clauses of the Bill already prohibit discrimination against goods produced in any part of the United Kingdom, so his amendments are superfluous. I look forward to the Minister’s comments on these and other measures.

[Lord Howard of Rising (Con)]

My Lords, I have read an enormous amount of very learned opinion, produced by many distinguished members of the legal profession, saying that Part 5 of the present Bill does not break international law—enough opinion to be absolutely clear that, however many people claim that the Bill is illegal, serious doubts remain over the claim that Part 5 is illegal, in spite of the many eloquent arguments for that case that have been put forward this evening.

Whatever view you take of Part 5—illegal or legal—there is sufficient doubt over the rights and wrongs that loyalty to one’s country demands that the wishes of the Government should take precedence over other views. The House should not get in the way of a Bill that will be of invaluable assistance to strengthen the hands of our negotiators in these last crucial days and weeks of the negotiations. The Bill will not make this country some kind of pariah, nor will we lose respect, as some have falsely claimed. The world will see it simply as part of us leaving the European Union.

It is not the role of this House to overturn the wishes of the other place, especially where the grounds for such action, as today, are not clear-cut. Furthermore, the other place has conceded that there must be a vote in Parliament before Part 5 is acted on. The ultimate authority in this country is the Queen in Parliament. It is what the British people have voted for, and we must do everything possible to ensure that this remains the case.

[Lord Morrow (DUP) [V]]

My Lords, I have listened intently for over four hours to all the fine speeches and contributions that have been made in your Lordships’ House today. The Belfast or Good Friday agreement, whichever you prefer, has largely featured; our debate has been dominated by some excellent speeches both for and against it. However, like the noble Baroness, Lady Hoey, I have been asking myself whether Members have actually read the Belfast agreement. I have it to hand. I do not fully recognise in it some of the comments that were made.

I speak to your Lordships this evening from a border town. I could be at the border in 15 minutes. I have lived all my life here. We know what goes on at the border and what has happened in the past 30 or 40 years, with all the activity that has carried on there. I listened intently to the two excellent speeches of my colleagues, the noble Lords, Lord Dodds and Lord McCrea. They have something in common: they are both survivors. The noble Lord, Lord Dodds, had an attempt on his life when he went to visit his very sick son in hospital. The noble Lord, Lord McCrea, knows what it is to have his family home spread by automatic gunfire in an attempt to wipe out him and his family. So we know all there is to know about the border. Do any of us want to go back to those days? Absolutely not. Today, we have heard the lawyers and the philosophical arguments but all we want is a practical, common-sense solution. If a noble Lord can point out to me what is wrong with that, I will be ready to listen.

My remarks this evening will focus on Amendment 161 in particular. Although it reads okay, it is a contradiction of other parts of the Bill. My party has no objection to the content of the amendment, but it is important that there is continuity throughout the Bill. It is totally contradictory to insist on this type of amendment to this clause but to tolerate similar clauses elsewhere in the Bill.

21:30

Northern Ireland should be treated as an integral part of the United Kingdom in all respects. It has to be said that there appears to be an attempt to orientate and assimilate Northern Ireland with the Irish Republic, despite assurances in the Belfast agreement that change in the constitutional position of Northern Ireland will come only when there is consent from the people of Northern Ireland. Europe and others seem to have the mindset that the unionist community is of lesser importance than the nationalist community. Let me be very clear: as a unionist, I do not fear a society of equals—but I do not want a society where some are more equal than others.

Much has been said in debate in your Lordships’ House over recent years and today about a hard border between the Republic of Ireland and Northern Ireland. We have constantly been told that there would never be a border, whether in the Irish Sea or a land border. However, when I read my morning paper, I am not reassured. With less than eight weeks to go until the transition period ends, the Government are furiously at work putting in place the border that we were told would never happen. It is reported that within two years a £200 million project will be completed. Those who have been lobbying and pushing for no hard border have in fact been most instrumental in creating what allegedly they do not want.

The freight industry is extremely concerned—in my opinion, with some justification. Unfettered trade between Britain and Northern Ireland has been put in jeopardy by Europe and by those who shouted the loudest against a hard border. I hope that they will reflect and see the consequence. It should be stated that 65% of the goods that Northern Ireland purchases come from GB. The best way to sustain peace is through a buoyant economy, which in turn underpins stability.

We have heard again today that there is a threat to the Belfast agreement. Is it not ironic that those who were directly involved in negotiating and creating the agreement are not saying this? Incidentally, as I said earlier, I live a matter of minutes’ drive from the border. I suspect that a lot of your Lordships who are speaking this evening have never been to the border, so I speak with some knowledge. Are we now to have government by threat? Some in your Lordships’ House are in that mood: if you do not accept what is thrown at you, there is worse on the way. I implore the House to retain Part 5 of the Bill.

[Lord Naseby (Con)]

My Lords, I am not a lawyer. Nevertheless, I am in my 47th year in Parliament, of which 23 were as the Member of Parliament for Northampton South. My first majority was 179. As an aside, bearing in mind what has been happening in the States, on the first count I lost by 183. On the second count, I won by seven and on the third count by 179—so who knows what might happen in the States?

In 1979, I was honoured to be a Parliamentary Private Secretary in Northern Ireland. It was a delightful two years, I have to say. It taught me patience and understanding, and it taught me to understand the sensitivities and, above all, the commitment of the vast majority of the citizens of Northern Ireland to the United Kingdom.

In May 1992, I was proposed, unopposed, to be Chairman of Ways and Means and Senior Deputy Speaker in the other place. A couple of months later, I found myself facing the Maastricht Bill—one of the two longest Bills on the Floor of the House since the war. There were 500-plus amendments and four clauses. It was on the Floor of the House for 25 days, including three all-night sittings.

Three principles drove me and my two deputies. First, there should be no tedious repetition—I wonder whether that should not be included in your Lordships’ House. Secondly, the House should make progress. We did, but we only had four clauses. Above all, the clerk said to me, “You have to remember, Michael”—I was Michael Morris then—“that the basic principle of our constitution is that ultimate sovereignty lies with the Crown in Parliament”. She drilled that into me and I have never forgotten it. It is that sovereignty to which the Government are answerable and which the rule of law upholds.

Bearing in mind this debate, during the weekend I decided to investigate in depth the legality of any Government introducing any Bill that may or would breach a treaty obligation. As it happens—because I have a few friends in the law—my attention was drawn to an article written by a highly respected QC, David Wolfson. On 10 September, he wrote an article in the Spectator. I will quote from one or two paragraphs. He says:

“The mere act of laying a bill before Parliament which, if it were passed into statute, would breach a treaty obligation (and would amend domestic legislation bringing that treaty obligation into effect in domestic law) is not itself a breach of the treaty or of international law. Nor would merely laying such a bill be itself a breach of the rule of law.


“If the legislature passed such a bill and it became an Act of Parliament, the rule of law requires the Government to proceed in accordance with it. That is what parliamentary sovereignty, or to be more precise the sovereignty of the Crown in Parliament, means. Whether passing such an Act of Parliament gives rise to a claim under the treaty ... is a separate issue. But again, there is no breach of the rule of law.


“And what is the alternative proposition? That a government is precluded by the rule of law from even laying a bill before parliament which, if passed, would put the UK in breach of a treaty obligation? Or is it to be said that the rule of law requires that such an Act of Parliament should itself be deemed by our courts to be unlawful or of no consequence?


“I see no legal basis for any such proposition. Such a bill and resultant Act of Parliament might be unwise or foolish or damaging to the UK’s interests (or wise or clever or a show of strength)—those are matters of political debate. But those are not legal questions. Nor can it make any principled difference to the analysis that—to take two points which have been made repeatedly over the past few days—the treaty in question was signed recently, or by the same government.”


Contracts—yes, they should be honoured. He says so and I believe that they should. I understand that there is a phrase: “pacta sunt servanda”. I had some difficulty passing O-level Latin. But a breach of contract does not of itself entail a breach of the rule of law. I certainly learned that in the commercial world. Breaching a treaty obligation because Parliament has so legislated does not do so either.

So none of this is to suggest, as some still say, that international law does not exist, nor that treaties do not matter. Of course it does—and they do. But for their part, the Government will argue that preventing part of the territory of the UK from being cut off economically justifies their approach, and I—and I suspect the vast majority of the British people—totally concur.

I also found out over the weekend, because I take a great interest in aeronautical matters, that Boeing is challenging the EU in the World Trade Organization court for breaking state aid rules regarding Airbus. To go back to the QC, he asserts

“a more basic—and (at least formerly) orthodox proposition: in our constitution, ultimate sovereignty lies with the Crown in Parliament. It is that sovereignty to which the government is answerable, and which the rule of law upholds.”

He then says quite clearly:

“I do not consider there is a breach of the law in the Government’s approach”


and, frankly, nor do I.

People are saying that we must remind ourselves occasionally that we are not the elected House. Some of us have had the privilege of serving in the other place. They have that responsibility, not us. We are a revising Chamber, and we should do so properly. At this juncture, I see no evidence that my Government are in breach of the rule of law.

The people of Northern Ireland require our understanding. I was so grateful to listen to the speech from a former friend, the noble Baroness, Lady Hoey, who has joined us.

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interests, as set out in the register. I am very pleased indeed to follow my noble friend Lord Naseby. How right he has been to remind us, through his ministerial experience in Northern Ireland and by quoting the article by David Wolfson QC, of the importance of the issue of Northern Ireland, which has been evidenced by some very powerful speeches.

Even at Second Reading, as we discussed the underlying principles of this Bill, our focus was heavily drawn to Part 5. The principle underlying it is very clear: it sets out powers and requirements which I am sure that all of us, including the Minister, hope will never come into play. The intention—and this is a point of vital importance, especially as the Brexit trade negotiations enter the final furlong—is to send a clear signal about what is ultimately acceptable to the United Kingdom and what is not.

The term “backstop” has been deployed somewhat excessively during the protracted Brexit process, but this part of the Bill is just that—a backstop. It is no secret that I have always seen the democracies of western and central Europe as allies and friends— our most proximate and, increasingly, our most important allies and friends. The new Administration in the United States, when President-elect Biden takes office in January, will also very much want to see us in that context. None the less, in any negotiation, even with good friends and allies, it is vital to be absolutely clear from the outset, and consistently thereafter, about any “red lines”, any “lines in the sand”, or however else one might term points that are simply off limits and non-negotiable.

The Good Friday agreement, which I avidly support, acknowledges that Northern Ireland is part of the sovereign territory of the United Kingdom. The clear implication must surely be that Northern Ireland is, and shall remain, fully integrated into the UK single market.

21:45

These clauses may make us uneasy; they may propose powers that unnerve us or cause us to feel distaste. They also remind everyone involved in the Brexit trade negotiations, on all sides, just how high the stakes are and what is and is not acceptable to Her Majesty’s Government. As I said, I am a stout defender of the Good Friday agreement. I also fervently hope and believe that the Brexit trade talks will bear fruit in the best interests of the United Kingdom and our many friends who remain within the European Union. It is my clear understanding that this has been the approach taken consistently with this Bill by my noble friend the Minister and his colleagues. At this moment of historic significance, they need our steadfast support. If we in this House withhold that support, I fear we may be playing with fire.

[Lord Fox (LD)]

My Lords, it is a great honour to be speaking towards the end of this long debate, in which so many distinguished, wise and opinionated speakers have held forth. This debate complements the one we heard at Second Reading, which ended with an overwhelmingly large regret vote. Today, we have heard the legal reasons for objecting to Part 5 of the Bill. They were set out clearly by the noble and learned Lord, Lord Judge, and have been supported by legal Peers and others across the Floor. We also heard speeches explaining the effects of this Bill across the island of Ireland; I was particularly moved by the words of the noble and right reverend Lord, Lord Eames.

I am going to look elsewhere and focus on the politics, my subtitle being: “What were the Government thinking when they drafted this Bill?” It is a rhetorical question as I do not expect the Minister to answer. In today’s media round, Ministers were sent out to plug No. 10’s messages, one of which was that this Bill gives legal certainty. Well, it is certainly illegal but, as we heard very eloquently from the noble Lord, Lord, Carlile, the only certainty it brings is that the UK cannot be trusted.

We heard at Second Reading how little faith the EU had in the Prime Minister even before he climbed over and clawed past his predecessor to become Prime Minister. This Bill now confirms the European Union’s view and cements its distrust of the negotiation process. Does the Minister suppose this distrust has made sealing a UK-EU trade deal easier or harder? If it were going to help, we would, I suggest, have seen some movement by now; yet we still do not have anything that even this shameless Government can dress up and brand as a deal.

As we have heard, there is now a seismic shift across the Atlantic where the ground is getting very shaky for the PM. He is losing his perilous foothold and scrambling around as the UK slips down the future President’s to-do list. We should not be surprised. A law-breaking Government might have impressed President Trump but, when there is an Irish-American President in waiting, this Bill is not a good look. George Eustice, sent out this morning to shield the Prime Minister, was quick to say that if Joe Biden had read the Bill, and not just reports of the Bill, everything would be all right. This is patronising. It is patronising to the future President of the United States, a man who has always taken a very close interest in Irish issues, and it is not only patronising but wrong. When the President-elect read this Bill, he saw what we see: a direct undermining of the Good Friday/Belfast agreement.

In political terms, this Bill threatens the EU and US free trade deals—the Government’s two stated paramount trade objectives—and it threatens the stability in Ireland, one of the great political achievements in my lifetime. It is not just bad law; it is absolutely terrible politics.

In a few minutes, I expect the Minister to mount a defence. He will claim that Part 5 of the Bill is vital, which my noble friend Lord Newby dealt with very eloquently. I doubt that the Minister will repeat the Northern Ireland Secretary Brandon Lewis’s statement that this Bill will break the law because—and I am sorry to Members opposite, all of whom appear to be non-lawyers pronouncing on the law—it is the Government’s settled position that this breaks the law. In this regard, I am happy—or unhappy—to say that the Government are right: Part 5 allows the Executive to break the law, when they choose and without restraint. That is why the whole of Part 5 comprises a legal affront, which is a huge political mistake.

The Committee will shortly be asked whether we want Clause 42 to stand part of the Bill. Noble Lords on these Benches will be voting “Not content” when that question is put, and we will continue to vote “Not content” when each clause is put forward. It is wrong and we are not content that the Government should bring the whole country into disrepute, not content that we should cede political leverage in the world at large, and not content with the wider implications of Part 5, not least on the island of Ireland.

[Lord Falconer of Thoroton (Lab)]

It is a pleasure to follow the noble Lord, Lord Fox, who has been a tower of strength throughout the course of this very complicated Bill. I join other noble Lords to express my deep sorrow at the untimely death of Rabbi Lord Sacks, who made a very major contribution to thought, spirituality and life in this House.

The noble Lords, Lord Howard of Lympne, Lord Empey and Lord Pannick, the noble and learned Lords, Lord Clarke of Nottingham, Lord Mackay of Clashfern and Lord Judge, the noble Baronesses, Lady Ritchie of Downpatrick and Lady Bennett, all Labour’s Members, all the Lib Dems, the noble and right reverend Lord, Lord Eames, the noble and gallant Lord, Lord Stirrup, the right reverend Prelate the Bishop of Leeds and the most reverend Primate the Archbishop of Canterbury constitute, by any standards, a pretty broad church—broader than you normally see in this House. Sadly, none of them is Marcus Rashford and therefore guaranteed to get a U-turn. Nevertheless, they are a powerful group and all say the same thing: first, pull back from making the United Kingdom an international law-breaker; and secondly, do not threaten to break the Northern Ireland protocol, which ensures an open border on the island of Ireland and promotes peace through the Good Friday agreement.

Today, tomorrow and in the weeks, months and years to come, the United Kingdom will depend on our international relations with the United States of America, the European Union and the rest of the world for security and trade, to fight the climate emergency, to co-ordinate the search for and distribution of a vaccine, to fight this and future pandemics and to co-ordinate the world’s response to the massive economic downturn we are in. We will need international agreements to do it. It is hard to imagine an act more damaging to the United Kingdom’s national interest than to place the UK beyond the pale of law-abiding nations, which is what the Government wish to do.

I strongly urge the Government to take the lifeline that the House of Lords is offering and accept that these law-breaking clauses were a mistake. The Government should say that these clauses will never again see the light of day. Please think about what the Government are embarking on with these clauses. If a free trade agreement and a settlement of the Northern Irish protocol issues are reached, then these clauses would never be needed. Suppose the Government do not reach agreement on free trade and the operational actions of the Northern Ireland protocol. If these clauses were ever used, they would guarantee, as President-elect Biden has said, that the United Kingdom would go to the bottom of the pecking order in Europe with the United States of America.

We have gone from popular United Kingdom to Billy No Mates in 10 weeks from 8 September as a result of the publication of this Bill. What is the justification for this disastrous proposal? Three have been given in the course of this debate. First, the noble Baronesses, Lady Hoey and Lady Fox, and the noble Lords, Lord Dodds, Lord McCrea, Lord Lilley, Lord Moylan, Lord Shinkwin and Lord Morrow, all gave variations on an argument that the Northern Irish protocol is a bad deal and they wished it to be renegotiated.

I respect those who did not like the Northern Irish protocol but it was entered into by the House of Commons with its eyes open. The House understood that the effect of the protocol was that to secure an open border, goods coming from Great Britain to Northern Ireland had to be checked to ensure that they complied with the single market regulations. Only in that way could the Republic of Ireland be sure that goods coming through the border would comply with the rules of the single market and you would not need a border as a result.

People may not like that. They may think that the checks that take place between Great Britain and Northern Ireland are inimical to the idea of Great Britain and Northern Ireland staying together, but that was the choice that the Parliament of this country made. A number of noble Lords said that democracy and parliamentary sovereignty justify this, conveniently forgetting that it was parliamentary sovereignty that led to the United Kingdom signing up to these international agreements. It was this Parliament that decided it and any call to parliamentary sovereignty is so misguided.

The second proposition advanced is that democracy demands that we allow this agreement, the Northern Irish protocol, to be broken. We are lucky to have in the House of Lords people who tell us how democracy should be interpreted. The December 2019 general election involved the winners, the Tory party, saying, “Agree to the withdrawal agreement and let us get Brexit done.” The country agreed to that. It agreed to the agreement that currently exists, not one that is about to be changed. The imprecations that we should be entitled, as a matter of parliamentary sovereignty or democracy, to change the agreement are very misguided.

22:00

The second group of those who defend what is happening are those who say, “Actually, there is no law-breaking.” The noble Lords, Lord Naseby and Lord Howard of Rising, who is, sadly, not in his place, and the noble Baroness, Lady Couttie, made plucky efforts to say there is no law-breaking. Your Lordships will recall the much missed noble and learned Lord, Lord Keen: he suggested there was no law-breaking, and he got a pretty bloody nose from the Government for that. He was told that was wrong, because Brandon Lewis was sent out to assert yet again that there was law-breaking, as he proudly said. I will accept the word of the Government themselves that there is law-breaking, and not those of their defenders who say that there is not.

[Lord Lilley (Con)]

Would the noble and learned Lord accept—

[Noble Lords]

Order!

[Lord Falconer of Thoroton (Lab)]

Anybody who says there is no debate in this place because we are complying with the coronavirus rules is very misguided and rather cross.

The third line of defence comes from the noble Baronesses, Lady Neville-Rolfe and Lady Noakes. They say, “This is just a sensible protective measure. Suppose there was to be a breach subsequently: here we are—it is in place”. I have no sympathy with that view at all, for two reasons. First, there is not a sliver of evidence that the European Union is not acting in good faith. One would have expected it to have been produced by the Government if that was the case. Secondly, the points that both noble Baronesses relied on are not covered by the terms of the internal market Bill. The at-risk provisions, for example, are not available to the Government to correct by the terms of the internal market Bill. There was a reference to the fact that they might be covered subsequently by the Finance Bill but, as the noble Baronesses know, there is to be no Finance Bill this year. Their defence has no foundation in fact.

I really hope the Government see sense quickly. This part of the Bill is the most massive own goal, but it is much more than simply the operational aspects. At its heart, this Bill breaks faith with one of the most fundamental parts of our constitution: the rule of law. It is not just the appalling position it leaves us in in the world; it is what it says about us, the United Kingdom. I proudly defend and believe in the values of my country. The rule of law protects each one of us, rich or poor, strong or weak, from all forms of oppression. We should not be, to use the words of the noble and learned Lord, Lord Judge, “complicit or supine” in this toxic, casual, un-thought out, arrogant abandonment of our values. We should vote against every one of those vile clauses in Part 5 tonight and, if necessary, again and again, to persuade the Government that this should never become part of our law.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I too begin by humbly paying my own tribute to Lord Sacks. His reflective witness to faith was, and will remain, an inspiration to very many people he never knew.

As your Lordships are unusually, as I understand it, intending to terminate all discussion on these clauses in Committee; and as some, including the noble and learned Lord, Lord Falconer, opposite have somewhat brazenly—some people in the other place may consider—stated that this House may not be prepared to consider them again if invited to do so; and as, unusually for your Lordships’ House, some of these clauses have not been considered in detail, your Lordships must forgive me if I take some time to explain the rationale. I would, of course, like to thank all those who have contributed to the debate; although I agreed with the minority rather than the majority, I have listened carefully to them all and respected them all.

Lest there be doubt, let me put it beyond peradventure. The United Kingdom has stood, does stand and will stand behind the Belfast/Good Friday agreement. Nothing in this Bill is conceived to undermine that agreement. The United Kingdom Government intend no change to the status of Northern Ireland. The United Kingdom Government will never seek or support a hard border on the island of Ireland.

Equally, the United Kingdom Government will never accept that a foreign power, in the form of the EU, could unduly disrupt the free movement of goods within the United Kingdom’s customs territory. It is solely and specifically against such an unwanted, disproportionate and unnecessary potential intervention that the parts of this Bill, to which so many of your Lordships object, are designed. They are designed, as the minority of speakers in this debate—who were listed by the noble and learned Lord, Lord Falconer—have noticed, to protect east-west links, with full respect for the interests of the EU to maintain its single market, and designed to protect the basis of the Belfast agreement.

There has been significant and robust debate about Part 5, both in this House and the other place, ended with an extremely robust statement by the noble and learned Lord, Lord Falconer. The debate has focused predominately on the safety net or backstop provisions in Clauses 44, 45 and 47. However, Part 5 of the Bill contains crucial provisions which are not safety net provisions but protections that we want to apply in all eventualities. These provisions safeguard Northern Ireland’s place in the United Kingdom’s customs territory and legislate for unfettered access for Northern Ireland goods to the rest of the UK market, which is clearly provided for under the protocol. They also codify in legislation the existing practice where state aid is notified to the European Commission by the Foreign Secretary via the UK mission in Brussels.

I understand that some noble Lords intend to divide the House to remove the whole of Part 5, and the noble and learned Lord, Lord Judge, made that clear today. However, if we go to a Division, there will be at least two groups with different issues. As your Lordships consider your votes, I urge each of your Lordships to consider each clause on its merits, and consider the signal that striking each out might send to the people of Northern Ireland. I listened carefully to what the noble and learned Lord, Lord Judge, said, and I could not hear a case made for a link between Clauses 42 and 46 with what he sees as the offending clauses. I therefore do not see how they are dependent on one another.

As for Clause 43, I must disagree with the noble and learned Lord. I am clear that it stands entirely on its own as a means of safeguarding unfettered access to the UK market. This Government have repeatedly committed, and remain committed, to precluding checks or controls on qualifying Northern Ireland goods to the rest of the UK market. This is what the Northern Ireland Executive have asked for, what Northern Ireland businesses right across the spectrum from agri-food to manufacturing have asked for, and what the withdrawal agreement preserves and protects. Helping to give that effect is the sole purpose of Clause 43. It was not drafted to be interlocking or interdependent with any other clause in the Bill. If no other clause in this Bill were passed, the Bill would be able to function and stand alone as a means of protecting access for Northern Ireland businesses to—as we have heard—their most important market. To that end, while it does refer to Clause 47 in Clause 43(3)(b), that is only as part of spelling out that the clause in fact allows checks where applicable international obligations require them.

Given the broad support in Northern Ireland for unfettered access to their businesses’ most important market—and I hope that noble Lords have been listening to the speeches made by some of those who are here from Northern Ireland—it would be hugely disappointing for them and for businesses in Northern Ireland if noble Lords were to remove them unduly.

Before coming to the main argument, let me address briefly amendments in this group which would fall if the clauses in Part 5 are removed by your Lordships. First to fall will be Amendment 161, tabled by the noble and right reverend Lord, Lord Eames. I am grateful for having been able to discuss these issues with both the noble and right reverend Lord and the right reverend Primate. Their amendment would require the Secretary of State to publish a statement on the impact on peace and reconciliation in Northern Ireland before regulations on export declarations and other exit procedures under Clause 44 can be made. As I have just underlined, central to any exercise of those powers would be our aim to ensure that the political and economic integrity of our whole United Kingdom is maintained, and that the Belfast agreement and successor agreements and the gains of the peace process are protected in all potential circumstances.

Above all, I so agree with the most reverend Primate and the right reverend Prelate that we must ensure that the delicate balance between all communities in Northern Ireland is maintained and the UK Government pursue policies for sustained economic growth and stability in Northern Ireland—the best route to sustaining peace, as the noble Lord, Lord Morrow, just reminded us. The statement that these have always been, and will remain, the Government’s priorities applies to all clauses of this Bill, not just Clause 44. Therefore, the Government do not consider it is necessary for this further step to be introduced, but we fully appreciate and endorse the motives and concerns of the opposers so powerfully spoken to by the noble and right reverend Lord, Lord Eames.

Amendments 158 and 159, introduced by my noble friend Lord Callanan, would ensure that the UK Government and the devolved Administrations can continue, as they do now, to respond to serious threats to the health of people or animals, a principle already reflected in Schedule 1. I trust that the House will accept the principle of these important amendments to protect people and accept that they are necessary for the health and safety of us all. They will fall today if your Lordships remove Clause 43.

I turn to Amendments 162 and 163 in the name of the noble Lord, Lord Hain. The Government agree with the noble Lord’s aims, and I hope that I can provide reassurance that the Bill already provides the protection he seeks. We are unequivocally committed to delivering unfettered access for Northern Ireland goods to the UK market. The Bill, unless that protection is struck out by your Lordships today, prevents any new checks or controls on those goods, thus ensuring that Northern Ireland goods have unfettered access—and, of course, those goods will not be subject to tariffs.

We are also working with the Northern Ireland Executive and businesses to ensure the next phase of the regime, which will come into force during 2021, focuses benefits specifically on Northern Ireland business, again as the noble Lord, Lord Hain, and his supporters are asking. The amendment aims at much the same outcome as the Government does, but I submit that the benefit of our approach is that we can ensure unfettered access without burdensome requirements on business and do so as part of the regime that applies right across the United Kingdom.

On Amendment 163, again I recognise the noble Lord’s aims, but this amendment would risk tying the Government’s hands on how best to support businesses trading between Great Britain and Northern Ireland in future. The trader support service is, as the noble Lord’s amendment asks, free at the point of use and is part of the extensive programme to support businesses impacted by these new processes. While we have set out that it will be reviewed after two years, I assure the noble Lord, Lord Hain, and the noble Baroness, Lady Suttee, that this is by no means a guillotine on its operation. Legislating prior to review would not be best practice; circumstances will evolve, impacting the nature and best focus of any support that may be required. I hope that the points I have made provide assurance that these amendments are unnecessary. While we are ready for further engagement, I hope the noble Lord feels able not to press his amendment.

I turn to Amendments 179 and 180 in the name of my noble friend Lady McIntosh of Pickering, which seek to amend Clause 56 in Part 7 to ensure your Lordships’ House, as well as the other place, would be required to approve a Motion before Clauses 44, 45 and 47 can commence. The process provided for in Clause 56 operates in line with precedent that has been set in recent years for significant votes, such as the meaningful votes on the previous Prime Minister’s withdrawal agreement and votes on military action, such as the Syria vote in 2013. It ensures—and I hope my noble and learned friend Lord Clarke of Nottingham has read the Bill—that a mandate from the democratically elected House should be the basis for proceeding or not while respecting the important voice this place should have in a take-note Motion. That is the right balance, and I ask my noble friend not to press her amendments.

I return to the core of the debate: the view of many of your Lordships that Part 5, considered, amended, approved and sent to us by the elected House, has no place in this Bill. The Northern Ireland protocol is clear that Northern Ireland is part of the UK customs territory, and our manifesto was clear that we would

“maintain and strengthen the integrity and smooth operation of our internal market”.

Clause 42, which the noble and learned Lord, Lord Judge, declared “contaminated”, delivers on that commitment. The Bill requires that, when exercising functions relating to implementation of the protocol or movement of goods within the United Kingdom, all authorities must have special regard to three fundamental matters:

“the need to maintain Northern Ireland’s integral place in the United Kingdom’s internal market … the need to respect Northern Ireland’s place as part of the customs territory of the United Kingdom; and … the need to facilitate the free flow of goods between Great Britain and Northern Ireland”.

Article 6 of the Northern Ireland protocol states:

“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.”


This clause delivers on those provisions in the protocol, in our Command Paper in May and in the Government’s manifesto. I see no contamination; I see clarity. In my judgment, it would be a serious matter for your Lordships to remove it.

22:15

On Clause 43, the Government have repeatedly committed to legislate for unfettered access for Northern Ireland’s businesses, as the noble Lord, Lord Dodds, reminded us, in the New Decade, New Approach agreement to restore the Northern Ireland Executive, in our Command Paper in May and in the manifesto on which this Government won the last election. Your Lordships will no doubt be mindful of the need to respect that. It is also in accordance, as with other clauses in Part 5, with the fundamental principles of the Act of Union. Clause 43 gives effect to this commitment by prohibiting the introduction of new checks and controls on Northern Ireland goods. There will be very limited exceptions to its application—for example, to protect endangered species, as now.

Unfettered access is something that the Government have constantly promised. It is critically important to the businesses and people of Northern Ireland, protecting access to their most important market. As the noble Lord, Lord Dodds, reminded us, it is worth £8.1 billion in sales each year. I am mildly surprised that anyone in this House should disagree that unfettered access for Northern Ireland goods to the rest of the UK market should be provided for. Clause 43 provides for it.

I share the astonishment of some who have spoken that this House—the unelected House—should require Her Majesty’s Government to repudiate the commitment in this Bill to unfettered access, on which they have pledged to legislate. Again, it would be a serious matter for your Lordships to remove it. In my submission, and as have heard in the debate today, it would send a disquieting signal to many in Northern Ireland. I hope that the noble and learned Lord, Lord Judge, has listened to the noble Baroness, Lady Hoey, the noble Lords, Lord Dodds and Lord McCrea, and many others, and will reflect on this before inviting the Committee to remove Clauses 42 and 43 from the Bill.

Some have argued today that the Government are ignoring the protocol or wilfully dishonouring an agreement. That is not the case. We are committed to implementing the withdrawal agreement and the Northern Ireland protocol, and indeed have already taken many practical steps to do so. I give the assurance to my noble friend Lady Neville-Rolfe that we are working with the EU in the joint committee to resolve outstanding issues arising from the protocol. As the Prime Minister has set out, our approach will be one of reasonableness, common sense and balance—that word again—and we will persevere in that spirit. However, as a responsible Government, we cannot allow the gains of the peace process or the economic integrity of the UK’s internal market to inadvertently be compromised.

Clause 44, together with Clause 47, is necessary to ensure that we can give effect to the Government’s undertaking to provide full, unfettered access for Northern Ireland goods to the whole of the UK internal market. The Bill allows for this. There is no secret: it is there on the face of the Bill by providing a safety net power to disapply or modify any requirement for export declarations or other export procedures when goods move from Northern Ireland to Great Britain.

We hope never to have to make such regulations, and recognise the significance of such a step and the issues raised today by many noble Lords—although I submit that to compare the conduct of Her Majesty’s Government to that of communist China is unacceptable. That is why, before this clause is commenced, the other place will be asked specifically to approve a Motion to that effect and this House will hold a debate. Any regulations made under this clause would be subject to the affirmative or “made affirmative” procedure, meaning that they will be subject to debates requiring a vote in both Houses, including your Lordships’.

However, we must ensure that, in any scenario, we are upholding the economic integrity of the United Kingdom, including the Belfast agreement and the gains of the peace process, and protecting the delicate balance between communities in Northern Ireland. The Government believe that this clause is a limited and reasonable step which, along with Clause 47, creates a safety net to enable those aims to be met. It ensures that the UK Government can act as necessary, if a negotiated outcome in the joint committee should not be possible.

Clause 44 is in keeping with what the Government, including the Prime Minister, have repeatedly pledged, with our manifesto and with our commitments to the people of Northern Ireland. We have heard today from many noble Lords about how important these commitments are to the people of Northern Ireland, and it is for these reasons that I ask your Lordships not to strike them from the Bill.

Clause 45 has been designed to give the Secretary of State the ability, should it be required, to ensure that there is no confusion or ambiguity in UK law about the interpretation of Article 10 of the Northern Ireland protocol on state aid. The Government consider it necessary to be able to provide a domestic interpretation of this article and help public authorities navigate these complex rules.

There is no question—and of course I recognise the disappointment of the noble Lord, Lord Dodds—but that state aid rules will apply in Northern Ireland, as agreed. However, there are risks that a broad and, in our judgment, unreasonable interpretation by the EU of Article 10 could give the European Commission extensive jurisdiction over subsidies granted in the rest of the UK—the concept of “reach back”.

We intend to reach an agreement with the EU, in good faith, about the operation of Article 10. It will be our overriding priority but, given the risk that a sensible approach is not agreed, we must have the ability, as my noble friend Lord Moylan and other noble Lords argued, to create a safety net in the form of regulations to provide legal certainty that avoids any risk of an extreme or irrational interpretation of the protocol. Without the regulations provided for in Clause 45, clarity on the scope of Article 10 would arise only over time, once the Commission’s approach had become apparent and been tested in the European courts. That is not acceptable to the United Kingdom Government and would not respect the clear decision of the British people that the UK should be an independent nation controlling its own laws.

Furthermore, a period of uncertainty would be in no one’s interest. We must be able to set clear parameters for Article 10 to ensure consistency and certainty for investment decisions across the UK from 1 January 2021. The proposals are necessary and proportionate, given the unique circumstances of Article 10. I urge your Lordships not to turn a blind eye to the potential threat to UK business and not to strike down this clause.

I turn to Clause 46. Under state aid rules, notification is the process through which EU member states inform the Commission about state aid or potential state aid. Exactly the same process will continue to apply from 1 January, but in relation only to the limited circumstances where Article 10 of the protocol applies. Clause 46 simply establishes in law that no one but the Secretary of State may notify the European Commission of state aid or potential state aid. It merely codifies in legislation the existing long-standing practice. It is non-contentious and will ensure that a uniform approach to state aid elements in the Northern Ireland protocol is taken across the United Kingdom. Again, I trust that the noble and learned Lord, Lord Judge, will not press his objection to this clause standing part of the Bill.

I turn to Clause 47, and of course acknowledge the concern of many noble Lords who have spoken. I have explained in detail that Clauses 44 and 45 set out potential powers for Ministers to make regulations as a safety net if we cannot reach agreement in the joint committee with the EU. That safety net can operate with full effectiveness only if those regulations can have effect notwithstanding any relevant international or domestic law with which they may otherwise be incompatible or inconsistent.

That is why Clause 47 is necessary. It provides that all-purpose safety net so there can be no confusion about the position in domestic law for our courts, businesses and public bodies. For the avoidance of doubt, I repeat that we are fully committed to implementing the withdrawal agreement and the Northern Ireland protocol, and have already taken many practical steps to do this. However, as a responsible Government, we cannot allow the gains of the peace process or the economic integrity of the UK’s internal market to be inadvertently compromised by harmful legal defaults in the protocol.

As the Government have made clear, they will ask Parliament to support the use of these provisions in the Bill and any similar subsequent provisions only in the case of, in the Government’s view, the EU being engaged in a material breach of its duties of good faith or other obligations and thereby undermining the fundamental purpose of the protocol. The Government’s statement of 17 September confirms that, in parallel with the use of these provisions, they would always activate appropriate formal dispute settlement mechanisms with the aim of finding a solution through that route.

The rule of law is a fundamental element in our constitution, but so, as many have argued today, is the principle of parliamentary sovereignty. It is entirely proper and constitutional, and in line with the principle of parliamentary sovereignty, that Parliament may legislate in a manner inconsistent with international law. That is an age-old principle underpinning our constitution. I say to the noble Baroness, Lady Fox of Buckley, that being laughed at by the Liberal Democrats in only her third speech in your Lordships’ House does not mean that she is wrong; I have tried it about 300 times.

Returning to this fundamental point, our constitution allows for the possibility of inconsistency between domestic and international law. Tensions may arise. It is important not to conflate the two. We are very clear that we are acting in full accordance with UK law and the UK’s constitutional norms. International law is separate and operates on a different plane. Under domestic law, any inconsistency is resolved, entirely properly, as my noble friend Lord Naseby argued, by parliamentary sovereignty.

It is permitted for any Government in pursuit of the national interest—and there is a national interest engaged, as I argued at Second Reading, in relation to the tying of the Government’s hands in negotiation and the importance of the union and the Belfast agreement—to ask Parliament to legislate to authorise their acting in a manner that would then be lawful in domestic law, even if unlawful in international law. As my noble friend Lord Lilley powerfully stated, this is the dilemma addressed by many nations. I will be interested in the response of the noble and learned Lord, Lord Judge, to the challenge my noble friend threw down.

There is one further amendment in this group: a challenge by Her Majesty’s Opposition—we have not even discussed it today, and it will go undiscussed if rejected—as to whether Clause 52 in Part 7 of the Bill should stand part. The Northern Ireland protocol, as the noble Baroness, Lady Hoey, the noble Lord, Lord McCrea, and many others reminded us, has the democratic principle of consent at its heart. Many of the special arrangements in it remain in place only as long as the representatives of the people of Northern Ireland vote to continue them. Democratically elected local politicians will decide its future in consent votes that can take place every four years. The Bill ensures that, so long as the special arrangements for Northern Ireland set out in the protocol apply, these will be reflected in the legislative framework for the UK internal market. However, the protocol itself is not codified as a permanent solution and the domestic legislation which implements it should surely reflect that.

22:30

Clause 52 is a necessary practical step to account for and respect the democratic principles enshrined in the protocol. It disapplies certain provisions of this legislation in the event that Northern Ireland’s elected representatives resolve, under the protocol consent mechanism, that Articles 5-10 should no longer apply. I had understood that this principle was accepted by the Labour Party, so I ask the noble and learned Lord, Lord Falconer, not to press his consequential amendment in this group.

I apologise for the length of this response but I felt it appropriate, given the importance of these clauses. I call to your Lordships’ minds the importance of degree and proportion. To strike out these clauses, in Committee, with little discussion of the detail, would be an unusual step, relating as they do to the fundamental principles of the Belfast agreement, east-west trade across the sea and how your Lordships’ action might be received by a large part of the Northern Ireland population. They also relate to national sovereignty, to the right of any nation to resist the unreasonable pretensions of others to impede internal trade, and to the delicate position of Her Majesty’s Government in seeking to defend our common national interest in ongoing negotiations of vital and lasting importance. Striking them out in toto at the first opportunity would, I submit, not be proportionate to the potential risk perceived by some noble Lords.

I have heard many noble Lords focusing today through what seemed to be one end of the telescope about the potential contingent powers we are proposing to take to react to potential coercive interference in our kingdom. Too many have failed to look through the other end of the telescope. As the noble Lord, Lord Morrow, and the noble Baroness, Lady Hoey, reminded us, east-west and north-south relations are interlocking and independent facets of the Belfast agreement.

These clauses were sent to us, having been considered, amended and approved by the elected House. Your Lordships have a right and a duty to revise, but a responsibility not to wreck. Each and every one of us must consider where on this spectrum tearing out this whole part of the Bill would lie, as the amendments in this group propose. Bluntly, to many, including many in Northern Ireland, this action would look more like wrecking than revision. Faced with such action, I have no doubt that the other place would seek to return the provisions to your Lordships’ House as they had approved them. For these reasons, I hope that the noble and learned Lord, Lord Judge, will not divide the Committee, and that other noble Lords will not press their amendments.

[Lord Judge (CB) [V]]

My Lords, it is getting rather late. There is a lot to cover. If I may, I will deal with it in sequence. I took the unusual step of seeking the view of the House at Second Reading in order that, if the House agreed with my submission, the Government could take their time, reflect on the result and come back with some counterproposals about how to deal with these clauses. We heard nothing.

I am asked to pay attention to the views expressed by, among others, the noble Baroness, Lady Hoey, and by other noble Lords from Northern Ireland. I have paid attention not only to their views, but to the expressed view of every single Member of this House. As I said during the last debate on these issues, I am grateful to those who disagree with me as well as to those who agree. Strong views are held; the debate is courteous and we have to make up our mind between different points of view. When I think of the problems in Northern Ireland and the views expressed by the noble Baroness, Lady Hoey, and others, I bear in mind that their real complaint is against what this Government did way back—about a year ago—when they thought it appropriate to enter into this protocol.

I also bear in mind the views expressed by others in Northern Ireland. The noble and right reverend Lord, Lord Eames, gave best voice to the principle of the view of peace. I am well aware of all the issues arising in Northern Ireland. I recognise that there are deeply held views and that differently held views are held on all sides.

As to the Bill, I rather thought that we had tried to identify, in Clauses 42 and 43, what the problem was. With regard to Clause 42, I have no quarrel with the expressions of aspiration in Clause 42(1) but, as I tried to explain to the Committee, the problem arises with Clause 42(2), where the relevant purpose is not only implementing but otherwise dealing, by regulation, with matters arising out of the Northern Ireland protocol. One of the other purposes was moving goods within the United Kingdom, including movement that involves movement in a country or territory outside the United Kingdom. That is not the internal market.

Clause 43, too, is aspirational: unfettered access to the UK internal market for Northern Ireland goods is aspirational. However, when you turn to how it is to be operated, you run into Clause 43(3)(b), which immediately links this provision to Clauses 44, 45 and 47. Those are unacceptable clauses: the majority of the House made it clear that they were unacceptable at Second Reading. I do not accept, therefore, that we have not looked at these clauses in some detail: we have.

With regard to Clauses 44, 45 and 47, I simply rely on the Government’s own position—which is, quite rightly, that of the Minister, a man of integrity who has not sought to defend them against being in breach of international law. I will say no more about these clauses. We have gone over and over them.

The problem with Clause 46, if it were to stand alone, is simply that it reflects one provision in a whole part of the Bill, and it would be extraordinary for it to stand alone. I hope to persuade the Committee—I hope we have persuaded the Committee—that we should now proceed to deal with it.

I have been asked many other questions. As far as the fundamental problems relating to treaties are concerned, we must consider this as a matter of reality and assess whether we would want to break treaties in circumstances that did not fall within the permissive provisions of the Vienna convention. Do we just tear up treaties without reason? If we have a reason, we have a reason that would probably fall within the Vienna convention.

My other point is that suggestions that this is all lawyerly are deeply offensive. I happen to be a lawyer, but the rule of law is perfectly well understood by everyone—not just lawyers, but doctors, Indian chiefs, warriors, anyone you like. The rule of law is something to which every country and every citizen of every country has a passionate commitment. The rule of law has come to us, in this generation, as a very precious heritage that we owe to our fathers and grandfathers, and to much blood being shed. We have to pass on that principle, untarnished and unlimited, to our children and their children, so that it continues to be a salient, wonderful principle of this country—one that we can all espouse and aspire to and one that protects the weak against the strong, the vulnerable against the powerful, and, most important of all, the weak, the strong, the vulnerable and the powerful against overmuch incursion by the authorities of the state.

This Bill is riddled with powers being given by way of regulation, which are far, far from acceptable. If the crisis that could happen were to happen, there would be no reason whatever why the Minister or Government could not start again. They could come back with reasons why they need their legislation—legislation which complies with the basic principles of our constitution. I see no reason whatever to withdraw the indication I gave at the beginning of the debate that there should be a Division. I start with Clause 42.

22:41

Division 2

Ayes: 165

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Conservative: 147
Democratic Unionist Party: 5
Independent: 5
Crossbench: 4
Labour: 2
Ulster Unionist Party: 1
Liberal Democrat: 1

Noes: 433

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Labour: 156
Crossbench: 116
Liberal Democrat: 80
Conservative: 44
Independent: 22
Bishops: 9
Green Party: 2
Plaid Cymru: 1

[Baroness Scott of Bybrook (Con)]

My Lords, the result is clear and we have already agreed in the usual channels that Clause 43 is consequential on Clause 42.

Clause 43: Unfettered access to UK internal market for Northern Ireland goods

Amendments 158 to 160 not moved.

Clause 43 disagreed.

Clause 44: Power to disapply or modify export declarations and other exit procedures

Amendment 161 not moved.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

I will now put the question on Clause 44. We have heard from Members taking part remotely who say that they wish to divide the House to oppose the question. I will take that into account.

The question will be decided by a remote Division. I instruct the clerk to start the Division. The remote voting period is open. Members are now invited to record their votes using the remote voting system. Members will have 10 minutes to record their votes. I will make an announcement when the remote voting period has ended.

22:57

Division 3

Ayes: 148

---

Conservative: 134
Democratic Unionist Party: 5
Independent: 5
Crossbench: 3
Liberal Democrat: 1

Noes: 407

---

Labour: 142
Crossbench: 119
Liberal Democrat: 76
Conservative: 38
Independent: 17
Bishops: 8
Green Party: 2
Ulster Unionist Party: 1
Plaid Cymru: 1

23:11

[Baroness Scott of Bybrook (Con)]

My Lords, the result is clear, and we have already agreed in the usual channels that Clauses 45, 46 and 47 are consequential on Clause 44.

Amendments 162 and 163 not moved.

Clauses 45 and 46 disagreed.

Clause 47: Further provision related to sections 44 and 45 etc

Amendments 164 and 165 not moved.

Clause 47 disagreed.

Clause 48: Power to provide financial assistance for economic development etc

Amendments 166 and 167 not moved.

Clause 48 agreed.

Clause 49: Financial assistance: supplementary

Amendment 168 not moved.

Clause 49 agreed.

Amendment 169 not moved.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, we now come to the group beginning with Amendment 169A. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or anything else in the group to a Division should make that clear in debate.

Clause 50: Regulation of distortive or harmful subsidies

Amendment 169A

Moved by

[Baroness Rawlings]

169A: Clause 50, page 41, line 40, at end insert “, and research and development grants.”

[Baroness Rawlings (Con) [V]]

My Lords, I too pay tribute to Lord Sacks—a huge loss.

In moving Amendment 169A, I will also speak to Amendments 169B and 169C in my name. Should the UK Parliament have exclusive ability to legislate for a subsidy control regime once the United Kingdom ceases to follow EU state aid rules, without including the possibilities of hidden subsidies, for example through research and development? In these circumstances, I am not arguing at this late hour about whether the Prime Minister will achieve a deal, as the case may be, or whether we will have to abide by WTO rules. Either way, I ask your Lordships that research and development subsidies, hidden or not, be included in the Bill to provide much needed safeguards.

I made my maiden speech in the European Parliament on this subject in 1989, stressing the danger of allowing covert research and development subsidies to creep into state aid legislation before 1992, so that it did not come to stand for

“not the birth but the death of free competition.”

This was the possible abuse of state aid and member states feather-bedding their own industries.

23:15

Leon Brittan was our United Kingdom commissioner in charge at the time. He did a magnificent job. We worked together for the United Kingdom on the distortion of French and Italian bids hiding behind state aid to our disadvantage. We abided by the rules but we lost. Cossor Electronics, a UK company in Harlow, was bidding for the air traffic control contract for the Hong Kong airport. We suspected that their bids went through research and development projects; make of it as you will, it was wrong. At this instance, we felt the hideous effects of distorted competition when the EU integration process had hardly begun. That is why I ask your Lordships to support these amendments: to have research and development incorporated into this Bill now, regardless of our EU position, to safeguard unfair state aid in any future international contracts. I beg to move.

[Lord Thomas of Cwmgiedd (CB) [V]]

I speak to oppose the inclusion of Clause 50 in the Bill. It is important to distinguish between what I spoke about on the last occasion the Bill was before the House: under Clause 48, what regime is to govern EU structural funds in future. This clause deals with state aid.

Both clauses have one thing in common: they seek to alter the devolution schemes as they stand, for economic development powers are devolved. For example, in respect of Scotland, paragraph 4(1) of Part 3 of Schedule 5 to the Scotland Act makes that clear. The position at present, therefore, is that it is for Scottish Ministers, Welsh Ministers and Ministers in Northern Ireland to determine what financial assistance is provided, in the same way as they determine how the structural funds are dealt with.

State aid is of obvious, considerable importance. It can help to address market failures and provide incentives for research and development, of which the noble Baroness, whom it is a privilege to follow, has spoken. They also deal with areas where the Government want to deal with strategic objectives, such as promoting the use of green technologies or promoting more sustainable agriculture.

Of course, state aid can be harmful if it is not directed in the same way; that is why there must be some form of regime in respect of state aid. The present position on state aid is, as we remain part of the European Union regime, that the devolved Governments make the decisions within the EU regime. In consequence—and it has been during the whole period of devolution—state aid is not a reserved matter. It is devolved.

The British Government’s stated position had been to retain the EU regime and put in place an independent body to police it in place of the Commission, as has happened in respect of other parts of the regime that still governs us but will not do so for much longer. That obviously would not have required any change to the devolution scheme. However, the present Government have decided to change this. They intend to use their Henry VIII powers to do so by statutory instrument. However, they have not consulted on what they want to put in its place, and seek agreement and the views of industry and others, in particular the devolved Governments. As in the other parts of this Bill, the UK Government want to do so without reference to working with the devolved Governments within the devolution schemes. However, in this case, they have hit the snag to which I have referred: they lack the power to do so. State aid and schemes are not reserved.

Clause 50, therefore, seeks to make state aid a reserved matter by what I regret to call a “device” of extending the competition reservation so that it can be used, in effect, to direct policy on state aid. This is not the way to proceed. A regime for state aid subsidies is needed unless, within the current negotiations, we agree to some arrangement that mirrors those of the EU. As is clear from the recently published IfG paper, Beyond State Aid, there are many reasons why a state aid regime is essential, but we need a properly thought-through regime before we legislate, including thinking through the role of the regulator. Such proposals should have been set out before we considered such a clause as this. They should have been consulted on and agreed with all the relevant interests—businesses, universities and others.

Furthermore, the regime to be put in place would have to command the confidence of the devolved Governments, who are responsible, under the devolution schemes, for economic development. Bodies within England also have economic development responsibility. After all that consultation, it should have been determined how this would best be implemented. One way of proceeding would be a common framework with an independent regulator such as the CMA, but a decision would have to be made on the kind of regulator wanted. Would it be the kind of light-touch regulator that some have suggested, with an advisory role, or one with policing powers? If it was a light-touch regulator, to whom would it report—to the UK Government only or to the devolved Governments as well?

Tackling all of this without a policy and through the back door is wrong, as I see it. That course of action also has long-term implications. Proceeding in this way will set policy on the legal basis that it is designed to avoid anti-competitive practices. It will not be based on a forward and positive way of setting out a policy based on looking for economic development.

Therefore, in opposing the inclusion of this clause in the Bill, in short, it is wrong to change the devolution arrangements in this way and without any consultation about the future regime, let alone agreement on it having been reached. I have no doubt that we need a competition regime and that it will need some kind of advisory or other independent policing body. However, we should do this in the proper way and not rush to do it by putting a clause such as this in the Bill. It should not stand part of the Bill.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Lord, Lord Purvis of Tweed, has withdrawn, so I call the noble Baroness, Lady Finlay of Llandaff.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, like other noble Lords, I pay my respects to the memory of Lord Sacks. His loss is immeasurable, and I am sure he would have contributed enormously this evening.

I have put my name to the proposal of my noble and learned friend Lord Thomas of Cwmgiedd that Clause 50 should not stand part of the Bill for a number of reasons. First, the clause is in direct contradiction to Ministers’ assertions that the Bill does nothing to remove powers from the Senedd. If that is the case, why is a new reservation necessary?

Secondly, and related to this, is the conundrum that the Government insist that state aid is already reserved. This position has long been strongly contested by the devolved Governments, who have always operated the state aid system, as the UK Government do in England. If there is doubt about the current legal disposition, would it not be better to ask the courts to interpret the meaning of the current reservation and whether it does or does not include state aid?

Thirdly, although I am no expert, I understand that the Government have been resisting pressure from the European Union during the still-ongoing negotiations to keep in place a state aid framework broadly similar to the one we have inherited through our membership of the EU. Indeed, the statutory instrument to revoke all state aid law is before this House. Why are a Government that seem so reluctant to commit to a rules-based system also so eager to take to themselves absolute power on this vital area of economic development policy?

The devolved Governments in Cardiff and Edinburgh are both in favour of retaining this framework in retained EU law. It is a clear system that provides a bulwark against the arbitrary use of public subsidies to support businesses in favour with the Government or to attract investment, something that is a real risk. Having the protection that this current situation affords for the Governments of the smaller nations of these islands is important because, at the end of the day, the UK Government in their “Government of England” mode can always trump any financial incentives that the devolved Administrations could offer in some kind of dog-eat-dog contest. This clause simply feeds the suspicion that, rather than maintaining a level playing field across the UK, this element of the Bill is about giving the Government the maximum freedom to do what they like with the system and channel investment to marginal Conservative seats.

Fourthly, it is probable that, despite their effort, the Government do indeed sign up to an agreement with the EU that requires the enhancement of a new system of state aid. I hope that the term “subsidy control” evaporates in the way the “implementation period” seems to. If that is the case, then the devolved institutions will have to conform to those new rules because they flow from an international treaty obligation, so this new reservation will be unnecessary.

Finally, I turn to what this clause, like so much else about this Bill, says about the Government’s approach to devolution. Quite simply, it would seem that they do not like it, would prefer it not to exist and want simply to pay lip-service to it. This is a Government that do not seem to tolerate any source of law and public policy that they cannot control and, having removed the rival source of authority of the EU, seem to be gunning for other bodies that have the power to make primary legislation. This is not just distasteful; it is profoundly dangerous for those of us who care deeply about the union. I appeal to the Government to rethink their approach urgently because, otherwise, they will see the country gradually disintegrate in front of their eyes.

[Viscount Trenchard (Con) [V]]

My Lords, when I read the three amendments of my noble friend Lady Rawlings, I was not sure exactly what had driven her to propose them. Of course, I am aware that my noble friend is a distinguished former chairman of King's College London and, therefore, well aware of the importance of research and development grants. I recognise the importance of regulating the provision by public authorities of subsidies that may be distorting or harmful.

I had thought that Clause 49 makes it clear that financial assistance for economic development may be provided in a number of forms, including grants. However, I sympathise with my noble friend’s view, which she clearly explained in her impressive speech, that R&D grants should be incorporated to safeguard against unfair state aid masquerading as legitimate subsidies. I would like to hear the opinion of my noble friend the Minister on this question.

Regarding the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd, that Clause 50 should not stand part of the Bill, although I have the greatest respect for his opinions and was impressed by his characteristically clear explanation of his reasons, I believe it is still necessary for this clause to protect against the undesirable possibility that the devolved authorities might otherwise adopt significantly different regulations on this. I look forward to hearing what my noble friend the Minister has to say about this amendment and the need for a single nationwide state aid regime.

[The Deputy Chairman of Committee (Lord Alderdice) (LD)]

The noble Baronesses, Lady Bowles of Berkhamsted and Lady Neville-Rolfe, have withdrawn, so I call the noble Lord, Lord Fox.

23:30

[Lord Fox (LD)]

My Lords, I express my sympathy and support for the amendments set out by the noble Baroness, Lady Rawlings. She makes a good point, and she has my support as a science graduate.

I oppose Clause 50 standing part of the Bill. It carries my name, alongside those of the noble and learned Lord, Lord Thomas, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Finlay. The speeches given by the noble and learned Lord, Lord Thomas, and the noble Baroness, Lady Finlay, set out the issue. I have long wondered what the key drivers of this Bill are. We have had a debate around one of the areas, but the shared prosperity fund, which we have talked about before, and economic state aid, are key elements of the Bill, perhaps hidden in plain sight. We are now nearing the end of Committee, but we will return to this quite fundamentally on Report.

The noble Baroness, Lady Finlay, asked why the Government would reserve these powers, and then answered her own question: these are powers that the Government want for themselves. These are powers which they want to take away from the devolved Administrations; clearly, they would not be in the Bill otherwise. The Minister can shake his head, but if that is not the case, I am happy to hear why the Bill is written in this way.

The noble and learned Lord, Lord Thomas, asked a lot of very important questions on this point. I will ask a few more, and, given the lateness of the hour and the number of questions, will excuse the Minister if he writes rather than answering them tonight. However, we would like the answers in good time for Report, so that we can react to them. Around the frameworks, which the noble and learned Lord, Lord Thomas, raised, is state aid still an outstanding issue where no agreement has been reached, as it was in the last update? If it is still outstanding with no agreement, what are the stumbling blocks? What is stopping agreement and, overall, is this intended to become a legislative framework, or will this Bill and the proposed regulations simply impose a system, rather than continue with the frameworks process?

The frameworks agreement says that they will replicate existing flexibilities. Will this still be the case, or have the Government walked away from this commitment? Will the devolved Administrations still administer economic state aid? It was clear from what the noble and learned Lord, Lord Thomas, said, that he believes that they will not. Can the Minister clear up how that will be shared out, because the devolved Administrations have developed the in-depth knowledge of their areas to be able to do this properly. It would be very damaging to lose that expertise when the United Kingdom needs, more than anything, to invest effectively in growth. Finally, will de minimis levels without notification continue? One reading of the Bill is that even de minimis levels could breach the market access principles. Can the Minister confirm that?

There are too many uncertainties in this. That is why noble Lords have talked about not allowing Clause 50 to stand part of the Bill. On Report, we will have to look very closely at how this is done. It will help tremendously on Report if the Government and the Minister, today or in a written response, give a very clear picture of how they see the different cogs in this system working, how they will work together and how there will be a form of democratic and devolved Administration oversight for what is happening. If there is not, this will, I am afraid, be another bone of contention .

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Baroness, Lady Bennett of Manor Castle, has also withdrawn, so I call Lord Stevenson of Balmacara.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank the noble Baroness, Lady Rawlings, for introducing her amendment. She made her case extremely well: R&D is important, and the Government could easily, with advantage, accept all three of the amendments as they stand. However, her introductory speech raised all the issues that have subsequently been picked up by other speakers, because we are facing what appears to be another black hole in this Bill. The noble and learned Lord, Lord Thomas, the noble Baroness, Lady Finlay, the noble Lord, Lord Fox and I have signed up to an amendment more in frustration than any genuine feeling that the existing clause is wrong, although the noble and learned Lord, Lord Thomas, does make a very good case for how the procedures adopted there are not the ones that should be seen in the final version of this Bill.

The question really seems to be about what our state aid regime is going to be. Is it going to be central or devolved in terms of both its process and delivery? Is there going to be a central body that will be charged with making sure that all those participants who benefit from state aid do so on a fair and open basis, and are they going to be able to review and make recommendations for how it is taken forward?

It seems to me this is another area where common frameworks have an opportunity to provide the solution to a problem the Government are facing. I hope that whichever way we go on this, time will be taken to make sure we get it right, do it properly and come forward with something that will justify the effort that has been placed in it, because it will be worth it.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, I thank noble Lords who have taken part in this debate. I recognise that the hour is late, so I will attempt to be as brief as possible. I begin by setting out why Clause 50 should stand part of the Bill, before moving on to discuss Amendments 169A, 169B and 169C.

Clause 50 reserves for the UK Parliament the exclusive ability to legislate for a UK subsidy control regime in future. The Government have always been clear in their view that the regulation of state aid, which is the EU approach to subsidy control, is a reserved matter. Let me say in reply to the noble Lord, Lord Fox, that the devolved Administrations have never previously been able to set their own subsidy control reviews, as this was covered by the EU state aid framework. Now we have left the EU, we have an opportunity to design our own subsidy control regime that works for the UK economy.

It is important, in our view, that there continues to be a uniform position across the United Kingdom. Reserving will ensure we take a coherent and consistent approach to the way public authorities within the UK subsidise businesses, supporting the smooth functioning of the UK’s internal market. A unified approach will reduce uncertainty for UK businesses and prevent additional costs in supply chains and to consumers.

Also in reply to the noble Lord, Lord Fox, I say this reservation does not impact the devolved Administrations’ existing spending powers. The devolved Administrations will continue to make decisions about devolved spending on subsidies—how much, to whom and for what—within any future UK-wide subsidy control regime.

The Government announced in September that the UK will follow World Trade Organization rules for subsidy control from 1 January. These are internationally recognised common standards for subsidies. Before the end of the year, the Government will publish guidance for UK public authorities to explain these rules and any related commitments the Government have agreed in fair trade agreements. We will also publish a consultation in the coming months on whether we should go further than those existing commitments, including whether or not legislation is necessary, because we want a modern system for supporting British business in a way that fulfils our interests. We do not want a return to the 1970s approach of Government trying to run the economy or bailing out unsustainable companies. We will take the necessary time to listen closely to all those with an interest in this subject.

UK government officials have been meeting, and will continue to meet, their devolved Administration counterparts on a regular basis. We are keen to ensure that the devolved Administrations are involved in the upcoming consultation process. I hope that noble Lords will agree that this approach is the best, and indeed the only, way to ensure that the whole of the UK can benefit from having a consistent and coherent system of subsidy control, which is necessary to support the smooth running of the UK internal market. I therefore commend that Clause 50 stands part of the Bill. I hope that I have answered at least some of the questions from the noble Lord, Lord Fox. If not, I will write to him to confirm the other points.

I turn to Amendments 169A, 169B and 169C, in the name of my noble friend Lady Rawlings. They seek to amend the definition of a subsidy for the purpose of their reservation. They would add to this definition that a subsidy will also include “research and development grants”. The interpretation provisions contained in Clause 50 set out what is classed as a subsidy for the purpose of this reservation. We define a subsidy as including assistance provided to a person, directly or indirectly, financially or otherwise. The definition includes examples of this assistance as income or price support, grants, loans and guarantees.

For the purpose of the reservation of subsidy control, the definition of a subsidy is deliberately broad to ensure that we have sufficient scope to design a future domestic regime that meets the needs of the United Kingdom. To ensure that we cover a broad range of financial interventions, the definition is not currently limited by reference to any specific policy purpose or sector. Subsidies may be given for a variety of purposes, and it would be anomalous to single out just one of them here. The current wording in the clause already encompasses assistance provided to a person directly or indirectly by way of grants and is therefore sufficient to cover research and development grants as my noble friend intends. Therefore, the Government do not think that the amendments are legally necessary. I hope that, in the light of that information, my noble friend will be able to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

I have received a request to speak after the Minister from the noble Lord, Lord Fox.

[Lord Fox (LD)]

With every answer, there come more questions, I am afraid. The Minister sought to explain that the devolved authorities will still be able to spend the money—I think those were the words that he used—but I am interested to know to which money he is referring. How in future will they get their hands on the money? Will there be a competitive bidding process? Is it part of the formula? Is that the money that he is talking about? Perhaps he could outline what he means by “the money”, because it is not entirely clear to me. He is looking at me as though I am being slightly stupid and I shall be very happy to be educated by him in writing rather than verbally.

[Lord Callanan (Con)]

I certainly did not intend to imply that at all and I apologise if the noble Lord got that impression. I was talking about the existing block grants that the devolved Administrations have. It is their existing spending power—the money that they spend at the moment. They will continue to make decisions about their devolved spending on subsidies, as they do at the moment—how much, to whom and for what—within any future UK-wide subsidy control regime if, following consultation, the Government and Parliament decide that we want to legislate in this space. I hope that I have resolved the noble Lord’s question; if not, I will certainly write to him.

[Baroness Rawlings (Con) [V]]

My Lords, I thank the Minister for his courteous and careful reply, and I thank all noble Lords who have spoken to these amendments, for and against. I am sorry that at this late hour several of your Lordships have, understandably, withdrawn.

I am most grateful to the noble and learned Lord, Lord Thomas. I take his point on the devolved matters and thank him for his very interesting contribution. I thank the noble Baroness, Lady Finlay, for her probing remarks, as always, and my noble friend Lord Trenchard, who fully understood what I am trying to do. I am most grateful to him for his kind words. I thank the noble Lord, Lord Fox, for his support. The noble Lord, Lord Stevenson, always makes good points and always asks even better questions.

My noble friend the Minister said that state aid was a reserved matter but we can design our own. I was not quite clear about that. I was even less clear on his explanation of why R&D should not be included; I feel that it is too important not to be included.

To conclude, these modest amendments are hardly revolutionary and are purely intended to help the Government in any future contracts so that we are less likely to lose out; it is a shame that the Government are not able to accept them. I hope that there may be some other way. I may return to the subject of research and development on Report. Having said that, for the time being, I beg leave to withdraw my amendment.

Amendment 169A withdrawn.

Amendments 169B and 169C not moved.

Clause 50 agreed.

Clauses 51 and 52 agreed.

Amendments 170 to 174 not moved.

Clause 53: Regulations: general

Amendment 175 not moved.

Clause 53 agreed.

Clause 54: Regulations: references to parliamentary procedures

Amendment 176 not moved.

Clause 54 agreed.

Clause 55 agreed.

Clause 56: Extent, commencement and short title

Amendments 177 to 180 not moved.

Clause 56 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 11.47 pm.