Retained EU Law (Revocation and Reform) Bill

Baroness Fox of Buckley Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have a lot of sympathy with the furious frustration expressed today at being asked to grant an Executive a licence to legislate on thousands of legal instruments, all without accountability to Parliament or the public. I empathise because that anger at a democratic deficit was exactly what prompted me to vote to leave the EU. These very EU retained laws started life as secondary legislation impositions on the UK Parliament: they were directions from and obligations to the EU Executive. They were products of a supranational institution whose very design is to ring-fence swathes of lawmaking from national electorates and to delegate sovereign powers to unaccountable European Commissioners, the European bank, et cetera.

Do not get me wrong: there are problems with this Bill. The Government may have missed an opportunity to use the retained law issue as a spur for democratic renewal. They could have launched nationwide town-hall meetings and debates to guide decisions on what laws to keep or delete. But, to note, whatever the anti-democratic dangers of this skeleton Bill, there is a popular mandate behind the Bill’s intent: to fulfil a promise of taking back control of our legal system by abolishing EU supremacy. We do indeed need to give domestic courts more discretion to depart from retained EU case law—they can take it into account but should not be required to follow it. Also, the real constitutional outrage before us is not the Bill so much as the fact that some domestic primary legislation remains subordinate to EU law. I am not sure that complaints that the sunset clause means changes are rushed will cut it with the public. For many millions who voted to leave in the largest democratic vote in UK history, the impression is of sloth, prevarication and obstruction. They deserve a sense of urgency to finish what voters started in 2016.

Many of the core objections we have heard today seem to be driven by a failure of imagination. Many noble Lords have cited professional bodies, NGOs, employers organisations, trade union leaders and lawyers—all who appear unable to imagine social and economic progress happening without retained EU laws. Nowhere is this more gallingly illustrated than in accusations that the Bill will create a bonfire of workers’ rights. Surely this legalistic presumption is insulting to decades of self-organisation by working-class people who fought tooth and nail to win those gains. Maybe tell the RMT rank and file members—many of whom I campaigned alongside for Brexit—that their rights are safer in EU retained law than on their picket lines. Do I trust the Tory Government with workers’ rights? Of course not. But I do not trust EU law either. The first time I heard of the model strike-breaking legislation in the form of minimum service requirements was when it was being eulogised in the European Parliament. And, yes, I will be opposing it when it comes to this House.

The TUC briefing warns that this Bill jeopardises the agency workers directive, but we might note that this very directive is a device used to avoid paying agency staff at the same rate as employed staff. It has been used by the ECJ to break collective bargaining agreements via the 2007 rulings in the Viking Line and Laval cases. Other briefings warn us this Bill will drive a wrecking ball through women’s employment rights and equality legislation. Actually, a far greater threat to equality law in 2023 is not this Bill but the Scottish Government’s Gender Recognition Act. How disappointing that all those condemning this so-called dodgy legislation today have not been clamouring to oppose this material assault on women’s sex-based rights that threatens the UK-wide Equality Act.

The 4,000 retained EU laws were put on the UK statute books without Members of this unelected House crying democracy. Earlier, we were assured that it was all okay because, as one noble Lord explained, there were special behind-closed-door committees that scrutinised them. There was no mind that, no matter how many British voters might object to any one of those laws, there was nothing—zilch—they could do. The lack of outrage at that democratic deficit—

[Baroness Bloomfield of Hinton Waldrist (Con)]

The noble Baroness has exceeded her time limit. Perhaps she could bring her comments to an end.

[Baroness Fox of Buckley (Non-Afl)]

Well, noble Lords get the gist.

Prepayment Meters

Baroness Fox of Buckley Excerpts

Tuesday 24th January 2023 Lords Chamber

[Lord Callanan (Con)]

As I said, people pay slightly more for prepayment meters because of the cost to suppliers of servicing those customers. The issue of social tariffs is of course different. I have had this debate with my noble friend before. We had a system of social tariffs that was replaced by the warm home discount, which was found to be a better way of supporting vulnerable customers. But, of course, we will continue to look at the issues.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I feel as though I have to state the blindingly obvious, which is that being asked to pay more for servicing a prepayment meter that you do not want is not fair. To anyone in the normal world, saying that the tariff is the same just makes the Minister sound like someone who does not understand the normal world. Ordinary people are paying more for a prepayment meter that they do not want but which is being imposed on them, and they are the people who have the least money. It is ludicrous.

[Lord Callanan (Con)]

The noble Baroness says I do not understand, but I have lived in properties with prepayment meters and I very much understand the issues. No one is forced to have a smart meter or a pre- payment meter, either, except in the limited circumstances that I have outlined, particularly for customers who are in levels of debt, and we have put in place a number of measures to try to reduce that as much as possible. I have outlined the steps that we are taking with suppliers to make sure that those are imposed on customers only in the last possible circumstances.

North Sea Oil and Gas

Baroness Fox of Buckley Excerpts

Thursday 10th February 2022 Lords Chamber

[Lord Callanan (Con)]

The noble Lord makes an excellent point. Regarding energy, first, it takes many years to develop new sources—sometimes even tens of years—and, secondly, we need diversity of supply. Yes, we need continued oil and gas production during the transition period; yes, we need to encourage new renewables; and, yes, we need to encourage nuclear. We need a diverse mixture of supplies.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, can I press the Minister? People have stressed the importance of reliable domestic energy sources. In response to the question on fracking, the Minister raised all sorts of problems of safety and so on. These are contentious but could it be possible for the Government to lift the moratorium or at least commit themselves to looking again at this important issue? Nobody suggests that shale gas will solve all the problems but in an energy crisis that is really serious, we want to look at nuclear, fracking and all reliable energy sources. Fossil fuels should not be demonised so that we move away from them, and safety fears should not be used to stop what would be sensible for the British economy.

[Lord Callanan (Con)]

The noble Baroness makes some good points. As I said in response to my noble friend earlier, we keep these matters under review. If it can be demonstrated that fracking can be carried out in a safe and reliable manner, then of course we need to consider it. But we have to be realistic about this: it is not going to be the answer to our short-term difficulties. In preparation for this, I was chatting to some specialist officials and they said it could easily be 10 years—even if we got rid of the moratorium tomorrow and overcame all the environmental problems that were caused—before any fracked gas came on stream.

Energy Costs

Baroness Fox of Buckley Excerpts

Thursday 6th January 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I heartily welcome this short debate from the noble Baroness, Lady McIntosh. I am just surprised that the Chamber is not packed out. We hear a lot about emergencies—public health emergencies, NHS emergencies and, of course, the mother of all emergencies, the climate change emergency—but millions not being able to afford energy in the UK in 2022 really is an emergency and will be immediately devastating for many individuals and institutions.

When we talk about climate-related deaths, I hope we count those people who could die of the cold because they cannot afford bills. This is also not just about consumers. Think of all those businesses struggling because of lockdown policies. These extra energy costs will be a hammer blow and will lead to many cafés, pubs and factories shutting up shop—hardly levelling up. Two small charities I know that work respectively with vulnerable women and the homeless have told me that they will not be able to keep their premises open because of energy bills.

Of course I welcome short-term fixes—yes, scrap green taxes and VAT—but this surely demands a major rethink of energy strategy. I understand partly that this immediate crisis is caused by international lockdown measures, but as economics writer Phil Mullan points out, we need to untangle contingent factors from long-term endemic issues affecting gas shortages and higher energy prices. I quote him:

“long-term problems … derive from the … transition … from fossil fuels, and the absence of reliable alternative energy”

supplies. I agree, and this points to how green policies and tougher and tougher targets for decarbonising energy supplies are one major reason for the hike in energy bills that has left our energy supplies so precarious and left ordinary people to foot the bill.

We need to stop letting carbon reduction policies be placed ahead of securing the supply of cheap, reliable energy. I would like the Government to address the following four areas. First, having spent millions subsidising renewables, will the Minister concede that the headlong embrace of wind power means that the UK is vulnerable to energy shocks when the wind stops blowing? Until the technology exists to store wind, surely we need to recognise that fossil fuels, gas turbines and coal-fired power stations are still needed.

Secondly, can we stop neglecting nuclear power, given that it is a clean, stable energy source that produces carbon-free electricity? The onerous, prohibitive and exorbitant regulatory bureaucracy and the years of delays in building new plants needs to stop. Indeed, I suggest that the Government emulate—wait for it—the EU’s Ursula von der Leyen; you never thought I would say that. They should label nuclear as green if they need to do so to brandish their eco credentials post COP 26.

Thirdly, unlike the noble Baroness, Lady McIntosh, I think we should look again at fracking. A vast supply of gas lies beneath our feet, and if the UK extracted just 10% of its shale gas resources it could meet gas needs for the next 50 years. Can the Government please lift their seemingly indefinite moratorium on fracking?

Fourthly and finally, I suggest that the best way the Government can lower energy bills is to review, and indeed scrap, some of their own wrong-headed eco policies—none more so than my bête noire, the imposition of heat pump boilers. They are costly to install and you have to wait 24 hours to get a limit of 17 to 19 degrees, yet they are likely to lead to even more green levies on gas bills. They should go. What we mainly need is a complete overhaul of our energy policies so that energy price crises do not become the new normal.

Net-zero Emissions Target: Fossil Fuel Extraction Projects

Baroness Fox of Buckley Excerpts

Wednesday 3rd November 2021 Lords Chamber

[Lord Callanan (Con)]

The UK is indeed engaged in the process to modernise the Energy Charter Treaty to ensure that it is aligned with our climate objective and advances UK and global energy transition. So, through our COP 26 presidency we are working closely with global leaders to meet the goals of the Paris Agreement, including supporting the accelerated phase-out of coal and the wider decarbonisation of the energy sector.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, in view of the importance of allowing the UK steel industry to survive and even thrive, and the obvious and immediate need for steel to manufacture those wind turbines we hear so much about, can the Minister explain the delay in opening the Cumbria coal mine? Is it sensible to allow all new fossil fuel extraction projects to be demonised and indiscriminately written off to fulfil net zero, when other urgent priorities, such as the imminent energy crisis, mean that the Government should be more pragmatic and look at all energy options, including shale gas?

[Lord Callanan (Con)]

The noble Baroness makes some valid points. The steel industry is integral to building the infrastructure, such as offshore wind farms, that we need to tackle climate change. While there has been a decline in coal mining in the UK for some time, there is a global market for coking coal. This reduction in the mining of coal in the UK will have no impact on UK steel production. I would remind the noble Baroness that we published the UK’s first ever industrial decarbonisation strategy, which will help in this area.

Net-Zero Carbon Emissions

Baroness Fox of Buckley Excerpts

Monday 7th June 2021 Lords Chamber

[Lord Callanan (Con)]

The noble Baroness is right that this will indeed be a challenge. If she will be patient, we are planning to publish our heat and buildings strategy in due course. That will set out how our industry and consumers can take the immediate actions they need to take in order to reduce emissions from all buildings, both industrial and commercial.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, according to a summary report from the Public Accounts Committee, as much as 62% of the reduction in future carbon emissions will rely on individual choices and behaviours such as replacing boilers or buying electric vehicles. Have the Government told the public that they are relying on such behaviour change and what it will mean ultimately for individuals if they have no choice but to comply? When will the Minister tell the public how much net zero will cost them? As we have just heard, gas boilers cost a great deal less than the heat pumps being proposed, which produce a lot less heat. For an ordinary home to achieve net zero will cost approximately £90,000. Whether they are carrots or sticks, they are very expensive regardless.

[Lord Callanan (Con)]

I do not recognise the figures given by the noble Baroness. It will be an expensive change, but I do not think that it will cost that much per home. However, she is right in theory. We need to educate people about the changes required and to take them with us, and of course the policy will be brought about by a mix of regulations and grant assistance.

United Kingdom Internal Market Bill

Baroness Fox of Buckley Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 9th December 2020 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I will speak briefly. I listened carefully to the eloquent contributions of the noble and learned Lord, Lord Judge, and others on these issues of international law, although I am struck that, over the years, there have been examples of Governments backing away from commitments in international treaties. It happened under a Labour Government and during the coalition Government, so it was nothing particularly new. What was new was the stark way in which the Minister outlined it at the Dispatch Box. I only wish that Ministers in the Lib Dem/Conservative coalition and past Labour Governments had been equally free and open and admitted honestly that they had done it.

What was behind the Government’s efforts in the United Kingdom Internal Market Bill? It was to deal with the state-aid point, as we heard, but also to guarantee unfettered access for Northern Ireland goods to the rest of the United Kingdom. That is hardly, in itself, terribly contentious, since it is to the benefit of everyone in Northern Ireland that business should flow free and unfettered. It is to the economic benefit of business, all communities, employment and the creation of jobs, all of which add to the stability and prosperity of Northern Ireland going forward. It was agreed by the EU itself in the joint report of December 2017, and by the parties in Northern Ireland that signed up to the New Decade, New Approach document. All the parties agreed: nobody reneged from it. It was in the Conservative Party manifesto, as the Minister has mentioned. So, there should not be anything contentious about that principle, which was well outlined, clear and supported—indeed, in amendments put down in the other place—by parties other than unionist parties as well.

Section 38 of the European Union (Withdrawal Agreement) Act 2020, passed by more than 120 votes in the other place, allows for “notwithstanding” arrangements. Article 16 of the Northern Ireland Protocol itself makes it clear that where the protocol would do serious economic, societal or environmental damage to Northern Ireland, the Government have the right to act unilaterally. I can think of nothing more designed to cause serious economic damage than putting extra, multiple costs, restrictions and administrative burdens on businesses in Northern Ireland, the vast bulk of which do their trade with the rest of the United Kingdom, thereby causing economic damage, job losses and the rest of it.

I appeal to noble Lords as they consider these matters to think of the practical consequences of some of the arguments being put forward. Think of the effect on people’s businesses in Northern Ireland, most of which are small or medium-sized. Think of the people working there, who will lose their jobs if unfettered access is not guaranteed or if some of the other restrictions, from Great Britain to Northern Ireland, are not dealt with. The protocol, as noble Lords know and as the Government know all too well, was opposed by these Benches and by many in Northern Ireland for the reasons set out, passionately and rightly, by the noble Baroness, Lady Hoey. It creates differences within the internal market of the United Kingdom, with economic and constitutional implications.

People have pointed to the Belfast agreement, but I hear very little reference among noble Lords and commentators to the St Andrews agreement, the Stormont House agreement and so on. I urge people to refresh their memories of all those agreements which, taken in the round, are about a consensus in Northern Ireland of unionists and nationalists. If border restrictions, a presence and north-south tariffs on the island of Ireland are utterly unacceptable because they might breach the Belfast agreement, then likewise, it is unacceptable for many people in Northern Ireland that such restrictions—tariffs et cetera—should be imposed between Northern Ireland and the rest of the United Kingdom. That is a simple principle that should not be contentious. We hear people saying that Part 5 of the Bill drives a coach and horses through not just international law but the Belfast agreement, but they have no regard, it seems, to the serious concerns that many people have voiced, including many who were instrumental in drawing up the Belfast agreement.

This does serious damage to the agreement in Northern Ireland and importantly, it destabilises the Executive. I am a believer in devolution and I want to see it succeed, but it will not succeed if we have a one-sided approach to the Belfast agreement. It has to be a rounded approach. The Government have said that they are withdrawing certain clauses in the Bill and standing by others. I welcome the clauses they are putting in and those they are standing by; they are important statements of principle. But we will now have to wait and see how the Statement made in the other place today is actually implemented.

The noble Lord, Lord Howard, talked about matters being resolved. Some have been, perhaps, but others have deliberately been put on hold and are not resolved. It will therefore be important to see how this works out in practice, but the Government must keep under review how these measures, taken under the provision I mentioned at the start of my speech, help to preserve stable government and economic prosperity and uphold the agreements made in Northern Ireland by both unionists and nationalists, and those of neither persuasion.

[Baroness Fox of Buckley (Non-Afl)]

I would like to remind noble Lords, especially on the Government side, that the clauses being removed were themselves argued for as a necessary legal shield for the internal integrity of the United Kingdom and its sovereignty. I am told now that the Government are content with assurances. I am not sure that many leave voters are content simply to be assured. Goodness knows, he might be surprised when I say this, but the noble Lord, Lord Adonis, made a very important point when he said that at the beginning of the week, he did not anticipate this debate. Many in the House did not expect these clauses to be removed, and now we are told to be assured; yet they were crucial clauses only last week. I therefore at least want to raise the question of trust and whether we should be expected simply to trust. It sometimes feels as though some of us have been marched up a hill and marched down it again.

[Noble Lords]

By whom?

[Baroness Fox of Buckley (Non-Afl)]

We know by whom. As an aside, I rather like a heckling atmosphere, but I would prefer it if it happened not just when I am speaking.

With absolute due respect to the noble and learned Lord, Lord Judge, who speaks so eloquently about constitutional and unconstitutional principles—I have listened very carefully to him for many years, not simply in recent weeks—I would be rather disappointed, and I think it would tarnish those principles, if it was thought that the decision was made because of the strength of feeling in this House. I would rather think that it was because the Government were satisfied by the debates, not that this House, rather unconstitutionally, might have got in the way of parliamentary sovereignty. There is a danger that some of the comments being made are self-aggrandising and self-congratulatory.

However, the main point for me—made clearly by the noble Baroness, Lady Hoey, and emphasised by the noble Lord, Lord Dodds—is that Northern Ireland is being treated separately, as a different entity. I am afraid that some seem to relish this: in many debates that I have sat through in this House, I have felt as though the 2016 referendum of the whole United Kingdom was being used as an excuse to interpret devolution as some kind of federalisation of the United Kingdom. Interestingly, even today, one noble Lord noted that 56% of Northern Ireland voted to remain in the European Union—that is of no matter, indeed no interest, if you believe in the United Kingdom.

[Noble Lords]

Oh!

[Baroness Fox of Buckley (Non-Afl)]

Here we go. There will be those who would say that the debate about the unity of the United Kingdom and the status of Northern Ireland might be contentious. That is a different debate; a different referendum would need to be called. In 2016, the United Kingdom was asked whether it wanted to leave the EU; all of it voted to do so, and yet one part of it is now to be held in thrall, to a certain extent, to the EU—a body that I do not entirely trust to respect the integrity of the sovereign rights of the United Kingdom, I am afraid. Therefore, I am not content.

[Lord Adonis (Lab)]

I am not sure how far I should follow the noble Baroness except by making a few obvious points. First, the Good Friday agreement and the Northern Ireland protocol were warmly welcomed in Northern Ireland; this is not being done to Northern Ireland against its will. These provisions are very warmly welcomed because the people of Northern Ireland see them as a guarantor of peace and stability there; this requires an open border with the Republic of Ireland, so I do not follow the noble Baroness on that point.

I also did not follow the noble Baroness when she said that the House of Lords was standing “in the way” of parliamentary sovereignty. We are part of Parliament and performing our functions as a part of it. In that respect, I pay great tribute to the noble and learned Lord, Lord Judge, and—I never thought I would hear myself saying this—the noble Lord, Lord Howard, who have played an absolutely central part in the ability of this House to perform its proper constitutional role to see that the House of Commons is invited to reflect further on provisions that it believes are injurious to the public interest.

We have reached this point in a very convoluted way, because the Government changed their mind mid-way through the parliamentary process. However, the noble Lord, Lord Cormack, likened the noble Lord, Lord True, to the prodigal son, and we welcome all those who have seen the error of their ways and repented. The process by which they do so is not significant; what is significant is the opportunity that this House gives to Parliament at large—including the Government, which operate as a part of Parliament—to consider its view on these big and important matters that are of concern to us. We have reached the right decision on this matter.

The only point I want to make is about the consequences because, as we now move forward, they are significant. To understand them, we need to understand why the Government did what they did. It was never my view that they intended these provisions to become law; they knew that the noble Lord, Lord Howard, the noble and learned Lord, Lord Judge, and a whole galaxy of the most heavyweight Members of your Lordships’ House would object to them—they knew that.

State Aid (Revocations and Amendments) (EU Exit) Regulations 2020

Baroness Fox of Buckley Excerpts

Wednesday 2nd December 2020 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it gives me great pleasure to follow the noble Lord, Lord Moylan. I can only emulate his wit and clarity. In this instance, I agree with him. I will make some additional points.

I am opposed to the amendment from the noble Lord, Lord Stevenson of Balmacara, just as for many years I was totally opposed to the EU’s state aid rules. It was one reason why I voted to leave in 2016. I was glad to escape them then and I do not want any further delays. I note with some irony that this means I will be supporting the order put forward by the noble Lord, Lord Callanan. During the years before the referendum, even the most ardent Eurosceptics in the Conservative Party were rather lukewarm in highlighting the egregious nature of the EU state aid rules. Indeed, Margaret Thatcher was happy to use those rules to roll back the state at home. The Eurosceptic left might well be a dying breed, although there are a few of us left—but, in contrast, for many years they objected to the EU’s state aid rules. The much-missed RMT leader, Bob Crow, the former Labour leader, the right honourable Jeremy Corbyn, and others on the left, such as me, recognised that those rules were anti-democratic. Whatever the UK electorate might have voted for, if those policies involved certain state subsidies to create new jobs or to help certain industries survive, they could be blocked.

EU rules stipulate that Governments need to notify the European Commission in advance for permission. This is an affront to popular sovereignty and why I support this order. This outrageous mechanism, which allows the Commission to overrule elected finance Ministers and claw back payments, is uniquely prescriptive in the world. It goes far further than other economic blocs, such as the World Trade Organization. The WTO allows subsidies by default. Prior notification and approval are not required. Despite what the noble Lord, Lord Liddle, might say, this makes it more democratic than the EU.

Apart from noting the irony that today’s Labour Party seems keen to retain the EU’s anti-worker, anti-state rules, and that the Conservative Party seems committed to escaping them, it is worth considering why there is so much focus on state aid in the withdrawal agreement negotiations, and in this House. Surely, it cannot be because the EU thinks that the UK will be chomping at the bit to increase state aid, once it is free from Brussels, or that the present Government are likely to launch a campaign for the mass nationalisation of industry. Even when it was in the EU, Britain conducted less approved state aid than most other EU members. In 2018, Britain’s official state aid spending amounted to 0.34% of GDP—about half the EU’s average of 0.76% and far below Germany’s 1.45%. Why do the EU and its avid remainer cheerleaders in the UK constantly take such a robust stance over rules that cover a relatively small part of the UK’s GDP and overall state spending? This seems more politically than economically driven. After all, state aid rules are often used by the European Commission as a mechanism for asserting its overall authority and supremacy over its member states, on pain of punishment and at the expense of their sovereign rights. The rules are used as a punitive and enforcing mechanism.

While the UK has formally left the EU, it seems that it wants to use state aid to curtail the UK as a genuinely autonomous nation. That is why I think it is right that the Government seek to protect against a maximalist interpretation of Article 10 in the Northern Irish protocol, because it could give the European Commission extensive jurisdiction over subsidies granted throughout the UK. It is why it was so important to retain Clause 45 of the Internal Markets Bill, but more of that another time. More broadly, regardless of the economic impact of adhering to any version of the EU state aid rules, the main issue is one of national sovereignty. If the British people want more nationalised industries or state support, it is they—and not the European Commission—who should have the final say.

We have heard much hectoring from some noble Lords about the importance of sticking to international law. Interestingly, despite the rigidity of the EU state aid rules, those same rules were effectively waived during the recent European lockdown-induced recession —just as they were during the financial crisis a decade ago—to allow for emergency bailouts and job protection schemes. This rather calls into question the supposed inviolability of international legal rules in all instances. Is this not a case of one rule for them and another rule for the rest of us? I want to get rid of state aid rules as quickly as possible.

United Kingdom Internal Market Bill

Baroness Fox of Buckley Excerpts

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

[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.

Covid-19: Financial Support for High Street Retailers

Baroness Fox of Buckley Excerpts

Tuesday 27th October 2020 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, will the Minister ask colleagues in the Welsh Assembly if the distinction between buying essential and inessential retail goods is a scientific one or an arbitrary political one? For retail in general, beyond financial support, a dangerous dose of puritan moralism will not help shops if it means that a care worker who has worked long shifts and might want to treat themselves to a dress is now treated as a criminal. The Minister said to shop early for Christmas—not in Wales, where I am from, because you are not allowed to shop at all, apparently.

[Lord Callanan (Con)]

The noble Baroness makes a powerful point, and I point out that we do not have these restrictions in England. I almost felt sorry for the Welsh Government yesterday in trying to navigate a way through this self-imposed error.