United Kingdom Internal Market Bill

Lord Moylan Excerpts

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

[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.

United Kingdom Internal Market Bill

Lord Moylan Excerpts

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

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Moylan and Lord Naseby. I call the noble Lord, Lord Moylan.

[Lord Moylan (Con)]

My Lords, I recognise that the noble and learned Lord, Lord Hope of Craighead, and many other noble Lords who have spoken on this subject burn with a passion for their interpretation of the rule of law, but I ask them to reflect that statute needs to have more than principle; it needs to have practicality in its application as well. The effect of these clauses resubmitted in lieu would be to tie the Government’s hands completely in response to any emergency that might arise in Northern Ireland which might need to be addressed. I look in vain in these clauses for any exception that says, for example, “in an emergency”, “if the food in the supermarkets runs out” or “if there is a shortage in supply of medicines”. In such cases, those matters, as I understand these clauses, would need to be addressed through the joint committee, and if the European Union was not willing to accept them, it would need to go through a lengthy process of arbitration. I do not believe that that is acceptable.

My second point relates to devolution and democracy in Northern Ireland. The effect of these clauses is to privilege a particular interpretation of a particular international treaty, the withdrawal agreement.

[Lord Cormack (Con)]

You have got the wrong bit of the Bill.

[Lord Moylan (Con)]

This is very much how I read the clauses, but if noble Lords generally feel that I have got the wrong bit of the Bill, then I shall subside at that point.

[Lord Naseby (Con)]

My Lords, the news that my noble friend from the Front Bench gave us this afternoon is encouraging. Clearly, discussions have been taking place and issues have evolved from them. I do not think that any of us in your Lordships’ House expected every single one of the agreements necessarily to be in a state to be written in and accepted in toto. To hear that 30 agreements have been agreed in broad principle is very encouraging news.

As someone who had a commercial life before coming into the political world, I wonder sometimes whether all your Lordships really understand. A chief executive—such as I was for a division of Reckitt and Colman Group—needs to know, as a certainty, what is happening. They cannot call in the company lawyer and say, “Well, it’s no good, George, you telling me on the one hand this and on the other hand that.” They have spent 15 months producing a new product—or whatever it may be. I sat as MP for an industrial town, Northampton, and I know the industrialists there. I spoke to them on Zoom only yesterday morning, and they are deeply concerned. I then read that the reason why the Commons have disagreed with our Amendments 1, 19 and 34 is

“Because they will create legal uncertainty, which will be disruptive to business.”


I also reflect that I had the privilege—as some of my noble friends in the Chamber did—of being in the other place. They are elected by the people. They have close contact with industry and commerce. When I am told, in writing, that it will be disruptive to business and that is why these Motions A and A1 are before us, I accept it. We have done our part. We are a Chamber that asks people to reflect. We have done that bit and we have done it well. The time comes, at a certain point, when you have to decide one way or the other. In my judgment, Her Majesty’s Government have got it right at this point.