United Kingdom Internal Market Bill

Baroness Massey of Darwen Excerpts

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

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.