United Kingdom Internal Market Bill

Baroness Scott of Bybrook Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I find it difficult to express how strongly I am amazed and deeply dismayed that any British Government of any complexion should produce before Parliament a Bill which contains the provisions of Part 5 of this Bill. I never expected in my parliamentary career, which has not been a short one, to find myself reading a Bill of this kind presented for parliamentary approval. It has already been said, and will be said many times in this debate, that it appears to give the Government unfettered power to break, in any way they find necessary, particular provisions of a treaty upon which the ink is barely dry. I will not attempt—I do not have the time—to compete with the undoubted eloquence of the noble and learned Lord, Lord Judge, and my noble friend Lord Howard, who have expressed the shock which everybody who has any regard for the rule of law in this country undoubtedly feels.

I move on to my more familiar field, though I am a long practiced and experienced lawyer, and shall talk about the politics which underlines this, which I also find quite bizarre and completely inept. The origins of the need for this Bill are quite extraordinary. It all arises from the decision taken shortly after the referendum that Brexit would involve leaving the single market and the customs union. I strongly disagreed with that, and think that we could have left the European Union and remained. I actually moved a Motion in the House of Commons and got within six votes of a majority for staying in the customs union, which, unfortunately, is nearer than the then Prime Minister, Theresa May, got to achieving anything. But that is not the issue today. I accept that we are committed to leaving the single market and the customs union, and I accept the judgment of Parliament and the population, but it does give rise to all the problems that the Government do not know how to solve.

Once you leave the customs union and the single market, you need a customs frontier between your own internal market and the rest. That is wholly in accordance with all the ordinary practices of international trade in modern times, WTO rules and all. Everybody knows that at Dover this could create a very considerable problem, and we are preparing to recruit the people, get the lorry parks, handle the traffic, and get people to prepare for the paperwork that is involved. The problem of course arose in Ireland, which no one seemed to have thought about very clearly, until they realised that to do the same in Ireland would totally undermine that extremely important agreement for the security of the United Kingdom and the Republic, the Anglo-Irish agreement. The solution was determined that Ulster should stay in the customs union and single market, and Great Britain should leave, which means that we have a customs frontier down the Irish Sea.



This was not a sudden or ill-considered thought; it was argued about vigorously. The Democratic Unionist Party, otherwise firm Brexiteers, opposed the whole agreement on that basis but the fact remains that we have committed ourselves to having a frontier. The proper thing to do now is not to go back on our word with no solution—it is quite unclear what the Government really propose by way of essential customs controls that are still compatible with the agreement—but to minimise the necessary delays, as I hope we are doing in the negotiations with the EU. If we insist on changing standards, we should have equivalence of standards and arbitration procedures to settle disputes, and we should make sure that there are as few disruptions to trade, delays to the border and costs as possible. As I said, it is not quite clear what would happen if you just left a hole in the controls between Ireland and GB.

[Baroness Scott of Bybrook (Con)]

My noble friend has reached his time limit.

[Lord Clarke of Nottingham (Con)]

I realise that I have only four minutes to talk on this matter. That is one of the bizarre arrangements in this Chamber that I am getting used to. No other parliament in the world would think that people could do justice to the contents of this Bill with people having four minutes to speak in the way that we are doing. However, I have added my voice and will oppose Part 5, in particular, in every way in which my membership of this House permits.

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[Baroness Kennedy of The Shaws (Lab) [V]]

Let me join with others in welcoming new Members to this House. I hope that they will have as happy and fulfilling a time as I have had.

I wanted to express my respect and admiration for the noble and learned Lord, Lord Judge, and other noble Lords who have spoken up for the rule of law and our obligations under international law.

[Baroness Scott of Bybrook (Con)]

We cannot hear you. Can somebody please try to change the sound for you, and we will come back to you?

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[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I, too, welcome our maiden speakers.

Like many noble Lords, I find that the conclusions of the Constitution Committee, the European Union Committee and the DPRRC chime with my own concerns about the Bill. I concur with the many magnificent speeches today, led by the noble and learned Lord, Lord Judge, about the rule of law. My humble offering is that the Government have made their bed, must lie in it and must use internationally respected ways to work with it to best advantage.

Regrettably, the theme throughout the Bill seems not to be about working with things but a rush to legislate around primitive principles, lacking the refinements of consultation, consent or even continuity concerning devolution. Really, the question is why. The Bill seems designed to upset. Is it part of the “revolution by disruption” plan, or was it thought that boxes needed ticking right now?

The UK internal market must be taken seriously, but why is there not time to stand still and work intergovernmentally and then legislate where needed, without recourse to Henry VIII clauses to make up for not yet really knowing what to do? The powers in the Bill are a land grab, taking the soul, if not the territory, of the devolved nations as well as sidelining Parliament, allowing anything to be changed by regulation.

I want to make points about the CMA and whether it is the right body and construction to be the embryonic unelected guardian of the single market. Paragraph 35 of the Constitution Committee’s report says it all. Why choose the CMA? Why not establish a properly independent body representing all four nations? Further, the input tenets in the EU lookalike texts of mutual recognition and non-discrimination have neither been agreed by all nations, via the frameworks or otherwise, nor maintain the degree of flexibility and subsidiarity that already exists in the UK.

The CMA itself is sponsored by a Government ministry and all the appointments are still governed by the Secretary of State—despite, for the OIM side, after consulting the devolved authorities. But this is a serious question: why the hermetically sealed and secretive CMA inquiry panel process? I understand it for matters of competition where commercially confidential information is considered and policy is well developed, but for the internal market it will be a matter of public interest and constitutional development. That surely should not be secretive. It will not be simply technical analysis. That leads to overbearing harmonisation; how often have we fought the EU over that?

Analysing the UK internal market must encompass subsidiarity and degree, at least once that has been properly agreed. Does the CMA have that expertise? Surely the evidence, procedures and reasoning need to be seen and, if I may say so, be robust enough to withstand public scrutiny. The Minister has already twice referenced the support of what are, in the end, relatively few of the total of UK businesses. Even within the unsuitable structure, unsuitably appointed, a minimum task group of three is too small and exclusive. Why should it be potentially smaller than the minimum number of judges sitting in the Supreme Court? Are panellists so superior? For such a constitutionally important matter, this all needs a rework.

[Baroness Scott of Bybrook (Con)]

I remind everybody that there is a four-minute advisory time. We are getting quite late and there are still rather a lot of speakers to come.

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[Lord Desai (Lab) [V]]

My Lords, I will not speak to the legal aspects of the Bill, as I am not a lawyer, and that topic has been well covered. I will simply share with your Lordships my curiosity as to what made the Government try to enact this piece of legislation, which, as many have said, is totally outside the normal character of the constitutional behaviour of the United Kingdom. Some noble Lords have referred to this, but this arises out of historical and contemporary amnesia, which have struck the party in power.

First, let me say that I was a remainer, but I have always respected the decision of the people. However, we should notice one thing, which not many people have realised: that the decision in the referendum was more or less a decision by England, not by the United Kingdom. Of the 34 million votes cast, 18 million were for exit, and 16 million against, and 32 million were cast were cast by the English electorate. The difference in the English electorate, 17 million to 15 million, was exactly the final result margin of 2 million. So Brexit has always been an English decision, not that of the UK. Because the party in power has always been predominately an English party, it has begun to renege on devolution, in which it had no part. It was my party which initiated devolution, during the great Blair Government, and that is now being undermined.

The present party in power, 100 years ago, partitioned Ireland, creating Northern Ireland. At that time, as people may remember, the behaviour of the Conservatives when in opposition against the Liberals, and later when in coalition, almost amounted to subversion of the law, encouraging people in Northern Ireland to defy all manner of laws. Now we have come to a stage when the party in power has almost forgotten Northern Ireland. Boris Johnson inherited this proposition of Brexit, although of course he supported it. But I do not remember anybody at the time of the referendum discussion realising that the geography of the United Kingdom is not just England, Scotland and Wales. There is a region out there, Northern Ireland, which everybody forgot—that because Northern Ireland shares a border with the Republic and because we have signed an international treaty to keep that border open all the time, it was logically and legislatively impossible for Northern Ireland to leave the European Union and also have a free border. The logical and legal impossibility of the separation of Northern Ireland from the Republic of Ireland, while the Republic stayed within the European Union, was not, to my memory, ever discussed.

[Baroness Scott of Bybrook (Con)]

My Lord, I remind you of the time, please.

[Lord Desai (Lab) [V]]

I will stop.

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[Lord Flight (Con)]

My Lords, the justification for this Bill is to support and advance trade, and, as pointed out, to provide insurance against present negotiations breaking down. The existing internal market is supported by EU law until the end of the year, where this Bill provides for UK law to take over. This is a detailed Bill, which provides for what I call single market membership in respect of our trade with the rest of the EU, if we reach agreement with the EU to this end.

The question is raised; what happens if trade negotiations break down and the UK opts for the WTO? This looks unfortunately likely, from the Prime Minister’s comments yesterday, to be the case. It is clear, I am afraid, that the EU has been acting in bad faith in the trade negotiations, which the PM has pointed out involved a requirement to lead, and not a requirement to lead to a breakdown.

Presumably we could amend and use the Bill as we saw fit. We would, however, have a self-interest to make the Bill as helpful as possible to European importers and exporters to help optimise our trade. As we are leading historic free trade supporters, I am sure we will be happy to be driven by the free trade principles of mutual recognition and non-discrimination. The Bill will become an Act as of 31 December, assuming it passes both Chambers. Whether or not we do a trade formula deal with the EU, this trade legislation will be on the statute book and operative to ensure the smooth functioning of trade.

I turn now to the controversy. It was the UK Government who found out that the EU was seeking to misuse aspects of the Northern Ireland protocol in a way that was not intended and in order to gain advantage in future relationship negotiations. I am somewhat disappointed that no one seems to have made this point, and the whole problem with Clause 5 arises from that. It was for this reason that the UK Government created the safety net of Clauses 44 and 45, to give British Ministers the power to unilaterally interpret, modify or disapply parts of the Northern Ireland protocol.

The UK has agreed to require parliamentary approval of any government initiatives involved here—I think that this is Clause 56. I was always told as a student that there was really no such thing as international law, as there was no agreed single court of law to monitor it. But, in this situation, I am inclined to the view that it may be better to get rid of Clauses 5 and 6 and to address the issues raised in another way.

I remain a staunch supporter of free trade and appreciate the major contribution to upholding free trade afforded by the Internal Market Bill, but it has the weakness of underpinning oligopoly. Most of the trading requirements as witnessed by this legislation are too detailed, too difficult, too expensive and too demanding of businesses—

[Baroness Scott of Bybrook (Con)]

Will the noble Lord wind up, please?

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, the noble Baroness, Lady Goudie, has withdrawn from the debate, so I now call the noble Lord, Lord Palmer of Childs Hill.