United Kingdom Internal Market Bill

Bernard Jenkin Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons
Monday 14th September 2020 Commons Chamber

[Edward Miliband]

The right hon. Gentleman and I come from different positions. I want to respect the devolution settlements that uphold the Union and he has a different point of view, but on this matter we should be legislating for common frameworks. That would be the way to respect devolution. I do not know whether the Prime Minister even understands the legislation—I know he has many things on his plate—but I am sorry to say that on this issue, the Government’s approach has been cavalier. Since 2017, common frameworks have developed and the Government could have legislated for that. We will seek to do that during the Bill’s passage.

The issues were prefigured in the White Paper. Since then, we have an even bigger question to confront. Let me say at the outset that we want the smoothest trade across our United Kingdom, including Northern Ireland. There is a way to resolve those issues in the Joint Committee set up for that purpose. I have to say that, from a man who said he wanted to get Brexit done and won an election on it, the Bill gets Brexit undone by overturning key aspects of the protocol that were agreed.

I have been part of many issues of contention across the Dispatch Box, but I never thought that respecting international law would be a matter of disagreement in my lifetime. As Leader of the Opposition, I stood opposite the Prime Minister’s predecessor David Cameron for five years. I do not know why the Prime Minister is rolling his eyes. I disagreed with David Cameron profoundly on many issues, but I could never have imagined him coming along and saying, “We are going to legislate to break international law” on an agreement that we had signed as a country less than a year earlier. Yet that is what the Bill does, in the Government’s own words.

I want to address three questions at the heart of the matter. Is it right to threaten to break the law in the way the Government propose? Is it necessary to do so? Will it help our country? The answer to each question is no. Let us remember the context and the principle. If there is one thing that we are known for around the world, it is the rule of law. This is the country of Magna Carta; the country that is known for being the mother of all Parliaments; and the country that, out of the darkness of the second world war, helped found the United Nations. Our global reputation for rule making, not rule breaking, is one of the reasons that we are so respected around the world. When people think of Britain, they think of the rule of law. Despite what the Prime Minister said in his speech, let us be clear that this is not an argument about remain versus leave. It is an argument about right versus wrong.

The Brexiteer and former Chancellor of the Exchequer, Lord Lamont, says that the Bill is impossible to defend. The Brexiteer and former Attorney General who helped to negotiate and sign off this deal as Attorney General says that the Bill is “unconscionable”. And the Brexiteer Lord Howard—the Prime Minister’s former boss—said this:

“I never thought it was a thing I’d hear a British minister, far less a Conservative minister, say, which is that the government was going to invite parliament to act in breach of international law…We have a reputation for probity, for upholding the rule of law, and it’s a reputation that is very precious and ought to be safeguarded, and I am afraid it was severely damaged…by the bill”.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

Does the right hon. Gentleman think that the EU has been negotiating in good faith?

[Edward Miliband]

It is very interesting that the hon. Gentleman should say that because a report came out today from the Northern Ireland Affairs Committee, which is chaired by a Conservative Member. This is what the report says and this is my answer to him:

“These talks began in March and continued throughout the summer in a spirit of good faith and mutual respect for the delicate arrangements in Northern Ireland.”

That is what the Conservative-controlled Select Committee says about this issue.

The Prime Minister has said many times that he wants to bring unity to the country during his premiership. I therefore congratulate him on having, in just one short year, united his five predecessors. Unfortunately, their point of agreement is that he is trashing the reputation of this country and trashing the reputation of his office. Why are these five former Prime Ministers so united on this point? It is because they know that our moral authority in the world comes from our commitment to the rule of law and keeping our word. We rightly condemn China when it rides roughshod over the treaties dictating the future of Hong Kong. We say it signed them in good faith, that it is going back on its word and that it cannot be trusted. And his defence? “Don’t worry; I can’t be trusted either.” What will China say to us from now on? What will it throw back at us—that we, too, do not keep to international law?

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[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

Rarely can a few words uttered from the Government Dispatch Box have overshadowed a debate like this to such an extent or indeed caused so much instant fury and indignation, but I do not think the House should be in any doubt that the author of those words will have been delighted by the reaction they caused, and that the real purpose and significance of those words will probably prove to be much less than that. The law of this land and international law are both of great importance. I will leave that to the lawyers. The underlying question for the House to address is about where this nation now finds itself.

I support the Bill, because it will be necessary to address at least the worst aspects of the withdrawal agreement and protocol. We cannot be bound by it indefinitely or continue to accept laws imposed on our country by the EU court. At least there was a means of leaving the EU, but there is no obvious means of leaving this withdrawal agreement.

Much has been said about the potential to lose the respect of the international community, but what will other nations think if this great and sovereign nation cannot bring itself to accept that we made a mistake ratifying this agreement? [Interruption.] Some of us warned about it at the time. But the key points are these: the UK will gain respect if we extricate ourselves from the worst aspects of this agreement, which have the capacity to impose laws on our country with even less democratic legitimacy than under our previous membership of the EU.

[Alan Brown]

Is that now the measure of how we are going to go forward with international treaties: when countries change their minds, they say, “Oops, I made a mistake. We’ll forget about it.”?

[Sir Bernard Jenkin]

I do not think it is a matter to be done casually and without very great care, but, as many right hon. and hon. Members, even those objecting to this Bill, are now saying, if the worst comes to the worst, we may have to avail ourselves of these powers, because it is the obligation of this House, first and foremost, to stick up for our national interests.

The EU says it will act against the UK through the European Court, but there is something absurd about the EU attempting to impose its laws on a member state after it has left the bloc—when did the voters endorse that? There is something ironic, even bizarre, about MPs in this Parliament demanding that the EU should continue to impose its laws instead of themselves wanting to make the laws for their constituents—they still do not accept Brexit. One wonders whether the Government recognise better than many here how most voters will react to this. Most of those shouting the loudest now showed how little they understood the voters in the 2016 referendum. Voters will support a Government who are determined to resist the unreasonable enforcement of the withdrawal agreement by the EU. Today, the Government have a strong mandate and a secure Commons majority for taking back control of our laws—voters will expect no less than that and they will give little quarter to this Parliament if they are let down again.

We are in a process of constitutional transition, from being subordinated by the EU legal order towards the restoration of full independence. While we are in this penumbra period of mixed constitutional supremacies, it is unsurprising that this kind of controversy should arise. Our other allies and trading partners will have far more respect for the UK if we stand up for our interests in this way than they will if they watch us accepting that we are to remain indefinitely a non-member subsidiary of the EU. The Government must ensure that there will be a clear end to the jurisdiction of the EU Court; that is the test of whether we are taking back control of our own laws, and our democracy demands it.

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[Jeremy Wright]

If my right hon. Friend will allow me, I will address exactly that point and what the Government could be doing instead of what they are proposing to do. Let me say first that the possibility of reaching no trade agreement and of deadlock in the Joint Committee was foreseeable yet when the withdrawal agreement was signed, and again when it was legislated for, the Government did not say that the risk of the outcomes they rely upon now undermined the deal on offer; they said then and they say now that this was a good deal. So what has changed?

That leads to the argument to which my right hon. Friend refers: that, unexpectedly, the European Union is now adopting an interpretation of the Northern Ireland protocol so outrageous and so far from a rational reading of that protocol that we could not have seen it coming and we could not possibly accept it, leaving no option but to abrogate ourselves the relevant parts of the protocol. But the withdrawal agreement sets out a mechanism for resolving disputes about interpretation, involving binding independent arbitration and penalties including the suspension of obligations under the agreement. If the EU’s new approach is so far from what the agreement intended, why would the Government not succeed in using that mechanism?

[Sir Bernard Jenkin]

The answer is that any question in European law, under article 174 of the withdrawal agreement, has to be referred to the European Court of Justice, and the Court is acting not on behalf of the 28 as before, but on behalf of the 27. We know it is a political court.

[Jeremy Wright]

My right hon. Friend might be right to be sceptical about the Court of Justice of the European Union, but the issue likely to arise here is not a question of European Union law; it is a question whether there is compliance with the withdrawal agreement signed by both sides. That does not necessarily raise a question of European law; nor, in my view, is it likely to. It raises a question of treaty law and whether or not this is being abided by in good faith.

I accept that the Government have a problem, but I cannot accept that the proposed solution is either necessary or right. International law matters. The rules that bind nations underpin what the United Kingdom says on the world stage on a variety of subjects, from the Skripal poisonings to the treatment of the Uyghur people to the detention of Nazanin Zaghari-Ratcliffe. We speak often, and rightly so, of the rules-based international order as the foundation of freedom and justice in the world and of our security. The rules referred to are, of course, rules of international law. If we break them ourselves, we weaken our authority to make the arguments that the world’s most vulnerable need us to make. Nor is it in our long-term diplomatic or commercial interests to erode the reputation we have earned for the strength of our word and our respect for the rule of law—a reputation that, ironically, we will rely on more than ever when the Brexit process is complete.

I do not believe that my right hon. Friend the Prime Minister or his Ministers wish to undermine that reputation, but I do believe that if Parliament were to give Ministers the powers they are asking for, and if they were to be exercised, we would all come to regret it. That is why I cannot vote for the clauses as they stand, or for a Bill that contains them.

United Kingdom Internal Market Bill

Bernard Jenkin Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Monday 7th December 2020 Commons Chamber

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

I was going to congratulate the right hon. Gentleman on endorsing the hereditary principle, which I did not know he was such a big supporter of. The real question I want to ask him is, what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or its own constitutional law?

[Edward Miliband]

As the hon. and learned Member for Edinburgh South West (Joanna Cherry) says, do not sign it, but I make another point. This is an agreement that the Government signed, and as the right hon. Member for East Antrim (Sammy Wilson) exposed, under article 16 of the protocol, there is not only a Joint Committee set up but a capacity for unilateral action in the case of social and economic disruption. He asked whether the protection will still be in place for unilateral action if these clauses go away—I can answer him, since the Minister did not: yes, they will still be in place, because they were in place all along. This has all been a completely unnecessary charade.

It is not just on international law that this Bill was savaged; it was savaged on devolution as well. This is very important, because it goes to the heart of the way we are governed as a country and the heart of our future as a country. Like the Government, the Opposition believe in our United Kingdom, but many people—including Conservatives—feel that this Bill deeply undermines devolution. Let us just listen to Lord Dunlop. For the benefit of the House, Lord Dunlop is the Government’s devolution guru—he is the guy advising the Government on devolution. He describes the Bill as

“an unnecessarily heavy-handed approach to balancing the demands of free trade within the UK with respect for the roles and responsibilities of devolved institutions.”—[Official Report, House of Lords, 19 October 2020; Vol. 806, c. 1336.]

He also says that the Government should

“think long and hard before overturning…on the back of Conservative votes alone, any sensible changes”—[Official Report, House of Lords, 2 November 2020; Vol. 807, c. 585.]

made to the Bill on devolution. So on devolution and international law, the Bill has been savaged.

Something has changed in Government on the Bill during the last three months. The truth is that the top brass of Government are running a million miles from the Bill, not just on international law but on devolution as well. We learned a few days ago from the very reliable Paul Waugh that the Chancellor of the Duchy of Lancaster has some thoughts on the Bill. He wrote:

“Even some Whitehall officials were baffled why the bill was drafted in the first place.”

He went on:

“Sources tell me that Gove has been looking at ways to either amend the devolution section of the bill, or ditch it altogether. If the whole bill is quietly left”—

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[Sir William Cash]

When I read the account of proceedings in the House of Lords, I found that the Lords were very strong on assertion, but empty when it came to the question of argument. I found that rather disturbing, because, after all, they have potential power under the Parliament Acts. I also appreciate that, towards the end of the proceedings, in reference to the powers in part 5 of the Bill, and the clauses under discussion regarding “notwithstanding”, Lord Judge said:

“‘We may need these powers at some stage’. Maybe we will; I hope not.”

He then said that it would be

“open to the Government to come back to us, to Parliament, to put before us emergency legislation.” —[Official Report, House of Lords, 20 October 2020; Vol. 806, c. 1431.]

The circumstances that we face could not be more important and relevant, and my view is that what he said effectively conceded the principle.

[Sir Bernard Jenkin]

I was going to make exactly that point. Lord Judge, very respected as he is, basically conceded the principle that we might need “notwithstanding” provisions to overturn the provisions in the withdrawal agreement. We are not talking about the principle anymore; we are just talking about when it would be appropriate to introduce the provisions. They might as well be introduced now with the parliamentary safeguard that the Government have conceded.

[Sir William Cash]

More or less the same took place in my exchanges with my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who said very much the same. There is a threshold beyond which it would be necessary for us to take such action. Without going into the detail, I just wanted to put those two things on the record.

The issue is, and basically always has been, about parliamentary sovereignty. In the UK context, this is an internal law of fundamental importance, as expressed in article 46 of the Vienna Convention. It is by virtue of parliamentary sovereignty that we have taken the line that we have. I certainly have taken that line on many occasions, including in my proposal for section 38 of the European Union (Withdrawal Agreement) Act 2020, which I referred to earlier, and which has the whole concept of “notwithstanding” built into it. Section 7A of that Act also deals with direct effect. Given that the Act was passed with a large majority in the House of Commons, and then passed again in the House of Lords without any dissent of any description, I find it quite extraordinary that this has been turned into a matter of such fundamental anxiety, without any supporting argument that I have ever seen.

When I read the debates, I found there was a great deal of posturing going on. I understand the emotional concern of some people who are quite incapable of accepting that we have lawfully left the European Union; that a series of enactments were passed by both Houses; and that, on top of that, we had a general election—not to mention that under the Salisbury-Addison convention, it would be inconceivable, in the context of a general election manifesto, for the Lords to take a stand against these clauses if the House of Commons passed them again tonight, and perhaps again on another occasion.

Why do I say all this about constitutional and international law? I will deal with that very briefly. First, in my judgment, the European Union has breached article 184 of the withdrawal agreement, which is about negotiating in good faith. It has manifestly multiplied that fault over the past few days by refusing to accept the manner in which the negotiations have been conducted so far. There is also the question of its demand to retain power over crucial aspects of our sovereignty—both economic and relating to our national interest—as a precondition to concessions on trade.

The EU has also, in my judgment, breached article 184 on the basis of the recognition, as it puts it, of our internal market. I believe in the basic principle that one party to a treaty cannot obtain from the other the execution of its obligations if it does not respect its own commitments. If the EU continues to act as it has done in the negotiations, particularly over the past few days, the United Kingdom would be entitled to terminate the withdrawal agreement on the basis of the EU’s breach of article 184.

Lastly, as I said in Committee and on Report, there is a long list of occasions when Conservatives, Labour and Lib Dems, as part of the coalition, have agreed to override treaties. There are not just one or two quite explicit examples, but hosts of them. In infinite Finance Bills and Independence Acts, and in relation to prisoner voting and various other things, there have been quite clear and deliberate overrides of treaties. The EU, as well as the EU member states, frequently violates international law; the Western Sahara case, the defiance of security council rulings, and breaking the Lisbon treaty are a few examples.

Indeed, in conclusion, the EU grants supremacy to its own constitutional principles when they are in conflict with international law. In the Kadi case, the European Court stated:

“The obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the…Treaty”.

So there it is. I say again that I strongly support the Government’s position, and reject the amendments by the House of Lords.

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[Hilary Benn (Leeds Central) (Lab)]

Who would have thought that we would be here on 7 December—there are 24 days to go—with the Government wanting to put these international law-breaking clauses back into the Bill and the Brexit negotiations still going? I have always thought that there will be an agreement, but I must confess that in the last few days I have felt a bit gloomy. I do not know whether the announcement in the last 20 minutes that the Prime Minister and Ursula von der Leyen are going to meet later this week to pore over the areas of disagreement should raise our hopes or not. What do they say? It’s the hope that kills you.

Anyway, the truth about this Bill is out. The offending clauses are nothing more and nothing less than a piece of negotiating leverage, which we now know will be dropped the moment a satisfactory resolution is found to the questions that the Joint Committee is properly considering. That was confirmed in the Prime Minister’s statement this afternoon.

The Prime Minister’s dilemma with this Bill and, indeed, with the talks is best explained in this way. Four and a bit years ago, he famously decided to publish the second of two articles that he had written about Brexit. One of them was for leaving the EU, and the other was against. When he made that decision, he climbed on the back of what I would describe as the Brexit tiger. It has taken him on quite a journey—it has taken him through the door of 10 Downing Street, which I am sure was his hope, but there is just one problem: it is not entirely clear he knows how to get off the tiger in order to secure a deal. He is the prisoner of the fateful decision that he made.

It is not that he was not aware of the consequences, because thanks to Tim Shipman, we now know what he wrote in the other article, which was not published. He said:

“Almost everyone expects there to be some sort of economic shock as a result of a Brexit. How big would it be?”

Well, we know the answer, because the Government have done their own economic assessment, and we saw what the Office for Budget Responsibility reported a couple of weeks ago: the economy is hit either way, but it is much worse if no agreement is reached.

The question now for the House and for the negotiators is, how do we get out of this? It is clearly not by the clauses that the Government are seeking to put back in the Bill. One of the reasons why the Government are having so much trouble with the level playing field negotiations is the existence of those clauses. Let us think about this for a moment. Why do Ministers think that the EU negotiators are so keen to tie down commitments that both sides will be asked to give in the negotiations? It is for the very simple reason, as my right hon. Friend the Member for Doncaster North (Edward Miliband) made clear in another brilliant speech, that we have shown that we are not to be trusted to keep our word. If a country is in the process of negotiating a new international treaty, it does not do wonders for its credibility if it is busy preparing to tear up part of the previous treaty that it negotiated with the same partners and signed just over a year ago.

The other issue is sovereignty, about which we have heard an enormous amount today. If sovereignty is absolute, and if we were to take it to its logical and absurd conclusion, for example, why should we be negotiating on fish at all? Would not giving any of “our fish”, as some people describe it, be a betrayal? If sovereignty is absolute, what are we doing in the World Trade Organisation? As the right hon. Member for North Somerset (Dr Fox) knows only too well, the WTO has a dispute resolution body that gives other countries, if they win a case against the UK, the ability to impose countervailing measures upon us, including tariffs. How could that be acceptable to a sovereign country that claims complete sovereign control? The truth, of course, is that sovereignty is not absolute. It is what we choose to do with it that matters, and we cannot avoid that choice. We cannot avoid that choice in these negotiations, because the only way out of this mess, in the interests of the country, is for both sets of negotiators to grasp the heavy responsibility that they have at this moment to make the choices that will secure the deal that the country desperately needs.

In conclusion, since German car makers, as was once rather fancifully suggested, are not going to turn up late in the day to rescue the negotiations, a bit like Blücher at Waterloo, we have to save ourselves. That is what we have to do at this point. Whatever the bluster, I simply say to those on the Front Bench that the country will not forgive this Government if they impose no deal upon us.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

It is always an enormous pleasure to follow the right hon. Member for Leeds Central (Hilary Benn). For decades, the EU was a train that we had to stay on, and now Brexit is a tiger that we have to get off. There is not time to re-engage in the old arguments about sovereignty, but it was very telling that he thought the importance of sovereignty was what a country chooses to do with it, not what it is imposed with. There is no international organisation of which we are a member in the world that is like the EU, which imposes its will on us through our own laws and courts; every other international body—such as the WTO, to which the right hon. Gentleman referred—is a voluntary association governed by international law, which is a completely different matter.

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[Andrew Bowie]

The hon. and learned Lady knows full well that this place will not have the last say over vast swathes of devolved powers. No powers are being taken back to this place. In fact, we are giving more than 70 powers to the Scottish Parliament and the Scottish Government as a result of our leaving the European Union. Professor Keating, who I know very well, as he was a professor of politics of mine at the University of Aberdeen, knows that it will not be the first time I have disagreed with him on such a point.

[Sir Bernard Jenkin]

Will my hon. Friend give way?

[Andrew Bowie]

I will not, because I know there are far more people who want to speak.

It is not just me who says it is not a power grab. Former SNP deputy leader Jim Sillars said that

“Nicola Sturgeon has been dancing up and down on the ball saying, you know you’re stealing powers from us. The irony is that if she gets these powers, she wants to hand them all back to Brussels. That’s a massive contradiction in her policy position.”

The hon. and learned Member for Edinburgh South West (Joanna Cherry) cannot shake her head and disagree with that, because that is a fact.