United Kingdom Internal Market Bill

Edward Leigh Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 29th September 2020 Commons Chamber

[Sir Edward Leigh (Gainsborough) (Con)]

Will the Minister give way?

[Paul Scully]

I will happily give way to the mover of that amendment. [Interruption.]

[Sir Edward Leigh]

Actually, to be fair, the Minister has just been dealing with new clause 8, which I have moved. I am very grateful for what he has said. He seemed to suggest that the new clause was not in itself wrong, but was not necessary. But will he accept that, certainly when this Bill goes to the House of Lords, it might be helpful for the Government to produce an idea like this as another arrow in the armoury to reassure those who want to use international law in the right way, if the EU acts unreasonably? The advantage of a unilateral interpretive declaration under the Vienna convention, is that we can do it in this way, so I am grateful to the Minister.

[Paul Scully]

I thank my right hon. Friend. It is right that he gets to speak as it is about his amendment. He is trying to be helpful in this regard, and I know that Ministers in the other place will take heed of his comments as they engage with colleagues there.

--- Later in debate ---

[Sir Edward Leigh]

I rise to speak to new clause 8 in my name. I shall attempt, within your time constraint, Madam Deputy Speaker, to get these complex legal and international law arguments on the record.

The problem is not the possibility of the UK breaking international law, which we do not want to do, obviously; the problem is the UK’s being prepared in case the EU fails in its willingness to interpret the protocol on Northern Ireland in a proper way. We have a legal tool at our disposal that would help clarify the situation in accord with international law: a unilateral interpretative declaration. My new clause 8 describes in some detail how that could be done. It would help our negotiating position in securing an EU trade agreement and, just as importantly, it would help get the Bill through the House of Lords.

Many in the other place will be concerned about the possibility that the UK Government may be opening the door to breaking international law. We pride ourselves on the rule of law and we should maintain our commitment to it. The real problem is whether the EU is willing to implement the protocol in a reasonable and effective manner. We do not need to break international law; we need to prevent the EU from breaking international law by violating its treaty commitments.

The EU has suggested that it would break its commitments in the protocol. It has said that it would consider breaking its commitments to allowing food from England, Wales or Scotland to be sold in Northern Ireland if the UK did not make concessions on the free trade agreement. That is on the record in Michel Barnier’s statement on 10 September. In the light of that, the Government understandably introduced this Bill, so that we can act when the EU threatens the economic integrity of the United Kingdom.

We are committed to implementing the protocol, which we signed up to, but we are only committed to what we actually agreed to—no more and no less. This is the nub of the problem. We are not bound by new interpretations of the protocol that the EU might seek to impose on us. We are not required under international law to accept all the proposals that the EU tables in the negotiations. We cannot accept any bargaining linkage being made between implementing what has been agreed under the protocol in good faith, and what has still to be agreed about our future relationship.

There is a compromise available. We can use international law to ensure that the EU meets the commitments it made in the protocol. We can assert our position, as I have argued, in a unilateral interpretative declaration, if—and only if—the EU behaves unreasonably.

The initial version of the Northern Ireland protocol agreed to in November 2018 could have bound us indefinitely to maintaining full alignment with the EU’s single market regulations and membership of the customs union. In an Adjournment debate in February 2019, I advocated the use of a conditional unilateral interpretative declaration to assert the temporary nature of the backstop. That word “temporary” was then in the protocol.

My right hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who was then the Attorney General, took this up to seek a time limit or a withdraw mechanism from the backstop. That was the basis of documents tabled on 11 March 2019 for the second meaningful vote. Unfortunately, the unilateral declaration issued then was not made strong enough to guarantee an exit from the backstop according to many people in this House. The Government, I believe, should have asserted a stronger interpretation.

Nevertheless, in December last year, we succeeded in getting rid of the backstop. The question is whether the agreed Northern Ireland protocol will be implemented in good faith. The protocol is a good compromise. Rather than abandoning international law, we must use the full provisions of international law to ensure that the protocol is implemented as we agreed.

The general principles of international law applicable to the withdrawal agreement and the protocol are spelled out in the 1986 Vienna convention on the law of treaties. In addition, in 2011, the International Law Commission of the UN codified a guide of practice for handling disagreements about the interpretation of treaties. That allows an individual Government to issue a declaration on their interpretation of the meaning of specific aspects of a treaty. The UK can do that unilaterally, without any agreement from the EU.

To leave the realm of politics and enter the realm of international law, any unilateral interpretative declaration must be sent to the depositary of the treaty. I proposed in an amendment in Committee that the Government should use this declaration to assert their position if the EU were to fail to implement aspects of the protocol. My new clause 8 now spells out in some detail how the declaration could be used. Subsection (1) specifies that the Government should invoke this procedure if the EU fails to carry out the requirements of the protocol. Subsection (2) specifies that the Government should ensure that their interpretation of the protocol is justified by, and in accord with, the provisions of the Vienna convention.

It is important to note that the Vienna convention covers the need to act in “good faith” and the need to avoid results that are “manifestly absurd or unreasonable”. Subsection (3) therefore requires the Government to obtain parliamentary approval before they make a legal challenge, and subsection (4) requires the Government to report back to Parliament on whether the EU has approved the interpretation. If the dispute were to continue, there would be a choice: we could seek negotiations to achieve a compromise in the Joint Committee, or we could invoke the withdrawal agreement’s arbitration procedures. If the dispute could not be resolved and arbitration were required, we would have acted in good faith—that is the point—in international law. We would have established our case and started arbitration on our own terms.

The Government are right to challenge the EU. We can uphold international law. We can challenge the EU with proper legal methods. We do not need to accept its interpretation of the protocol. When we face unreasonable demands, we have a chance to state our interpretation of what we agreed when we signed the protocol. We can challenge the EU with a unilateral interpretative declaration and, hence, defend our position in full accord with international law. I ask the Government to consider positively this compromise, on which we can all agree and which is offered to the Government in good faith.

[Caroline Lucas]

I rise to speak to new clause 6, which is in my name. Its intention is to ensure that those seeking public money for economic development under this legislation are obliged to undertake a climate and nature emergency impact assessment.

The powers set out in part 6 of the Bill provide assistance in a way that would be subject to very few restrictions. New clause 6 is designed to be a genuinely constructive and practical suggestion to help Ministers see the serious gap in the legislation, and to help them to assess and decide whether the money they are dishing out is trashing the environment or supporting its restoration.

Both the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Sutton and Cheam (Paul Scully), earlier this afternoon, and the Minister of State, Cabinet Office, the hon. Member for Norwich North (Chloe Smith), last week, said that the UK Government have a determination to see climate and environmental goals achieved. Well, I am very glad to hear that, but it makes me even more perplexed that they are not willing to accept what I regard as a helpful and friendly amendment. In fact, both Ministers have also said that it was not necessary to introduce any kind of conditions on the financial assistance powers in the Bill, because apparently there is already an overarching legal and policy framework for achieving those goals. That is not good enough. We need commitments that would make those fine words actually bite when it comes to the wide financial assistance decisions set out in the Bill.

The Bill has conferred astoundingly broad powers on Ministers, but without clarity or direction over the mechanisms that they will use to judge whether they are upholding policy commitments—and vague references to overarching frameworks just will not cut it. The bottom line is that, in order to tackle the nature and climate emergencies that we face, the state must not risk supporting projects, companies or industries that threaten to undermine progress toward meeting climate, nature and environmental goals and targets. To avoid that risk, people need to be asking and proving how their requests measure up to climate, nature and environmental goals and targets, and the Government need to check.

The production of impact statements for any proposal for financial assistance will not only help to ensure that individual projects consider long-term sustainability, including avoiding or mitigating potential negative impacts, and maximising the benefits of delivering a green economy; it will also enable Governments across the UK to better understand the aggregate impacts of such financial assistance, and measure them against the goals and targets to which they have already committed themselves. In other words, impact statements would be not an additional burden, but a necessity to reach stated goals. They would also provide a useful opportunity to demonstrate the positive impact that ambitious and well directed investment can bring. The statements would help Ministers—and, indeed, all of us—by providing the benefits of public accountability and value for money, as well as important integrated policy making to tackle the nature and climate crises.

Let us not forget that we have had so many commitments —at least in fine words—from this Government on keeping high standards post Brexit. The Conservative party manifesto promised

“the most ambitious environmental programme of any country on earth.”

It is extraordinary that a Government who say that balk when it comes to any practical measure that would enable them to implement that commitment.

Just yesterday, the Prime Minister’s comments at the signing ceremony of the Leaders’ Pledge for Nature sounded positive. He said that we need to turn words into action, and I could not agree with him more. He said that we need ambitious goals and binding targets and, in his characteristic language:

“We cannot afford dither and delay because biodiversity loss is happening today.”

Yes, Prime Minister, it is, and this straightforward measure would enable him to deliver on the fine words by supporting a mechanism that is designed to achieve exactly that. Otherwise, words are cheap.

New clause 6 is not just a “nice to have” or a green add on; it is a vital way of ensuring that we implement our existing commitments. In May last year, Parliament passed a motion declaring a climate emergency. Marvellous —I was the first to be pleased about that, but we need a mechanism to ensure that subsequent policy making is in line with that commitment. Otherwise, it is meaningless. We have heard time and again how post Brexit, the UK will be able to have higher environmental standards than the EU, yet the next round of European structural funds will have tackling climate change and addressing the just transition as a major theme. Surely at the very least we should aspire to do the same.

Evidence that we must act responsibly and urgently is mounting every day. As I have already said, the UK Government are failing to meet as many as 17 of the 20 biodiversity targets that we set ourselves 10 years ago. We have plenty of examples of money that is being spent in a way that undermines environmental sustainability, so we know we need to act.

Just this morning, Professor Simon Lewis of University College London reminded us that the biodiversity crisis is not a problem in someone else’s backyard; it is happening in the UK. We live in one of the most nature depleted countries on earth. We have lost 55% of our forest birds in 50 years, and 97% of our flower-rich meadows since the second world war. We have just 13% woody cover, compared with an EU average of 38%. Scientists regularly document huge declines in beetles, bees, butterflies, moths and ladybirds.

Those things do not happen by accident. They happen as a direct result of public policy. They happen as a direct result of where money is spent. It is therefore critical that, if and when Ministers choose to exercise the powers in the Bill, they do so in a way that is consistent and compatible with any environmental and climate goals and targets in the relevant part of the UK.

I know time is short, Madam Deputy Speaker, but I want to say how much I support new clause 1, which has been tabled in the name of the shadow Business Secretary, the right hon. Member for Doncaster North (Edward Miliband). His powerful speech to the House on Second Reading left the Prime Minister embarrassed and exposed. Embarrassed because this is frankly all a bit of a game for a Prime Minister who does not like to lose, and exposed because the Prime Minister is at least supposed to uphold international law. In this case he is asking Parliament to give his Government authorisation to break a treaty that he negotiated and signed last year, and on which his whole general election campaign was based. You almost couldn’t make it up, but that comes after the Prorogation scandal, and a string of attacks on civil servants and the operations of our democracy, delivered by a Prime Minister who thinks little of shutting down Parliament when it gets in his way.

Under any Government of principle, new clause 1 would not be contentious, but sadly it is needed tonight because the Government’s amendment still leaves us with a Bill that clearly authorises Ministers to break international law. This is not a matter of left or right, or of leaving or remaining in Europe; this is about our democracy. To vote for the “treaty undercut” clauses in this group is not to provide a safety net, as the Chancellor of the Duchy of Lancaster desperately suggested yesterday. Instead, it is to fire a cannon ball through the safety net of democratic principle. By contrast, new clause 1 gives MPs the opportunity to demonstrate the immovable principle that it is outrageous for any Prime Minister, any Attorney General, any Justice Secretary—indeed, it should be out of the question for any MP—to be part of legislation that authorises Ministers to break the rule of law. So I hope that every Member of the House will vote for new clause 1, and against the indefensible precedent that the Government seek to set.

Government amendment 13 is yet another attempt by the Government to avoid scrutiny of their actions, this time by the courts. It is basic to our way of life and to our history that no one is above the law, but clause 45 is a crude attempt to put Ministers above the law. Not only are Ministers seeking the power to legislate in breach of international law, but Parliament is being asked to pass a law whose aim is obviously to prevent any effective constraint on Ministers. This should be out of the question for any Government with any respect for the rule of law. Again, none of the Law Officers, no Minister and no MP should be prepared to vote for such an attack on the basic principles of our constitution.

United Kingdom Internal Market Bill

Edward Leigh Excerpts

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

[Sir Edward Leigh (Gainsborough) (Con)]

Of course we all want agreement and we all want a trade deal, but what happens if relations break down? Will the right hon. Gentleman confirm that, first and foremost, the Labour party is a Unionist party that believes 100% in the economic integrity of the United Kingdom and will not act as a poodle for nationalists? Can he give me an absolute guarantee that if relations break down and we reject this Bill, we will not be in a very difficult place in terms of the economic integrity of the United Kingdom?

[Edward Miliband]

The right hon. Gentleman and I agree absolutely about the United Kingdom, and I am now going to come on to why I have such fear about this Bill. I fear that it is ignorant and blundering on the most important question about the way in which we share power across the United Kingdom. My fear about that and about the Bill is that it has given those who want to undermine the United Kingdom a further weapon with which to do so. That is why I want to turn to the devolution aspects of the Bill.

I particularly want to put on record my thanks to Lord Hope, former Lord President of the Court of Session and Lord Justice General, for his work on the Bill. The common frameworks are a complex issue, but it is worth spending some time explaining them. The common frameworks process—the Government deserve some credit for this—was established in 2017 to enable us to agree high standards across the United Kingdom and manage any divergence in those standards. The problem with the Bill is that there is no mention of common frameworks. Instead, it provides a blunderbuss principle that the lowest standard in one jurisdiction is the standard for all, with no voice for the devolved nations.

Take the issue of single-use plastics, which is a very concrete example. The Welsh Government want to legislate to ban the use of single-use plastics, but the problem is that the Bill as it stands enables the UK Parliament to simply come along, without discussion and without a voice for the Welsh Government, and legislate to stop them doing that. In a written answer earlier this month, they said very clearly that they believe that they will not be able to make that legislation stick. The Bill in its current form allows the UK Government simply to undercut the powers of the devolved Administrations in key devolved areas, including the use of plastics, other environmental standards, animal welfare and other consumer standards. That is very serious, because the common frameworks are a way in which we can both secure high standards—this is the intention of Lord Hope—and manage divergence when it occurs across the United Kingdom.

--- Later in debate ---

[Dr Liam Fox (North Somerset) (Con)]

When I voted to leave the European Union, it was not primarily over concerns with immigration or concerns about how we would divvy up the money that came back from the contributions we would not be making to the European Union; it was entirely as a constitutional lever. I believe in the principle that the people who live under the law should have the right to choose the people who make the law. Incidentally, that also shapes my views on how the House of Lords should be reformed. However, that principle could not survive as soon as we had the direct application of EU law and the use of the ECJ. Therefore, for me that meant that there was only one choice, which was to leave the EU. I explained that to an American audience by saying that, if in the United States there was a court in Ottawa or Mexico City that could override the US Supreme Court and there was nothing legislators could do in the US, how would they like it? They said, “Absolutely, we would never ever accept it.” That, for me, is the key principle.

When I first heard of this internal market Bill, I was at the World Trade Organisation in Geneva and, frankly, I was shocked to hear that the Government were intending to break international law. That was until I came back and looked at the provisions themselves, and found out that nothing whatsoever was actually being broken in this Bill. In fact, nothing was actually being done in this Bill, other than setting out a set of contingency measures, which is of course a well-accepted legal principle.

[Sir Edward Leigh]

Will my right hon. Friend give way?

[Dr Fox]

I will give way once—to my right hon. Friend.

[Sir Edward Leigh]

There has been virtually no discussion during this entire debate about the fact that this is a safety net, which we hope will never be used. If we are on the high wire—and when we are dealing with the EU, we are on the high wire—we may not want to use a safety net, but it does no harm to have one.

[Dr Fox]

I entirely agree. I have used the analogy myself that this is a lifeboat that we hope we never have to launch. We hope the ship will never go down because we will reach a trade agreement, and we should reach a trade agreement because, as I said earlier in the House, there has never been a trade agreement that has begun with the two parties in complete identity of trade law, of tariffs and of regulation. It should be, if it was only about trade, an easy agreement to reach, but it is not just about trade. The main stumbling blocks are constitutional—the very constitutional issues that made me want to vote to leave the European Union in the first place.

There are those who have said that this Bill is outrageous and that it sets new precedents, but in fact it says only that, under certain circumstances, domestic law might have to be used to overrule treaty law. Is it revolutionary? Is it unprecedented? Well, on 12 February 2016, the German federal constitutional court said:

“Treaty overrides by national statutory law are permissible under”

the German constitution. It added:

“Under the system of the Basic Law, international treaties have the same rank as statutory federal law. Therefore, they can be superseded by later federal statutes that contradict them.”

That is merely the power that the United Kingdom Government are seeking to use as a contingency power, should they need it, yet nobody screams about the German Parliament being able to exercise an identical power.

In the short time that I have, I want to make a couple of comments about the value of free trade in the internal market to the Union itself. The 1707 articles of Union between England and Scotland, and those between Great Britain and Ireland in 1800, abolished all customs duties between the different parts of the United Kingdom. Free trade across the whole of the United Kingdom was not only integral to the development of the whole of the United Kingdom from the industrial revolution on, but it was particularly important to Scotland and Ireland, whose citizens could freely trade with the much bigger English market—something that exists today. That point was made very well by the right hon. Member for East Antrim (Sammy Wilson) earlier in this debate.

It is easy, given how successful it has been, to forget how important that single market is, and how easily it could be damaged and what the what the implications would be if it were interfered with or restricted. Of course, that is why the hon. Member for Glasgow North (Patrick Grady)—I am sorry that he has left his place—was unwilling to engage in debate with me last week when I asked what estimates had been made by the Scottish nationalists of the break-up of the UK internal market in terms of the Scottish economy. He said, “We will come and make those arguments in due course,” because they do not want to hear those arguments aired in front of the Scottish people at the present time.

The devolved legislatures were created after the UK joined the European Community and then the European Union. Because the single market rules apply to regional Governments and legislatures as well as central Governments of member states, there was no pressing need during our membership of the European Union for specific UK-based rules maintaining the UK internal market against fragmentation. Brexit changes all that, and that is why I believe that we should reject the Lords amendments tonight.

However, in supporting the Government, I just ask this one question: when did the Government’s legal advisers advise Ministers that the withdrawal Act indeed, by direct application, threatened the internal market of the United Kingdom? It was not something that I heard discussed at the time, but I would like to know the answer to that question, as would many of us who are supporting the Government tonight and who believe that what we are seeing is proportionate contingency planning, fulfilling the duty of the maintenance of the UK internal market, the key part of the United Kingdom itself.