United Kingdom Internal Market Bill

Debate between Edward Leigh and Bambos Charalambous

Monday 21st September 2020 Commons Chamber

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I shall speak against clauses 42 and 45 standing part of the Bill.

When five out of the last six leaders of the Conservative party and all five living Prime Ministers are on the same side of the argument, it is time to sit up and take note. It is not often that I agree with the right hon. Member for Maidenhead (Mrs May), but her remarks earlier in the debate were absolutely right. The Bill’s attempt to enable the UK to break an international agreement made in good faith is both reckless and damaging. There have been protestations that the measures in the Bill would be used only if an agreement cannot be reached, but their price is the trashing of Britain’s reputation as an honest broker. The Bill will forever allow those regimes that flout international law to counter any criticism and point a finger back at the UK. Is that really a price worth paying? Of course it is not.

How did we get here? The withdrawal agreement clearly made reference to the state aid rules in article 10 of the Northern Ireland protocol. The clue was in the title of the article—it was there in black and white: “State aid”. Did no one notice that section? Did no one read that? If not, the Government are grossly negligent. We have learned that article 10’s impact was made fully known to Ministers at the time. Even if it was not picked up in October, it was certainly referred to in those January days when Parliament debated the European Union (Withdrawal Agreement) Bill at length before passing it into law. If state aid was such a big deal, I am surprised that Government Members who were so ebullient in their support of the withdrawal agreement Bill are now so eager to say it was flawed and explain why we must pass this Bill instead. Why did they not kick up a fuss at the time? Where were they?

Many from the Conservative party will say that the measures in the Bill will be invoked only as a last resort, but even passing the Bill and allowing the Government to break international law is doing untold damage to this country’s reputation. The United Kingdom is a signatory to and has ratified the Vienna convention. One of the principles that underpin that convention is negotiating in good faith. Passing this Bill will fly in the face of the Vienna convention and give a green light to other countries wishing to break agreements. With the Government having taken this step, how will anyone ever trust anything that they say in negotiations ever again? Far from making trade deals easier, this legislation has made negotiations much harder, with the United States leading the outcry as it sees renegotiating the Northern Ireland protocol as a gross act of bad faith.

The former Conservative leader Lord Howard was right when he asked how the UK could reproach Russia, China and Iran for their actions when the UK itself was willing to break international law, as he lamented the damage to Britain’s reputation for probity and respect for the rule of law. Perhaps the Bill’s intention is to ensure that we leave the transition period without an agreement. Perhaps it is a negotiation tactic, or perhaps it is designed to be a big distraction. Whichever one of those it may be, saying that the Bill breaks the law

“in a very specific and limited way”—[Official Report, 8 September 2020; Vol. 679, c. 509.]

has diminished Britain’s global reputation.

Just as conspiracy offences carry the same maximum sentence as the original offence itself, even if the powers in the Bill were not used, the fact that the intention was there to do so is proof enough of bad faith. If the Bill passes, even if the power to disapply is not used, irrevocable damage has been done to Britain’s international reputation. Once that reputation is lost it will be very hard to get back.

[Sir Edward Leigh]

I wish to speak to my amendment 42. I am optimistic that we can reach a deal for the benefit of both the UK and the EU. My amendment outlines a way whereby in the event that the implementation period ends without a UK agreement we can still provide reassurance on the integrity of our internal market. The statement that EU negotiators made on 10 September, threatening, on the record, that the EU could control the movement of food from Great Britain to Northern Ireland was a regrettable escalation. The reality is that we do not need to accept its interpretation of the protocol. The alternative in the face of unreasonable demands is to state clearly our interpretation of what we agreed to when we signed the protocol.

As I highlighted in the debates last year—I also had numerous meetings with the then Prime Minister and the then Attorney General, and the ideas I promoted were incorporated in the previous Prime Minister’s last suggestion—there is an instrument of diplomacy that can be applied to treaties of this kind and it is called an “interpretative declaration”. Any party to a treaty can use this legal instrument on its own initiative. To emphasise that, we refer to it as a unilateral interpretative declaration. I am sorry to get into detail, but this is terribly important. The law is important and we must uphold the law, which is why I have concerns about the current direction the Government are taking. If the Germans have given the world great music and the French have given it great pictures, we have given the world freedom under the law, under parliamentary democracy, so we must remain within the law.

The point is that there may be a way for the Government to achieve their objective without breaking international law. If the EU were to act on its threat, it would violate our sovereignty—one of the most basic principles of international law. This is what lawyers call an act of bad faith in negotiations. It can also be called a manifestly absurd interpretation of the protocol, and under international law no one is bound by an absurd interpretation of a treaty that is entered into in good faith. If we use a unilateral interpretative declaration to spell out our objections, the EU must respond by either explicitly rejecting or implicitly accepting our interpretation. If it rejects, it must formulate and justify an alternative interpretation. If the EU goes along with a unilateral interpretative declaration made by the UK, it becomes a legally binding joint interpretation. If the EU opposes our interpretation, we have at least strengthened our negotiating position, pushed the EU negotiators on to the back foot and gained a basis for appealing to EU national Governments for new instructions to be given to EU negotiators.

Importantly, an interpretative declaration would hand the EU a way out of the escalation, which is why I am putting this forward as a constructive idea to get us out of the impasse we are in. So much of diplomacy is about saving face, and this would help the EU to do so, while securing an agreement. We would not be reopening or unpicking the protocol; we would just be making a small explanatory statement of our interpretation of what we had signed up to in good faith. Stage three of Brexit starts in January, when we will have established a series of new relationships between the UK, the Republic of Ireland and the EU. There have been deep and bitter rifts over this, first about the backstop and then about the new protocol, but two major improvements have taken place. First, we no longer have the backstop. Secondly, the new arrangement will last only as long as it has the consent of the people of Northern Ireland. Critics say, “Oh, but Northern Ireland is part of the UK. We will still be linked to the EU.” That is a valid point, but what clear alternatives are they offering?

We have a fundamental logical difficulty here. We have three important goals, and it is difficult to see how they can all be reached compatibly but in full: first, we want to support the Belfast agreement; secondly, we want to leave the customs union; and thirdly, we want a cohesive, sovereign, independent United Kingdom. We cannot reach each of those three goals in full simultaneously without a little bit of give and take, and that is all I am suggesting. We need to invoke the great British spirit of compromise. It may be called muddling through, but it is what we do best.

It is the same in the family of communities that is the United Kingdom and the family of nations in the world. We need to make sacrifices in order to work together. With a little bit of malleability, making some tweaks to the integrity of our internal market, we can preserve the peace in Northern Ireland that has taken so long to achieve. Equally, if we are making some adjustments and sacrifices, the European Union needs to sacrifice its rigid attitudes. That is the compromise I propose, and I hope it is helpful to the debate.