United Kingdom Internal Market Bill

Jeremy Wright 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

[The Prime Minister]

I thank my hon. Friend very much. The best way for us all to be sure that such lamb can be sold throughout the whole United Kingdom is to vote for this Bill, and to protect the economic integrity of the UK. [Interruption.] To answer the questions that are being shouted at me from a sedentary position, last year we signed the withdrawal agreement in the belief, which I still hold, that the EU would be reasonable. After everything that has recently happened, we must consider the alternative. We asked for reasonableness, common sense, and balance, and we still hope to achieve that through the joint committee process, in which we will always persevere, no matter what the provocation.

[Jeremy Wright (Kenilworth and Southam) (Con)]

I am grateful to my right hon. Friend for giving way, and I want to ask him, if I may, about the ministerial code. When I was the Attorney General in the previous Government, I was happy to confirm that the ministerial code obliged Ministers to comply with international as well as domestic law. This Bill will give Ministers overt authority to break international law. Has the position on the ministerial code changed?

[The Prime Minister]

No, not in the least. My right hon. and learned Friend can consult the Attorney General’s position on that. After all, what this Bill is simply seeking to do is insure and protect this country against the EU’s proven willingness—that is the crucial point—to use this delicately balanced protocol in ways for which it was never intended.

The Bill includes our first step to protect our country against such a contingency by creating a legal safety net taking powers in reserve, whereby Ministers can guarantee the integrity of our United Kingdom. I understand how some people will feel unease over the use of these powers, and I share that sentiment. I say to my right hon. and learned Friend that I have absolutely no desire to use these measures. They are an insurance policy, and if we reach agreement with our European friends, which I still believe is possible, they will never be invoked. Of course, it is the case that the passing of this Bill does not constitute the exercising of these powers.

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[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I will endeavour to prove that the best advocacy can be the most concise.

There is a great deal in the Bill that I support and that is necessary, sensible and desirable. However, there is one important part of the Bill that creates very real difficulty for me and many others, and I want to go straight to the rub of that point. Part 5 of the Bill, as it stands, gives me real concern as to its leading the United Kingdom into a breach of our international obligations and the law that stems from them. That is, as many others have observed, not something that any country should do, save in the most extreme and pressing circumstances.

The difficulty arises in relation particularly to clauses 42, 43 and 45. They are different from the rest of the Bill, because they give very wide-ranging powers indeed to Ministers to disapply elements of the withdrawal agreement and the protocol, which have the force of international law, by regulation. These are measures of a very sweeping kind, involving any kind of legislation and any part of the agreement, not just those related to the protocol, and appearing to oust the jurisdiction of the courts in any respect. I question whether their being so wide can be justified.

My other concern is that the way the clauses are phrased at the moment runs the risk of bringing us into breach of our legal obligations before it is necessary. I heard what the Prime Minister said about an insurance policy, and I heard what the Lord Chancellor has said about a “break the glass in emergency” provision. That is fine, but it seems clear from the protocol that there are steps that must be gone through first and exhausted before that can properly be done. The most important part to bear in mind is that if article 45 is brought into force immediately after Royal Assent, we would at that point have disapplied the concept of the direct effect of European law, which is part of the agreement we signed up to and which this House passed less than a year ago. So bringing it into force on Royal Assent is needlessly provocative to our negotiations and needlessly undermines our reputation for sticking to the rule of law.

There are also provisions that bind us to act to resolve disputes only through the arbitration process, which is set out in the withdrawal agreement. Article 168, which we have signed up to, states that

“the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.”

There are detailed procedures and timelines for that.

It seems to me that we should be very careful about moving forward with bringing these clauses into force until every opportunity to resolve any dispute has been carried out through the arbitral mechanisms. Only then, and if it is necessary because the EU has not responded to a result of the arbitral mechanism—

[Jeremy Wright]

Does my hon. Friend agree that one thing that should give us some optimism about the use of the mechanisms that he is describing is the specific references to the defence of the Good Friday agreement and of Northern Ireland’s status as part of the United Kingdom in the protocol and the withdrawal agreement themselves?

[Sir Robert Neill]

My right hon. and learned Friend is absolutely right. That is, I think, the best approach for us to take. We should stick to the letter of those provisions, as that gives proper defence of our strategic interests. For example, there is the safeguard provision in article 16, which would enable us to act if, in extremis, the stability of the situation in Northern Ireland and the Union was threatened, but we could do that while maintaining the moral high ground and our intellectual reputation. I see that the Chancellor of the Duchy of Lancaster is listening. I hope that he will be able to go further than the Prime Minister, either tonight or in the course of debates on the Bill, and assure us that those provisions will not be brought into effect unless and until every one of the legal mechanisms open to us has been exhausted and unless and until there has been a specific vote of this House—not by a statutory instrument, which does not give enough scrutiny for such a constitutionally significant issue, but by a specific resolution. That is why my amendment seeks to give the Government an opportunity to have that “break the glass in emergency” provision, but without our triggering a breach of the international legal obligations before it is absolutely necessary.

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[Jeremy Wright (Kenilworth and Southam) (Con)]

The majority of the Bill is sensible and necessary for an effective United Kingdom single market when we are no longer subject to EU rules. My issue, as for others, is clauses 42, 43 and 45, which take what was agreed less than a year ago about the primacy of the withdrawal agreement over domestic law and reverse it. They are not a clarification but a contradiction of that agreement, and the Government are very clear about this: doing that would be breaking international law.

I agree that it is possible to break international law without automatically breaking domestic law. It is also true that Parliament is sovereign, and it can choose to break international law if it wants to, but the fact that an international law breach is not a domestic law breach and is not unconstitutional does not make it a good idea. The blatant and unilateral breach of a treaty commitment could be justified only in the most extreme and persuasive circumstances. The Government say that such circumstances are those in which no ongoing trade arrangement is made with the EU and where the Joint Committee established under the withdrawal agreement to resolve problems of interpretation is unable to do so, leaving the UK in an impossible position.

[Sir John Hayes (South Holland and The Deepings) (Con)]

That is the nub of the argument, is it not? These are exceptional circumstances. We are about to negotiate by far the most important agreement that this country has reached for the last 40 years. In those highly dynamic circumstances it is right that this Parliament should give the Government sufficient flexibility to get the best possible deal for Britain. That is what this is about, and that is why we should support the Bill.

[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.