United Kingdom Internal Market Bill Debate
Full Debate: Read Full DebateDepartment: Northern Ireland Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Northern Ireland Office
(3 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Walker
As I have said repeatedly, we are absolutely committed to the Good Friday agreement, and I can give the hon. Gentleman an illustration of that in UK law on the very next clause. I can assure him that amendment 48 is simply unnecessary. The protocol guarantees that there will be no hard border on the island of Ireland under any circumstances. We are fully committed to delivering on that and no power in the Bill makes any change to that. We have already included in law our commitment not to
“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU.”
That is set out in section 10(2)(b) of the European Union (Withdrawal) Act, which I was pleased to take through the House. For those reasons, the hon. Gentleman’s amendments are unnecessary and I urge him not to press them.
On amendments 43 and 47, I can offer hon. Members an assurance that the recognition and protection of rights are fundamental values of the UK. Our human rights framework offers comprehensive, well-established and effective protections within a clear constitutional and legal system. The Bill is compatible with the European convention on human rights, and the Minister who presented the Bill has given a certificate of compatibility, pursuant to section 19(1)(a) of the Human Rights Act 1998, in the usual way. We remain committed to the ECHR, as we have made clear time and again.
Further on amendment 47, the Government do not envisage any circumstances in which the powers set out in clauses 42 and 43 could be used to amend the Northern Ireland Acts of 1998 and 2006. That renders the amendment unnecessary. For this reason, the Government are not willing to accept the amendment. I hope that hon. Members will be reassured by our commitment on this very serious matter and will not press them.
New clause 6 would require the Government to
“use their best endeavours to seek through the Joint Committee…the disapplication of export declarations and other exit procedures”.
I appreciate the thought and sentiment behind the new clause, but I am happy to say that there is no need for it because, as I have already set out, the Government are committed to implementing the withdrawal agreement and the Northern Ireland protocol. We are continuing to work with the EU in the Joint Committee to resolve outstanding issues with the protocol, including export declarations. Although well intentioned, the new clause is unnecessary and I urge hon. Members to reject it.
I will now turn to the other amendments on our safety net clauses pertaining to subsidy control. Now that we have left the EU, we have the opportunity to design our own subsidy control regime in a way that works for the UK economy. My right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy set out the Government’s plans in this regard in a written statement to the House on 9 September. Clauses 43 and 44 seek to mitigate the risks that stem from the European Commission imposing a broad interpretation of article 10. Ministers will still have respect for the rule of law and human rights when making regulations using these provisions, which is why amendment 56 is unnecessary. I remind the Committee that the purpose of the provisions in clause 43 is to strengthen our legal safety net and ensure that it is the Government’s interpretation of article 10 that UK public authorities must follow. That is why we must reject amendment 58.
Amendment 60 would amend clause 44 by limiting the scope of the Secretary of State’s interpretation of article 10 when notifying possible state aid to the European Commission. Given the complex and novel nature of the application of EU state aid law through the Northern Ireland protocol, it is the Secretary of State who is best placed to interpret and then make any possible state aid notification to the European Commission. The amendment would require the Secretary of State to ignore the safety net that the Government have proposed when making such a notification.
I will deal briefly with amendments 31 and 32. I recognise the spirit of the amendments, but I have to say that they are simply not necessary. An assessment of the legal implications of the clauses has already been provided in the Government’s statements of 10 and 17 September. Nor is there any need to make regulations defining “incompatible” or “inconsistent”, because these are self-explanatory terms. There can be no serious doubt what they mean and no further definition is required. The true intention of the amendments may be to seek to provide another point for parliamentary debate. If that is the case, I trust that the hon. Members who have tabled them will support Government amendment 66. On that basis, I urge them not to press the amendments.
Joanna Cherry
I respectfully remind the Minister that the SNP has 48 Members in the House, not just one MP. I am grateful to him for giving way, because he has dealt with amendment 43, which I tabled, but not with amendment 44. Does he understand that insofar as clause 45 seeks to oust the inherent supervisory jurisdiction of the Court of Session, it not only interferes in devolved matters but it is in breach of article 19 of the treaty of Union between Scotland and England? I know that he does not have a Scottish Law Officer to advise him, but can he take that on board and address it now?
Mr Walker
I am happy to look into the specific issue that hon. and learned Lady raises, but if she looks at the text in Hansard she will see that I addressed the point that she made about amendment 44. I mentioned a Government amendment that had been introduced on separate issues, but I am certainly happy to take that point away for consideration.
In conclusion, the clauses are a necessary protection to deliver our promises on unfettered access and to deliver what the protocol acknowledges on Northern Ireland’s place in the internal market and customs territory of the United Kingdom, and to respect the principle of parliamentary sovereignty.
Paul Blomfield
I thank the hon. Member for his intervention. I think the answer was provided by the Northern Ireland Secretary when he spoke to the House on the issue and he said that—let us all think on these words—
“yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4”.—[Official Report, 8 September 2020; Vol. 679, c. 509.]
On that, he was right. Article 4 does require that the UK ensures compliance with paragraph 1 of the withdrawal agreement, including our courts, disapplying
“inconsistent or incompatible domestic provisions”.
Article 5 makes it absolutely clear that we have an obligation to
“refrain from any measures which could jeopardise the attainment of the objectives of this Agreement”,
which, as the Northern Ireland Secretary made clear, is the purpose of clauses 41 to 45. In adopting them, we are in breach of international law and unsettling the situation in Northern Ireland, to which the Minister rightly referred. Indeed, the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, who is a widely respected voice, said that the Government’s actions “may well undermine trust”.
Joanna Cherry
Does the answer to the question raised by the hon. Member for Stone (Sir William Cash) about the German constitutional court not lie in what our own United Kingdom Supreme Court said at paragraph 55 in the case of Miller v. Secretary of State for Exiting the European Union? Our own Supreme Court said that
“treaties between sovereign states have effect in international law and are not governed by the domestic law of any state.”
Is that not the answer under the domestic law of the United Kingdom?
Sir Iain Duncan Smith
That is why I gave way to my right hon. Friend—because he was there. I think he was a very good Minister too, by the way, for what it is worth.
The point is that for 10 years, Labour Governments and other Governments simply refused to put prisoners’ voting rights through. Finally, there was a fudge negotiation, where not all of what was asked for was agreed, but it was agreed that what had been done, I think on furlough—as I recall, prisoners on furlough had voting rights—was okay. That was not what was asked for.
Let us not be too pompous about this idea that international law is some God-given gospel that says, “Absolutely nobody can ever trespass away from this.” Many of these things are fudged anyway, and implementation is very important. I come back to section 38, which my hon. Friend the Member for Stone (Sir William Cash) initiated. That made it very clear that we would, if necessary, place our constitutional law ahead of both of those.
I make that point because in truth, we are now in exactly that state. That is why I believe that I can happily vote for this tonight. I am happy that, following the debate between my hon. Friend the Member for Bromley and Chislehurst and the Government, they have tabled amendment 66, which will give Parliament a chance to say yea or nay when the moment comes. But we are not in breach until we decide to implement this. This has been done before. It is important to show that we want to do this if necessary, but we would rather find an agreement between the parties.
I come back to the point that I made about good faith in principle. I see that Monsieur Barnier has threatened our negotiators that, if they do not agree with him—he has not, by the way, wanted to move anywhere near the Joint Committee to discuss these matters—the EU will, if necessary, not give us the status of third country. That seems a bizarre threat to make. The list of third countries, which my right hon. Friend the Member for Chipping Barnet (Theresa Villiers) mentioned, is long and peculiar. Belarus, for example, which we watch almost nightly on the television, would have third country status. We would not have it, apparently. Others include the Central African Republic, China, the Islamic Republic of Iran—the list goes on. I think there are now 137 countries that would have third country status, but apparently to Mr Barnier, it would be quite acceptable for a country that has been very close to the EU for years to not have third country status. I think it is a hollow threat, but it is a peculiar threat to make, and it gives an indication of bad faith.
The EU is meant to avoid bad faith in this, and so are we. The whole idea of the Bill is to say, “Stop. Let’s consider this again. We do not want—and you should not want—to end up in a situation where we are running around on your laws. This is not what the agreement was meant to be, and we are not prepared to see our constitutional settlement trashed in the pursuit of your own vainglorious idea that somehow you’re going to keep hold of us and run us afterwards.” As my right hon. Friend said, we did not vote to be a subsidiary state; we voted for independence. That is the key point.
I am going to vote for this Bill, and I vote for it with a clean heart. I vote for it because so many areas—from state aid, to transfer of goods and agriproducts to labelling—will be affected unnecessarily. If the EU seriously wants to help and to get this done, it needs to return to the table, go into the Joint Committee as it said it would and accept what we are saying: we will not allow our constitution to become the prisoner of an EU that wants to have all power over the UK.
Joanna Cherry
I rise to speak in favour of amendments 43 and 44, in my name, and to support the amendments tabled by the Scottish National party, our friends from the SDLP and our friend from the Alliance party.
I will focus my comments on my amendments, which I tabled to work out just how far this Government are prepared to go in ousting the jurisdiction of the domestic courts in relation to judicial review and review under the Human Rights Act in clause 45, as it appears on the face of the Bill. I also wish to highlight, as I mentioned in an intervention on the Minister, that, in so far as clause 45 seeks to restrict judicial review in Scotland by circumscribing the supervisory jurisdiction of the Court of Session, this not only trespasses into devolved territory but may well breach another treaty: the treaty of Union between Scotland and England, article 19 of which preserves the independence of the Scottish legal system.
Before I address my amendments in detail, for the avoidance of doubt, my primary position—and I find myself curiously on the same ground as the right hon. Member for Maidenhead (Mrs May)—is that clauses 41 to 45 should not stand part of the Bill. Everything we heard from the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) was designed to hide from us the fact that we are talking about a bilateral treaty that was entered into by the Prime Minister and the United Kingdom less than a year ago, to deal with a specific situation that arose between the United Kingdom and the European Union; and the most controversial part of that treaty—the one dealing with Northern Ireland and the north of Ireland—is the one that this Government are seeking to drive a coach and horses through. That is what we are talking about, and that is what is so wrong.
Joanna Cherry
I will make some progress.
Such excuses as those that the Government’s Law Officers who remain in post have sought to make for this do not stand up. I am very proud, as a member of the Scottish Bar, that Lord Keen of Elie resigned last week, and I am proud of the reasons he gave for his resignation. The only thing I would say to him is, “What took you so long, Richard?”, but apart from that I am very proud. I think it will be very difficult for the British Government to find anybody of suitable seniority from the Scottish Bar to step into his shoes, but I am waiting with some amusement to see who they might find.
Joanna Cherry
No, I am going to make some progress.
It is what we would call at the Scottish Bar a load of old mince. That is not just my view; as I said in an intervention, it is the view of the United Kingdom Supreme Court, which said in the first Miller case, at paragraph 55, that
“treaties between sovereign states have effect in international law and are not governed by the domestic law of any state.”
I am terribly sorry to disappoint Conservative Members, but no matter how much they love their doctrine of parliamentary sovereignty—no matter how much it means to them—it cannot trump the obligations freely entered into by their Government under international law.
Joanna Cherry
No, I am not going to give way.
It simply does not work that way: Britannia does not rule the waves any longer and has not done so for some time.
I regret to say that while I have the greatest respect and the highest regard for the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Government amendment that his efforts have secured is wholly inadequate to meet both domestic and international concerns about this Bill. I cannot do much better than repeat what the Irish Foreign Minister said this afternoon: a Government with an 80-seat majority having a parliamentary lock is not much of a reassurance to any of us. I really do not think I need to say any more than that. Once more, we have a ruse to solve the problems of the Conservative party rather than a ruse to address our international legal obligations.
My amendments 43 and 44, as I said, seek to deal with clause 45. The English Bar Council and the Law Society of England and Wales have said of clause 45 that it
“would exclude judicial review of any regulations made under clauses 42 and 43 on grounds of incompatibility with domestic law…as well as international law.”
That exclusion of judicial review would also mean excluding any human rights review under the Human Rights Act or, indeed, the Equality Act 2010. As my hon. Friend the Member for Belfast South (Claire Hanna) said in her very eloquent speech, human rights are of course integral to the Good Friday agreement. It is a travesty that regulations made under clauses 42 and 43 should not be subject to judicial review or to human rights review across Great Britain, but a particular travesty in Northern Ireland. It undermines not just the principle of the rule of law but the principle of access to justice. It also contravenes article 4 of the withdrawal agreement, which the British Government freely signed up to, in which they undertook to ensure a right for individuals to rely directly on withdrawal agreement provisions.
It is difficult to be certain how the courts would interpret an ouster clause such as clause 45, but precedent suggests that it would be quite hard for them to uphold it unless it is expressed in unequivocal terms. My amendments seek to clear this up. Amendment 43 would exclude the Human Rights Act and the European convention on human rights from the definition of domestic and international law, and amendment 44 would ensure that
“nothing in Clause 45 ousts the jurisdiction of domestic courts in respect of judicial review of regulations made under Clauses 42 and 43.”
Subsequent to my tabling those amendments, the Government tabled amendments 64 and 65, which appear to acknowledge that judicial review claims could still be brought in certain limited circumstances. I am interested to hear from the Minister what those circumstances would be. Do they include the normal judicial review grounds of illegality, irrationality or procedural impropriety, or will they also include review on the grounds of human rights? I look forward to hearing from him on that.
My final point is the most important point from a Scottish point of view. In so far as clause 45 seeks to interfere with judicial review in Scotland, it is interfering with a rather different beast from judicial review in England: the inherent supervisory jurisdiction of the Court of Session in Edinburgh. In doing that, it strays into devolved territory and would therefore require a legislative consent motion, which I very much doubt would be forthcoming. Put simply, the Scottish Parliament is not in the business of ousting the court’s jurisdiction on judicial review or human rights grounds—nor should it be and neither should this Parliament.
Most importantly from a Scottish point of view, the supervisory jurisdiction of the Court of Session is an inherent jurisdiction, which is not conferred on it by legislation but has been there since its inception in 1532. It therefore predates the treaty of Union between Scotland and England in 1707. Legislation seeking to narrow the scope of that inherent jurisdiction risks falling foul of article 19 of the treaty of Union, which preserves the independence of Scotland’s legal system.
In Scotland, rather to our surprise, we learned from the UK Supreme Court that putting the Sewel convention on a legal footing did not protect us from the Government driving a coach and horses through it. As the legal position stands in the United Kingdom, it seems that the Government can get away with passing primary legislation that interferes in devolved matters without a legislative consent motion. A breach of article 19 of the treaty of Union might be a different matter, however, because the question of whether parts of the treaty are so fundamental that they cannot be overridden by an Act of this Parliament has been considered by courts north and south of the border, but never entirely resolved.
I simply remind Members that the doctrine of the supremacy of Parliament is an English doctrine. Even Dicey, the great high priest of parliamentary sovereignty, was prepared to recognise that those who framed the treaty of Union between Scotland and England believed in the possibility of creating an absolute sovereign legislature that was still bound by certain unalterable laws. Many of us in Scotland believe that one of the unalterable laws of the treaty of Union is that this Parliament cannot interfere with the inherent jurisdiction of the Court of Session.
Both those problems—the in-roads into the devolved competence and the undermining of article 19 of the treaty of Union—will continue, notwithstanding Government amendments 64 and 65. I suspect that the Government have not really thought about that because, let us be honest, they do not often think about the impact on Scotland of what they want to do. Many people in Scotland, including my fellow members of the legal profession, will see that as another example of the Government’s total disregard for devolution and for Scotland’s separate and distinct institutions.
That is yet another reason why for Scotland the only way out of the mess that the Conservative and Unionist party has created over Europe is independence. I am glad that so many more people in Scotland are realising that daily. [Interruption.] It is a terrible dreadful bore for Conservative Members, but I remind them that we spend an awful lot of time listening to them bang on about the European Union and how it prevents them from having their way. Well, the Scots are pretty sick of this Parliament preventing Scotland from having its way.
Martin Docherty-Hughes
From a historical perspective, my hon. and learned Friend may agree that we need to go back to the 15th or 16th century, because this is a modern-day English reformation that seeks to impose in Scotland a modern-day Brexit prayer book. The Kirk rejected it then and Scotland will reject it now.
Joanna Cherry
That is correct, and it is worrying to hear my hon. Friend talk about the Kirk as he and I were both brought up in the opposite persuasion, but of course the Church of Scotland is also protected by the treaty of Union. So Members on the Government Benches can mock away; they should feel free to continue their mocking, which is seen in Scotland, and simply feeds the desire for Scotland to go a different way. They should keep up the mocking, because it is helping my party’s cause and it is helping the cause of my country.
Karen Bradley
It is an honour to rise today in this debate, following a number of very thoughtful contributions from right hon. and hon. Members across the Chamber. Although it is an honour to be called to speak today, I cannot pretend that it is an enjoyable experience, and that is because of the conflict that I feel. I feel desperately uncomfortable. I want to support the Prime Minister and the Government, and I know how the Minister feels. I have sat on that Front Bench far too many times, knowing that people behind me did not agree with my position.
I want to support the Prime Minister. I want to see the whole United Kingdom leave the European Union, respecting the referendum result, but I am desperately uncomfortable about being asked to vote to break international law. My instinct tells me that what the Government are asking me to vote for tonight is not the right thing to do or, to be charitable, may not be doing things in the right way.
The Government have been clear—they are on the record—that paragraph (5) is a breach of the withdrawal agreement, and we are angels dancing on the head of the pin as to when the law is broken. The law will be broken, if these clauses are used. It might be at Royal Assent, or it might be at commencement of the Act. It might be when the order is laid after the parliamentary vote—I thank the Government for agreeing to respect that and for agreeing to that amendment. I would like to hear from the Minister exactly what the Government’s position is now as to when the law will be broken, because no parliamentarian wants to walk through the Lobby knowing they are about to break the law.
Much has been made of the role that respecting the Belfast Good Friday agreement has in this debate. Let us be clear: the Belfast Good Friday agreement was the result of great statecraft and the power of words over violence, but it was also a triumph of compromise—or, as I used to be told I had to call it, accommodation. It was a settlement that meant that people living in Northern Ireland could be comfortable in their own identities, be that British, Irish, both or neither. As the hon. Member for Belfast South (Claire Hanna) said earlier, it was written at a point when both the UK and Ireland were members of the EU. I want to be absolutely clear: the Belfast Good Friday agreement was not contingent on our both being members of the European Union. It was a result of great statecraft, compromise and people being prepared to lead, and it would have happened if both countries had not been members of the same economic bloc. But the fact that both countries were EU members meant that the foundations of the Belfast Good Friday agreement—the Northern Ireland Act 1998 that this House passed—were written without the need to deal explicitly with matters that European citizenship and membership conferred. There was no need to write about citizens’ rights and how somebody who identifies as Irish and lives in Northern Ireland can exercise their right to be a member of the European Union when the country in which they reside is no longer a member of the European Union. It did not go into the points on customs and declarations. It did not talk about that because it did not need to. In fact, the reason we have the Bill—and I want to make it clear that I support the Bill as a whole; it is part 5 with which I have a problem— is because we need it, as the settlements on devolution were written at a time when we were a member of the European Union. We did not need frameworks on agriculture, because matters that will be settled by the devolved Administrations were governed by rules in Brussels.
I support our taking back control of those matters. Again, I have to make it absolutely clear that this has nothing to do with leaving the European Union. It is about how we make sure that we do so in the right way, so that I can hold my head up high and look people in the eye and say that I am proud to be a parliamentarian in this Parliament, which respects the rule of law. We have to remember that the world will judge us by the way in which we respect the Belfast/Good Friday agreement, even more than our breaking the withdrawal agreement.