United Kingdom Internal Market Bill

Joanna Cherry Excerpts

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

[Paul Scully]

I will turn to new clause 7 in a second, but clearly we will treat Northern Ireland equally.

Amendments 2 to 11, 24, 27, 28 and 35 to 38 are technical changes to remove sources of potential confusion in the drafting. Amendments 19 and 21 provide fuller clarification that a wide range of agricultural processes are considered to be in scope when we refer to the production of goods. Amendment 20 ensures that the UK Government and devolved Administrations can continue to respond to specific biosecurity threats arising from the movement of animals and high-risk plants and that they are excluded from the mutual recognition and non-discrimination principles of the Bill.

Amendments 22 and 23 clarify the meaning of clause 16 that a change to the conditions attached to an authorisation requirement would bring it in scope of part 2 of the Bill. Amendment 26 ensures that the exemption in clause 23 covers the replication of non-statutory rules as well as a re-enactment of legislation. Amendments 12 to 15 ensure that the higher courts in England and Wales, Scotland and Northern Ireland may make declarations of incompatibility in respect of the regulations under clauses 42 and 43, but may not quash them. That will ensure that, in the unlikely event of a violation of convention rights, there is a remedy available through the courts.

[Joanna Cherry (Edinburgh South West) (SNP)]

Notwithstanding the terms of amendments 12 and 13, can the Minister tell us whether the Secretary of State continues to be confident that the statement he has made in terms of section 19(1)(a) of the Human Rights Act 1998 is accurate?

[Paul Scully]

We have been quite clear in the approach that we have taken in terms of the human rights impact, so I am confident that the Secretary of State has talked about that.

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[Sir Robert Neill]

I am not sure whether or not that is an argument for Brexit; on that basis, the Don Pacifico affair was a great statement of national sovereignty, but I do not think it was a great triumph of intellect, integrity or national interest. Leaving that to one side, I accept that there will be a number of occasions when Governments may have departed from their international obligations, but that does not make any of them desirable and it does not mean that we should not seek to limit the circumstances in which that might occur to the barest necessities. So I think we have some common ground there, or at least I hope that we have. That is why I welcome the statements the Government have made to flesh out their intentions on the way in which part 5 would be used.

I say to Opposition Members that I accept that there are certain circumstances in which we might find ourselves in difficulty because of the attitude of our counterparties in the EU. I hope that that will not come to pass and that we are seeing just a matter of the rhetoric of negotiation. There is, however, a respectable legal argument, which has not been ventilated before, although it is held by a number of senior lawyers I have spoken to, to say that, as we all know, the withdrawal agreement is binding on the UK as a matter of international law—that must be right—but that that is based upon the true construction of the withdrawal agreement.

The withdrawal agreement is clearly subject to the provisions that stipulate that Northern Ireland is part of the United Kingdom. There is an obligation on the parties in good faith to negotiate a free trade arrangement between the UK and the EU such as would render the need for checks on goods passing between the UK and Northern Ireland largely, if not completely, unnecessary. Provided that is done, I do not think any of us get into any difficulties. I accept that in negotiations there has been some language—I hope it is no more than the language of negotiation at this stage, a posture—that might suggest that the EU could argue for a substantial array of checks that might go beyond that which is compatible with the true construction of the agreement in so far as it must respect the role of Northern Ireland within the United Kingdom.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir Robert Neill]

Can I just finish my point, and I will happily give way to the hon. and learned Lady?

Were it to get to the stage that the level of checks being insisted on were to threaten the integrity of the UK, it would, arguably—perfectly respectably arguably—be threatening the integrity of the agreement itself upon its true construction. That, I think, would be an arguable point for saying in international law that the UK would have a case for saying it was entitled to take measures to protect the underlying purpose of the agreement.

[Joanna Cherry]

I am very grateful to the hon. Gentleman for giving way. I think that he is describing a situation in which the European Union might be in bad faith, but last week when Professor Catherine Barnard, the very well-respected professor of European law at Cambridge University, gave evidence to the Committee on the Future Relationship with the European Union, she said that there is no evidence whatever at present that the EU is negotiating in bad faith but that there is a strong argument that the existence of the Bill and clause 45 breaches the United Kingdom’s duty of good faith in article 5 of the withdrawal agreement. As Chair of the Justice Committee, the hon. Gentleman will be aware that that is a widely held view by lawyers. Does he recognise, as she said, that there is a strong argument that, merely by bringing the Bill to the Floor of the House, the United Kingdom is already in breach of its article 5 duty of good faith under the withdrawal agreement?

[Sir Robert Neill]

I recognise that that is a widely held argument.

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[Sir Robert Neill]

I am sure that it is a matter of privilege for the House, but I just come back to the point: I do not think that that engages with the issue we are concerned with here. Of course, it is perfectly within the rights of the House to bring forward any legislation it likes. I know my hon. Friend played a role in having section 38 inserted into the European Union (Withdrawal Agreement) Act 2020, but, with respect, that simply restates that which we already knew and probably picked up in the first week of the law course; that, essentially, Parliament is sovereign and of course it can legislate in the way that it wishes. It can legislate in a way that is incompatible with international law. That does not make it a desirable course to go down. I think that is the point that needs to be said. Of course, it may be possible and I do not think privilege is engaged. The point I am seeking to make is that the UK should be very wary about doing anything that breaches its international obligations. I do not think it has yet and there are reasons why we may be able to avoid that, but that is why I think we need to keep the debate a little more calm in terms of what the rights are.

[Joanna Cherry]

Is not the problem that some Government Back Benchers are falling into the distinction between domestic law and international law? It is true as a matter of domestic law that this House can pass any Bill it likes, but as a matter of international law, as stated by the Supreme Court in paragraph 55 of its judgment in Miller 1, it does not impinge on international law. If we sign treaties, we are bound in the eyes of international law. There is a distinction here between domestic law, which means that this House can do what it wants—God forbid—and international law, which means that sometimes when this House does what it wants, it could be in breach of international law.

[Sir Robert Neill]

I think that is clearly established law. It is perfectly possible to act within one’s domestic law and still breach one’s international obligations; however, I do not think that that means that the Bill itself, at this stage, is a breach of our international obligations, particularly now that it has been reinforced by comments made by Ministers on the Floor of the House, which I am sure the Government therefore regard as binding as a matter of good faith in itself, that the provisions would be used only in circumstances where the EU had behaved in such a way that it had breached its duty of good faith under the agreement.

The Government have also importantly committed not to use the provisions of part 5 to undermine the pre-existing provisions in relation to both article 16— the safeguarding arrangements of the protocol—and articles 167 onwards, on the arbitral arrangements. Given those circumstances, I reach a different conclusion from that of the hon. and learned Lady and the professor. I do not dismiss the arguments, but I make the case for why I think, as a matter of law and fact, it is possible to distinguish them.

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[Drew Hendry]

I will make some progress.

In setting out to break international law, the Government are undermining trust, respect and shared values in a very specific but very unlimited way. The Bill sneers at the words “trust”, “honour” and “obligation”. Because of this Bill, any deal, understanding, commitment, promise or even legally binding treaty is now utterly dispensable—think of that! The questions now must be: what is the next inconvenient law for this Government? What happens to society as the Government embrace lawbreaking? How will international players treat their agreements with the UK? Make no mistake: this is going rogue.

Both the former Prime Minister—the right hon. Member for Maidenhead (Mrs May) still sits in the House and is likely to vote against the Bill—and the former Northern Ireland Secretary have spoken out against this action. The Law Society of Scotland has confirmed that clauses 40 to 45

“would empower Ministers to make regulations that are contrary to the Withdrawal Agreement… and preclude challenge in the UK courts through clause 45”,

and that the Bill, if enacted,

“would breach Article 5 of the Withdrawal Agreement.”

Part 5 of the Bill has triggered international condemnation. As we have heard, presidential candidate Joe Biden warned that

“Any trade deal between the U.S. and U.K. must be contingent upon respect for the Agreement”—

the Good Friday agreement—

“and preventing the return of a hard border.”

There are already meetings in Washington amid American interest in Brexit’s implications for Northern Ireland. The Government’s amendments to part 5 of the Bill create more problems and unanswered questions. As Professor Mark Elliott, in consultation with Graeme Cowie of the House of Commons Library, points out:

“clause 45(1) provides that regulations made under clauses 42 and 43 ‘have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent’. How is this to be reconciled with the fact that clause 45 as amended now contemplates the possibility of judicial review?”

He goes on to note that Government amendments 12 to 15 would produce an “extremely odd outcome”, and that amendment 13 appears to attempt to “cancel out” the effect of amendment 14. He concludes:

“It leaves us with a Bill that clearly authorises Ministers to break international law”.

[Joanna Cherry]

Does my hon. Friend share my concern that Government amendments 12 and 13 may render incorrect the statement by the Secretary of State that the Bill is compatible with convention rights under section 19(1)(a) of the Human Rights Act 1998? Is he aware of any plans the Government have to revisit that statement? I asked the Minister about that, but he did not seem to understand the point I was making.

[Drew Hendry]

My hon. and learned Friend makes a telling point. No, of course the Government have not brought anything forward on that, because this is a Cummings-directed Prime Minister and a complicit Tory Government who have sought to justify a law-breaking, democracy-reducing, shabbily produced, lazy and dangerous Bill with a breathtaking factionalism bordering on pseudologica fantastica.

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[Sir William Cash]

I do not have time, I am afraid.

At the same time, there have been a number of UK precedents, which I have explained already. I do not have the time to go into them; I will attempt, as other Members will have to, not to go into huge detail, but I will give a few examples. In 1945, a Finance Act passed by the Labour party overrode international law. The same applied to the Indian Independence Act 1947 and the Burma Independence Act 1947. In fact, in the case of India, more than 400 treaties were broken.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

I assure the hon. and learned Lady that I am not giving way. I am very happy to do so normally, but not today.

Furthermore, a Conservative Government, in the Income and Corporation Taxes Act 1988, provided clauses that were notwithstanding anything contrary to the arrangements of the Act. It goes on. It is a substantial list.

I will go further. Those who are interested can look at my previous contributions to other debates, where I extensively describe the myriad occasions when the EU itself has broken international law and, furthermore, when EU member states have egregiously broken international law and admitted it in their own Parliaments. For example, Helmut Schmidt, in the Bundestag, could not have been clearer, going through every single treaty that Germany deliberately broke in defence of its own vital national interest, because that is itself a reason why national law can have a degree of predominance over international law.

National and constitutional law, in certain circumstances —where it affects sovereignty, as in this case in the United Kingdom—can prevail against international law. I am extremely grateful to my good friend, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who I know recognises this. It has taken a bit of time for us all to come to terms with that, because it is a bit complex, but the reality is that it is well established in international law itself. The German federal court confirmed this as recently as 2015. I quoted the court in a previous debate, so it is already on the record that it is well within the framework of international law for a country—a democratic country, I hasten to add—to actually override international law in its own vital national interest, and most specifically, as in this case, on questions of sovereignty.

I will therefore just touch on my exchange with the hon. and learned Member for Edinburgh South West (Joanna Cherry). With regard to Miller 1, the Supreme Court unanimously confirmed that, under the dualist approach, treaty obligations only become binding in the UK system to the extent that they are carried out in domestic legislation, and that whether to enact or repeal legislation, and the content of that legislation, is for Parliament alone.

This principle was approved unanimously by the Supreme Court in Miller 1.

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[Alok Sharma]

This has been debated over the long passage of the Bill in this House. As the hon. Lady and other Members will know, we introduced an amendment in Committee that provides a break-glass mechanism that ensures that the safety net will come into force only if a motion in this House is passed with a requirement for a take-note debate in the other place. I hope that will allow her to vote for the Bill on Third Reading.

[Joanna Cherry]

Will the Secretary of State give way?

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[Edward Miliband (Doncaster North) (Lab)]

I join the Business Secretary in paying tribute to the Public Bill Office for the work that it has done. I also profoundly thank my hon. Friends the Members for Manchester Central (Lucy Powell) and for Sheffield Central (Paul Blomfield) for the incredible hard work they did during the Bill’s Committee and Report stages. I am pleased to see the Business Secretary back in his place for the Third Reading of the Bill. I am afraid to have to report that the person deputising for him on Second Reading did not do a great job. Next time the Prime Minister asks to fill in for him, I suggest that he tells him to go elsewhere and he will do a very fine job, thank you.

Let me go to the heart of the debates around this Bill. We support the principle of the internal market, but there are two profound flaws at the heart of the Bill, and that is why we will vote against it tonight. On devolution, Labour Members believe deeply in our Union, but the strength of our Union lies in sharing power, not centralising it, and this Bill does not learn that lesson. It makes a choice to impose the rule that the lowest regulatory standard in one Parliament must be the standard for all without a proper voice for the devolved Administrations. I have read carefully the debate in Committee and on Report, and there has been no proper answer forthcoming from the Government about why they did not seek to legislate for the common frameworks, as they could easily have done. Nor can they explain why they are taking such broad powers over public spending in specific devolved areas of competence.

[Joanna Cherry]

The right hon. Gentleman is making a powerful speech. Does he agree that the great scheme of devolution of the illustrious former leader of the Labour party in Scotland and Scotland’s first First Minister under devolution, Donald Dewar, was that every power would be devolved unless specifically reserved? What is wrong with the Bill is that it gives the British Government the power to override devolved powers. That is the heart of the matter.

[Edward Miliband]

There is an important point here. To take the example of animal welfare or food safety, those powers remain devolved, but they are devolved in name only, because by imposing the minimum standard as the lowest standard for all legislatures, those powers are seriously undermined. I have to say to the Business Secretary that I fear that the Bill will only strengthen the hand of those who want to break up the UK.

On international law, nobody should be in any doubt about the damage already done by the Bill. I do not blame the Business Secretary, but this law-breaking Bill has been noticed around the world by not just the Irish Government, not just our EU negotiating partners, and not just Joe Biden and Nancy Pelosi, who the Government can dismiss. Even President Trump’s Northern Ireland envoy Mick Mulvaney visited the Republic of Ireland yesterday and said:

“I think anyone who looks at the situation”—

with the United Kingdom Internal Market Bill—

“understands there could be a series of events that could put the Good Friday Agreement at risk.”

When the Trump Administration start expressing concern about your adherence to international agreements and the rule of law, you know you are in trouble. That is how bad this Bill is.

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[Ian Blackford]

The fact is that, as a consequence of the attack on the powers of Scotland’s Parliament, people in Scotland are making the determination that they wish our country to become independent as soon as possible.

This Bill undermines the settled will of the people of Scotland, who voted in a referendum on the basis of our Parliament having control over spending in devolved matters. It is that fundamental—it is that serious. This is a defining moment. The UK Government are attempting to block the sovereign right of the Scottish people to decide Scotland’s future.

[Joanna Cherry]

It is great to hear my right hon. Friend remind the House that the principle of the sovereignty of Parliament is a purely English doctrine. Does he agree that, in seeking to interfere with the inherent supervisory jurisdiction of the Court of Session, the Bill also potentially breaches article 19 of the treaty of Union between Scotland and England?

[Ian Blackford]

That may well be right. My hon. and learned Friend has much experience of these matters. I would simply say that if the House passes this Bill tonight, it really does not seem to care about law and treaties.