United Kingdom Internal Market Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB) [V]]

My Lords, it is always good to follow the noble Lord, Lord Hendy. I start by welcoming and congratulating the two excellent maiden speakers. I doubt they were as nervous as I am making my maiden remote Zoom speech.

I shall vote for the amendment to the Motion moved by the noble and learned Lord, Lord Judge. Like him and so many others who have spoken in this remarkable debate, I deplore Clauses 42 to 47 in Part 5, and I express my deep regret that our great country, champion for centuries of the rule of law, domestically and internationally, has reached the point of prospectively repudiating binding treaty obligations entered into less than a year ago. The damage to our international reputation and standing needs no additional emphasis from me. Similarly, I note the damage to our prospects of finding—as we now need to—trusting new treaty partners and, as mentioned by the noble Baroness, Lady Kennedy of The Shaws, to London’s standing as the economically very valuable centre of international legal practice and dispute resolution by both litigation and arbitration.

I now turn to a rather different aspect of Part 5. It is my contention that these clauses are not merely unlawful and, therefore, intrinsically objectionable in principle; they are quite unnecessary—unless, quite outrageously, they are in the Bill merely to shift the dial to try to bully the EU into a more helpful stance, as the noble Lord, Lord Barwell, suggested. Assuming that they are in the Bill for “good faith” reasons, I strongly agree with the noble and gallant Lord, Lord Stirrup, that, were it ever to be necessary to legislate to breach international law, that should follow—not, as here, precede—that need.

However, I would go further and say it never would be necessary. I will explain why. Naturally, I recognise the imperative under the protocol that it applies to honour and not imperil the Belfast agreement and that it does not destroy the essential unity and integrity of the United Kingdom internal market. This requires reaching a sensible, workable agreement by negotiation or, if necessary, the decision of the joint committee under Article 16 on, for example, what are reasonably to be regarded as “goods at risk”.

However—and this is really the crunch point—if the Government say they truly fear the EU playing hardball on the wider negotiations, threatening to act quite unreasonably or acting in bad faith in its interpretation and application of the protocol, then, instead of our pre-emptively breaking, as these clauses do, the agreement ourselves, we would be able to treat them as being in breach. This would entitle us not merely to invoke, as we would, the dispute resolution mechanism provided for but, in the meantime, temporarily and pending the eventual outcome of any arbitration, to take all necessary and proportionate measures to protect our fundamental interests, which obviously include the Belfast agreement.

That is it: both parties owe the “good faith” obligations and that is plain under Article 5 of the Vienna convention. Neither side is entitled to act unreasonably, such as to frustrate the essential object of the agreement. With those thoughts in mind, it seems not merely outrageous in principle but, in fact, ultimately absurd to include provisions that could never be properly required given that there is, as the Government fear, bad faith on the EU side.