United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

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

[Lord Carlile of Berriew (CB)]

My Lords, I, too, congratulate the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech. As a former Welsh rural Member of another place, I welcome her commitment to the integrity of rural life and rural communities, and I look forward to her many further contributions to your Lordships’ House. She should not be unduly sensitive about the habits of this place. We all get used to being shouted at when we break order by standing up at the wrong moment or in the wrong gangway, but it is never really meant; it is just one of those things.

I suggest that the very fact that so many speakers are expressing their concern about Part 5 of the Bill, combined with their range of expertise and experience, should give Ministers serious pause for thought before this bent-barrelled blunderbuss is fired into the rule of law. This is legislation by offensive weapon rather than logic.

Like many others, I support the amendment to the Motion in the name of my noble and learned friend Lord Judge and moved by him with such clarity. As a former Lord Chief Justice, he speaks with authority, the contradiction of which—on this issue, at least—would amount to brazen and wilful ignorance, in my view. For those who are interested in his support for Leicester City, I remind others who are listening that, at the moment, Leicester City are winning 14:1, as it were. This is a fairly rare experience, and I suspect that it will be a much larger lead by the end of this debate, which is something that Ministers should not overlook.

I urge your Lordships and others outside to beware of thinking that this debate is a lawyers’ wordfest. This is not an issue on which any special knowledge of the law is required at all. Surely, it is a matter of constitutional instinct, international expectation and mutual respect between the United Kingdom and the rest of the world. I remind your Lordships that this Government are the first to resort to the rule of law when it suits them. If you look at the way they have made their submissions in cases concerning foreign terrorism fighters seeking to return to the United Kingdom, however unruly in law those applicants’ other countries of potential citizenship are, they are the first to say, “We rely on the rule of law. We may not like those countries, but they’re entitled to go back there, so there they shall go”. So there is a degree of hypocrisy, on the evidence, in what is happening today.

My parents escaped from the basest of persecutions. After my father, who was a deep-rooted Anglophile, got over my decision not to follow him into the medical profession—a decision about which he expressed deep disappointment, although it was probably to the benefit of my potential patients—taught me politics and history in an international context. He told me of his pride in living in a legal system that would make my qualifications respected throughout the world. I and many others in our current professional lives deal with businesspeople in many countries. One of the beacons that attracts them to making contracts with UK-based entities is their belief that, once a contract and agreement are reached, nothing will be changed in this country arbitrarily, gratuitously or for oblique motives. Some of those dealings are with the British Government.

I am ashamed that the Government are even considering empowering Ministers to derogate from the obligations of the United Kingdom under international law. I am dread-dazed that breaching international law is being contemplated in a way that could undermine the extraordinary achievements of courageous people on all sides in Northern Ireland. I am also appalled by the suggestion that we should be in breach of Article 26 of the Vienna convention, and I hope that the Government will listen to these debates, particularly today’s debate on my noble and learned friend’s amendment to the Motion, and change their mind.

United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

[Baroness Altmann (Con) [V]]

My Lords, I have added my name to these amendments, moved so excellently and explained clearly by the noble Lord, Lord Hain, and of course the noble Baroness, Lady Ritchie of Downpatrick. So I will not spend too much time going through the proposals of these particular amendments. I would just like to ask the Minister, from these Benches, why the Government are objecting to these amendments being in the Bill.

I understand that one of the arguments is that they are superfluous or not really required. However, given the clear lack of trust or concerns about some aspects of recent statements, and given that, I assume, the Conservative and Unionist Party is indeed committed to the Good Friday agreement, to no hard border on the island of Ireland and to the terms of the Northern Ireland protocol—on which this Government were so recently elected and which our Prime Minister signed up to—this amendment merely aims to ensure that measures in the Bill are fully compliant with both the Good Friday agreement and the Northern Ireland protocol, which was part of the great deal that the Government negotiated and put to the country. If Part 5 is a negotiating tactic and the Government really do not intend to use it and are aiming to get a deal, or if there is no deal, surely we still need to respect the Good Friday agreement, and our internal market needs to respect the promises made that this Northern Ireland protocol will be part of our future relationship with the EU.

I ask my noble friend to explain why the Government are unwilling to accept these amendments and to confirm that our party wishes to maintain our country’s reputation for upholding the legal agreements that we have reached with other countries in good faith.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I start by apologising to the noble Baroness, Lady Ritchie, for speaking over her earlier; I had not realised that I had already been unmuted.

The issue of the Northern Ireland protocol is about nothing more nor less than peace and stability in Northern Ireland and peace and security in the United Kingdom. I share the view given with such clarity a moment ago by the noble Baroness, Lady Altmann, that this matter should be explicitly declared in the Bill. There is nothing more important to national security and public safety than the Good Friday agreement. It celebrates the 21st birthday of its effectiveness on 2 December this year. My interest in the Good Friday agreement arose from my time as Independent Reviewer of Terrorism Legislation and the years that followed. I have followed very closely both the sometimes fractious, but surviving, political process in Northern Ireland and the recent history of residual terrorism in Northern Ireland. Although it still exists, it is much reduced and is well understood, now, at least, by the authorities.

The Good Friday agreement has secured the United Kingdom. If you visit Northern Ireland and look at its political and business institutions and public authorities, you will see that it has given them a sense of benefit which is sometimes not matched in other parts of the United Kingdom.

I pay tribute to the political parties in Northern Ireland, some of which were regarded as enemies of the people until the Good Friday agreement—and whose presence at St Andrews caused a good deal of criticism of the then Government—for the way in which they embraced constitutional activity in the political issues of Northern Ireland. I once spent some time with some ex-terrorists who had, by then, become respected politicians. I was hugely impressed by the way in which they embraced those constitutional proprieties, both in Northern Ireland and the Republic of Ireland.

There is no more important issue in the context of Brexit than ensuring that nothing is done to undermine in any way the Good Friday agreement. Everything else fades into unimportance. We must be clear that no sacrifices of the stability that the Good Friday agreement has brought will be made in the name of Brexit.

I will listen with great care to what is said by the noble Lord, Lord True, in replying to this short debate. I hope we will hear unequivocally from him not only that nothing will be allowed to happen that undermines the Good Friday agreement but that the Government are prepared to declare that in the Bill.

[Lord Cormack (Con)]

My Lords, after that speech from the noble Lord, Lord Carlile of Berriew, I am tempted to say “Amen” and sit down, but I will just add a few words. We will, of course, return to this subject when we debate the crucial Part 5 of the Bill.

All I really want to say to your Lordships is this: the Good Friday agreement is the greatest cross-party agreement since the war. It is the achievement, of course, of the Blair Government, but it is also the achievement of the John Major Government. As Tony Blair himself has admitted on a number of occasions, particularly when we had that great ceremony with the Taoiseach in Westminster Hall shortly after the Good Friday agreement, without the groundwork of John Major, Albert Reynolds and others, this could never have come about.

It would be an act of supreme folly if anything we did in this Parliament endangered the continuity of the Good Friday agreement. It is absolutely crucial that each and every one of us recognises this. In whichever party we sit, or on the Cross Benches, this agreement is our heritage and it is our duty to conserve it. It is nothing to do with whether you are on the Brexit or remainer side; that argument is over. What is not over is the continuing relevance and importance of an island of Ireland without hard borders and the principles and achievements of the Good Friday agreement being maintained.

I had the honour to serve as the chairman of the Select Committee on Northern Ireland in the other place. There were many memorable moments, such as addressing a meeting in Crossmaglen with my committee, which would never have been possible without the agreement, but my most memorable moment is this: being asked by the late Lord Bannside, or Ian Paisley as he was then, if I would be kind enough to have a private meeting with him. This was soon after the joint Executive had come into being, and of course Lord Bannside had not been altogether helpful at the time that the agreement was forged. When I congratulated him on working with Martin McGuinness, he said to me, “I have discovered that Martin McGuinness has a spiritual dimension.” I could have fallen off my chair. When I went to Ian Paisley’s farewell at Hillsborough, attended by the Taoiseach and others, a panegyric—and it was that—was delivered by Martin McGuinness, thanking his friend and mentor. We have come a long way and had some rough passages since then, but I will always remember that as an extraordinary illustration of what a political agreement can achieve. We must not jeopardise that.

I am glad that this was introduced by the noble Lord, Lord Hain—he was himself a notable contributor to all these things and has been since. We must not put this at risk.

United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, on this anniversary of Kristallnacht, when some of us mourn the cruelty of the death of grandparents we never knew, I join in expressing my sadness at the death of the late Lord Sacks, a truly inspiring member of your Lordships’ House. He bore his greatness well.

It is a pleasure to follow the attractive speech of the noble Lord, Lord Moylan, disagree with him though I do. I simply suggest to him that I suspect that hungry lawyers and busy grocers share more instincts than he imagines.

I am persuaded by the clarity of my noble and learned friend Lord Judge in his presentation of the proposition that we should expunge this part from the Bill. Indeed, it is my view that we should stand fast, and make it absolutely clear to the Government that we will do everything in our power, however long it may take, to achieve that end.

I listened with great interest to the eloquent and ingenious arguments, presented in particular by the noble Lord, Lord Lilley. In my view, the noble Lord fails in those arguments for at least three reasons. First, these proposals are a deliberate and unnecessary flouting of international legal obligations which the European Court of Justice would never support. If there was any implication in what he said that it would, the noble Lord is simply wrong. Secondly, he offers no justification for the breathtaking and extraordinary use of secondary legislation on the fiat of a Minister to break treaty obligations, especially as such secondary legislation is unamendable. Thirdly, and this is a point made by my noble friend Lord Pannick, there is the issue of the arbitration provisions. To avoid those provisions is simply an abuse of process, and nothing less.

Do we learn anything from what is happening elsewhere at the moment, in relation to these proposals? Why has President-elect Biden’s election engendered such support across the democratic world? What unfolded in recent days, as I saw it in many hours of the day and night while watching the extraordinary output of CNN, promises the world the speedy return by the United States to the honouring of treaties, multilateralism, and to trust between nations. Trust between nations, however, requires one to trust the Governments of each of those nations.

I remind the House of President-elect Biden’s long-standing commitment to the Good Friday agreement, and that his commitment, and his understanding of it, will engender intensive scrutiny by the United States of the United Kingdom’s adherence to all its obligations, including the Good Friday agreement. As my noble and right reverend friend Lord Eames said in his powerful speech, the Belfast Protocol is a living instrument, and a very sensitive organism, which we should not damage in the course of negotiation tactics. The prospect of a United States-United Kingdom trade treaty, so important to this country, will not turn on the feeding and the properties of chickens.

Such issues are always negotiable. It will depend on the perceived adherence of the United Kingdom to important treaty obligations and on what the United States thinks of the integrity of the United Kingdom. Why would one make a treaty with an untrusted partner? There are plenty of other potential partners around.

My conclusion is that this part of the Bill has no place in our legal tradition. Indeed, it damages our economic interest and reputation in a key area of commerce—the extraordinarily successful legal services provided by British lawyers and the British legal system all around the world. Worst of all, as my noble and right reverend friend Lord Eames made clear, it threatens stability in Northern Ireland, which was hard won, to the credit of all sides there.

There was no manifesto commitment to break international law in this way. Rather like President Trump’s allegations of electoral irregularities, this part of the Bill is completely unsupported by anything remotely ascribable as cogent evidence. I will vote against all these clauses standing part of the Bill. I hope others will join with me in any future debates in standing firm on these extremely important issues of principle.

[Lord Shinkwin (Con)]

My Lords, may I begin by joining with the noble Lord, Lord Carlile of Berriew, and other noble Lords in mourning the loss of our noble friend Lord Sacks?

I shall speak to Clauses 44 and 45. I may be being thick but, for me—and I think for millions of people who voted for the UK to leave the EU—these clauses go to the heart of why we felt there was no alternative. I did not vote to leave the EU almost four and a half years ago because I hate Europe or because I am xenophobic. I did so with a heavy heart because I believed that, unless and until we had left and the transition period had passed, British democracy would be inexorably undermined by a lack of transparency, accountability and control. I did so because I believe in a stronger, not an ever weaker, Parliament, in government that is more accountable, not less, and in a people that thus have more power, not less.

The idea that we should surrender in the final round makes no sense at all. For that is what we would be doing without this insurance policy. Whether we like it or not, it is an inescapable fact that, without it, the integrity and viability of the United Kingdom of Great Britain and Northern Ireland could be at risk. Of course, who in your Lordships’ House does not hope that we achieve a favourable outcome through the Joint Committee process? However, this is not guaranteed by any means.

It is worth reflecting on the practical consequences of an unfavourable outcome. My noble friend Lord Lilley posed the key question: what would it mean for people’s lives and livelihoods in Northern Ireland? As the noble Lord, Lord Dodds of Duncairn, made clear, it would have a terrible impact.

Essentially, damaging defaults would come into effect, which would achieve the very opposite of what noble Lords, the Prime Minister, the Taoiseach, the First Minister and Deputy First Minister of Northern Ireland, and the President-elect of the United States all reject—the effective creation of a hard border in the Irish Sea between Great Britain and Northern Ireland. If I may, I would like to take this opportunity to say how excited I am personally by the election of the first woman and person of colour as Vice-President of the United States. It must mark one of the most exciting milestones in my lifetime and is a testimony to the overwhelming, inevitable logic of equality.

If Michel Barnier or President-elect Biden want to protect Northern Ireland’s integrity and equality through the Good Friday agreement, surely they must accept that a hard border would not achieve that objective. It is therefore essential that we safeguard the gains that have been made and ensure there is a safety net in place to protect the people of Northern Ireland—their jobs, their livelihoods and their financial security—should the EU fail to agree reasonable solutions in the joint committee. As my noble friend Lady Noakes said, these clauses do that pragmatically. I agree with the noble Baroness, Lady Hoey. If parliamentary sovereignty is to mean anything, these clauses must stand part of this Bill.

United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 18th November 2020 Lords Chamber

[Baroness Meacher (CB) [V]]

My Lords, I speak in strong support of the amendments tabled by the noble Baroness, Lady Andrews, to which I have added my name.

As many noble Lords made clear at Second Reading and in Committee, this Bill has plumbed new depths in undermining our democracy through the unprecedented and unacceptable use of Henry VIII powers to sidestep the scrutiny of Parliament and give Ministers extraordinary powers. It is no accident that it was Henry VIII clauses in this Bill, six of which are the subject of this debate, that prompted the chairs of the Delegated Powers and Regulatory Reform Committee, the Constitution Committee and the Secondary Legislation Scrutiny Committee to write to the Minister for the Cabinet Office and the Leader of the House of Commons expressing their deep concern about these developments. This Bill using Henry VIII powers unreasonably is of course not a one-off. As a relatively new member of the Delegated Powers Committee—I should declare that interest—I have been very conscious of its growing concerns about this Government’s increasing use of delegated legislation and ever wider Henry VIII powers. It is worth putting on the record a point made by the Leader of the House of Commons in response to the letter from the three committee chairs. Mr Rees-Mogg says that

“there will be times when the Government will still need to rely heavily on delegated powers, particularly if legislation is needed urgently, but I am clear that at all times the Government must fully justify the appropriateness of these powers to both Houses and to your Committee.”

The problem is that in the view of the Delegated Powers Committee, and certainly in my view, the Government simply have not justified the wholesale delegation of powers in the Bill.

We are very pleased that the Government have gone some way towards rectifying the problem through their many amendments. In particular, we welcome the Government’s acceptance that the Henry VIII power in Clause 3(8) should be removed. The arguments for removing that power, as set out in the Delegated Powers Committee report, are overwhelming. However, as the noble Baroness, Lady Andrews, has cogently spelled out, exactly the same arguments apply to the Henry VIII power in Clause 6. I fully support the position that if the Government are unwilling to withdraw the Clause 6 Henry VIII power then the opinion of the House on this issue just has to be tested. I hope a vote will not actually be necessary—would it not be wonderful if the Government accepted this amendment along with the one on Clause 3?—but if there is one then I will be supporting the noble Baroness.

Our amendments to Clauses 8, 17 and 20 are less broad and the issues are therefore a bit less concerning. However, I have considerable reservations about Clause 10(2), which gives Ministers the power to rewrite Schedule 1 in part or indeed in its entirety. Surely that cannot be justified. Our Amendment 17 would delete that power. I hope the Minister will give the House some assurance that he will take this issue back for reconsideration.

I welcome the Government’s new commitment to consulting the devolved Administrations before making regulations under a number of clauses of the Bill. Whether that goes far enough will be debated at a later stage of Report and I therefore will not comment further on it here. I also welcome the Government’s commitment to review the use of Parts 1 and 2 as set out in the government amendments.

[Lord Carlile of Berriew (CB) [V]]

My Lords, it is a pleasure to follow the speeches by the noble Baronesses, Lady Andrews and Lady Meacher, who have spoken with such cogency. I agree with them.

My name appears on Amendments 2, 7, 12, 17, 31 and 42 for two reasons. The first is that I was there at the beginning of devolution in Wales and have watched it develop in ways that were described earlier this afternoon by other noble Lords. It has been successful; it has brought the people of Wales much closer to government and resulted in faster decision-making than we ever had in the old days when the nearest we had to devolution, when I was a Member of another place, was the Welsh Grand Committee.

The second reason why I speak in favour of these amendments is a more general one. I have watched with surprise, and sometimes despair, the galloping tendency of government—and it has been successive Governments—to take more executive power through secondary legislation. Henry VIII must be very surprised, if he is aware of it at all, that his powers are being asked for so frequently and when they are not necessary.

I want to focus on Amendment 7 for I, like the noble Baronesses who have just spoken, welcome the addition of the name of the noble Lord, Lord Callanan, to Amendment 2. That is truly welcome. When I first saw it, I thought it showed a thorough recognition of the issues at stake because it is a significant concession. All that we are asking on this side of the debate is consistency with regard to the non-discrimination principle. That principle is of as fundamental importance as the mutual recognition principle for markets to which the noble Lord, Lord Callanan, has signed up in Amendment 2. They are plainly legislative siblings—indeed, they are almost identical twins—since they have a great deal of political and legislative DNA in common. Certainly they are equally important, and they are of equal moment in the devolved parts of the UK. I therefore feel bound to say that I am bemused by the lack of logic displayed by the Government’s failure to agree to Amendment 7 having agreed to Amendment 2.

I was talking earlier about the way in which devolution has worked. I can put that point very simply. These days in Wales, about which I know more than Scotland, legislative changes are brought about in real time as decisions become necessary. They are not always right—legislative changes are never always right—but at least there is an understanding by the public, those involved in politics in Wales and public servants in Wales that it is possible to make change. By that process, one has given a new self-respect regarding the way in which Wales is governed to elected Members, public officials and those who elect the elected Members.

What is still in Clause 6, the requirement for consultation without consent, is, unfortunately, a fig-leaf. It does not provide any reality to the role of Wales—on which I speak particularly—in this process because it can be overridden. Yes, reasons have to be given, but it is not very difficult to construct reasons. It relegates the devolved regions to a negligible role on matters directly affecting their interests. If it were necessary to do that, if that relegation could truly be demonstrated intellectually and logically as necessary, then I would be willing to support it, but I see no such explanation. Allowing executive powers in this way goes far beyond what is necessary.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow the noble Lord, Lord Carlile of Berriew. I congratulate the noble Baroness, Lady Andrews, and other noble Lords on tabling these amendments. I thank my noble friend Lord Callanan for supporting Amendment 2 and, in particular, for adopting government Amendment 35 as his own. I thank the Law Society of Scotland for its help, both in briefing me and in helping me to draft an earlier form of this amendment. I want to single out for praise Michael Clancy, whom I have known for many years. He works tirelessly on behalf of the Law Society of Scotland, and Scotland more broadly, to ensure that both Houses of Parliament and other sectors of Scotland are in tune with the constitutional implications of their thinking. I also thank my noble friend Lord Callanan for tabling government Amendments 29 and 47. They are inclusive in reaching out to consult the devolved Administrations.

Amendment 2 lays to rest the dangers of many of the original provisions in this Bill—particularly in relation to secondary legislation and Henry VIII powers— that did not find favour with your Lordships’ House. I remind the House of my interest as a non-practising member of the Faculty of Advocates. I shall pursue a similar line of thought to that expressed by the noble Baroness, Lady Andrews, in moving Amendment 2. I welcome government Amendments 29, 35 and 47, but perhaps we need to persuade the Government to move similarly further in other parts of the Bill. I shall seek to do so when the time comes. I congratulate my noble friends Lord Callanan and Lord True on their letter and thank them for listening to our concerns.