United Kingdom Internal Market Bill

Lord Pannick Excerpts

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

[The Earl of Kinnoull (Non-Afl) [V]]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Clarke, in his very seasoned contribution for a newbie—and indeed the other 18 speakers so far in this very important debate. The European Union Committee published our report on the Internal Market Bill on 16 October, and I take this opportunity to remind noble Lords of our conclusions. Our report was short. It deals only with Part 5 of the Bill, and its interaction with the Government’s implementation of the withdrawal agreement.

The withdrawal agreement is a complex document, around a third of which is taken up by the Ireland/Northern Ireland protocol, itself a testament to the importance that all parties place on getting things right in that regard. I said before in this Chamber that there is an inherent tension at the heart of the Ireland/Northern Ireland protocol which is evident in Article 1, which describes its objectives. There are other examples, as I said in my Second Reading speech.

The only way to reconcile these tensions is for all sides to show pragmatism and willingness to compromise. Our committee reported in June on the protocol, expressing our concern that there was not enough urgency among the parties to negotiate these compromises, so protecting first the Good Friday agreement and secondly the two mighty single markets involved: those of the EU and the UK.

The report also dwelled on the multilayered dispute resolution mechanisms contained in the withdrawal agreement. The Bill before us supplants those mechanisms without their ever having been tried. As we have been reminded already several times, in September the Secretary of State made clear and repeated statements that in doing so it breaches international law. The result is that the Bill strikes at the heart of the withdrawal agreement and the protocol. It is corrosive too to the future relationship negotiations, undermining the trust that is a precondition for a successful outcome.

The Government’s argument now, as we have already heard, not least this morning on the radio, is that the Bill is a safety net: that it does not itself break international law but is a precaution in case of unreasonable behaviour by the EU. The problem with that argument, as we point out in paragraph 106 of our report, is that the Government’s decision to act pre-emptively in the absence of evidence has put the UK, and not the EU, into the wrong. Our report ended by seeking further explanation of the Government’s approach, and in particular the disclosure of any evidence that the EU had acted in bad faith. Those explanations have not been forthcoming, and I therefore hope that, even at this late stage, the Minister will indicate a change of heart and give his support to the removal of Part 5 of the Bill.

In closing, I note that amendments proposed by the noble and learned Lord, Lord Judge, are in keeping with the thrust of our report—albeit that we had asked the Government to cure the problems themselves. Convention, however, prevents me from expressing a view in the Division Lobby tonight.

[Lord Pannick (CB) [V]]

My Lords, it is a great pleasure to follow the noble Earl, whose work as chair of the EU Committee has illuminated the issues on this Bill, as on so many other issues that we have been debating over the years.

I agree with the speech made by the noble and learned Lord, Lord Judge. There are occasions, as this debate confirms, when clauses in a Bill raise issues of political, and indeed moral, principle of fundamental importance. This House has a responsibility to identify when that occurs.

I will make some observations on Clause 47, which has not featured in detail in this Committee debate. Clause 47 is innocuously titled “Further provision related to sections 44 and 45 etc.” Clause 47 is, however, a very substantial interference with the rule of law. Clause 47(1) says that any regulations which Ministers may make under Clauses 44 and 45

“have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.”

Clause 47(8) defines

“relevant international or domestic law”

to include

“any other legislation, convention or rule of international or domestic law whatsoever.”

So whatever Ministers produce by way of regulations cannot be challenged in a court of law on any grounds.