United Kingdom Internal Market Bill

Martin Docherty-Hughes Excerpts

Monday 21st September 2020 Commons Chamber

[Sir Robert Neill]

That does not surprise me; it is consistent with my own experience. I say gently to Opposition Members that the issues at stake are too serious to be part of what might otherwise be an understandable bit of partisan knockabout. That is not what we are talking about.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

The hon. Gentleman mentions the seriousness of the issue; it is that serious that the British Government’s senior Scottish Law Officer, the Advocate General, has resigned. Does the hon. Gentleman really believe that Scottish constituency Members, based on that premise, should walk through the Lobby and vote with the Government?

[Sir Robert Neill]

It is presumptuous, it seems to me, of the hon. Gentleman to try to suggest how any of my hon. and right hon. Friends might choose to vote, just as it would be presumptuous of me to take a view as to why any Member does or does not remain a member of the Government. I have a very high respect for the noble Lord, Lord Keen of Elie. I just observe that his resignation came before the terms of the Government’s amendment were announced and it was tabled, and before the declaration which the Minister has read out from the Dispatch Box was in the public domain; I perhaps regret the timing of that, but I respect Lord Keen’s position, and that is unchanged, and I do not think relevant to the case that we must make here.

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[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.

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We have to talk about our international reputation. We have a permanent seat on the Security Council. We are full members of many international bodies. We punch above our weight. What the UK is known for, and what people whom I want to stay in the United Kingdom want to see, is our respecting the rule of law. We need to be on the highest moral ground. There cannot be ambiguity. Protecting our Union is the most important thing to me, but we cannot do so in a way that alienates people and damages our reputation.

[Martin Docherty-Hughes]

On the reputation of the United Kingdom and the identity of Irishness and Britishness in Northern Ireland, why was it up to Emma DeSouza to drag the right hon. Member’s Government through the courts fully to exercise their rights to identify as Irish and their rights as a European Union citizen in the High Court in Northern Ireland?

[Karen Bradley]

The hon. Gentleman would have to take up the reasons why the case was taken with the lady in question, but the DeSouza case is a clear example of how the Northern Ireland Act 1998 did not address these matters. I have been clear, in many interventions since I left my post last summer and while I was in post, that respecting the right of everybody who lives in Northern Ireland to identify in the way that they are comfortable with is incredibly important and we must respect it. So I say to the Minister: part 5 should not be in this Bill. The Government should not ask MPs to vote for an illegal law as a negotiating tactic. This part should be in a separate Bill, if these clauses are needed, and it should be debated separately; it should not be polluting what is otherwise a good and necessary piece of law. All possible steps to avoid needing these clauses should be taken.

I say to the Minister that I am undecided as to which way I will vote this evening, because I respect the fact that Government have moved and compromised, and I understand that that is a difficult thing for Governments to do. But I ask the Minister to give me clarity: if I walk through the Lobby today, am I breaking the law? If I walk through the Lobby today, will the law be broken as a result of my doing so? Will I have the answer for me at 3 am, not for my constituents or others, that I have done the right thing and that this will lead to a better result for the UK?

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[Rehman Chishti]

It is a real pleasure and a privilege to follow the right hon. Member for Leeds Central (Hilary Benn), for whom I have huge admiration and respect. I sat in this Chamber on 2 December 2015 and listened to his speech on countering Daesh in Iraq and Syria. He took a principled position then, as the shadow Foreign Secretary, and it was one of the best speeches this House has heard.

I also agree with the right hon. Gentleman with regard to the comments of the Secretary of State for Northern Ireland, who said on 8 September that what was being proposed in the Bill

“does break international law in a very specific and limited way.”—[Official Report, 8 September 2020; Vol. 679, c. 509.]

That is completely and utterly unacceptable. I am also a lawyer, and I will refer to that comment a little further in my speech.

I accept that the majority of the Bill is necessary for an effective United Kingdom single market when we are no longer subject to EU rules. I campaigned for Brexit, my constituency voted 65% to deliver Brexit, and my voting record is the same as that of the Prime Minister and many of those who sit in Cabinet with regard to delivering Brexit. Brexit meant many things to many people, but for me it was about sovereignty. The British public elect their Members of Parliament, who have the final say on the laws that govern our country and our citizens. But Brexit must be delivered in the right way, respecting the United Kingdom’s commitment to the rule of law, and as a country that stands by the word it gives. That cannot be compromised on.

I have real concerns about clauses 42, 43 and 45 of this Bill. Brexit was about sovereignty—taking back control of our laws, borders and money—but under those provisions, we would defer that authority to Ministers, who could then, unilaterally, withdraw from an international agreement passed by this House. How can that be sovereignty? It cannot. I agreed with the former Attorney General, my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), when he gave his speech to this House on 14 September, about those three specific provisions. He is a great man, and I had the privilege to be his Parliamentary Private Secretary when he was the Attorney General.

For me, there can be no compromise about one’s core beliefs, and my core belief is a respect for the rule of law. If you give your word, you have to honour it. What the Secretary of State for Northern Ireland said on 8 September—we sat in our parliamentary offices, and we listened to him—is that

“this does break international law in a very specific and limited way.”—[Official Report, 8 September 2020; Vol. 679, c. 509.]

What are we saying to our citizens—that they can break other laws in a specific and limited way? Our country is going through difficult, challenging times and we are asking people to adhere to guidance, yet we have a Minister of the Crown saying that from the Dispatch Box.

There is something called honour, and for me I could not serve as the Prime Minister’s special envoy for freedom of religion or belief. I conveyed that message to the Government last Sunday, and I was told that the Government would not be accepting the amendment put forward by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). On that basis, on Monday I took the decision to resign my position. We talk about being patriotic, and our national anthem says:

“Long may she reign. May she defend our laws”—

and “defend our laws” is what this is about.

I am grateful to have been the Prime Minister’s special envoy. It was a real privilege and honour to serve as the United Kingdom’s special envoy for freedom of religion or belief. We took forward 17 different recommendations of the 22 in the Truro report, but I also helped, along with the United States and the ambassador from the Netherlands, to set up the international alliance to promote freedom of religion or belief around the world. We used to say to countries, “Respect article 18 of the universal declaration of human rights”. People can have whatever faith they want or no faith, but others must respect that.

Hon. Members would expect the Prime Minister’s special envoy for the United Kingdom to go along to the table and say, “I think we should do this at the Security Council or we should that at the United Nations General Assembly. We should do this at the Organisation for Security and Co-operation in Europe or we should do that at Human Rights Council.” But after what the Secretary of State for Northern Ireland said at the Dispatch Box on 8 September, how can one go and lecture others when we are in this situation?

The question people ask me is: why, then, are you supporting Government amendment 66? I am supporting amendment 66 for this reason. If we look at the Order Paper on Monday 14 September and Tuesday 15 September, we see that amendment 4 put forward by my hon. Friend the Member for Bromley and Chislehurst had only 13 signatories. That amendment is for parliamentary sovereignty. Parliament should decide: this Parliament enacted its support of the withdrawal agreement, and if it now wants to come out of it, this Parliament should say so, not defer that to Ministers. However, only 13 Members of Parliament had signed it. I am grateful to my right hon. Friend the Member for Ashford (Damian Green) and my hon. Friend the Member for Bromley and Chislehurst, and I am also grateful to the likes of my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer), who came in in 2019, who signed the amendment.

The amendment asks for parliamentary sovereignty, but on Monday the Bill passed by 77 votes in this House, so how do I know I can get 40 votes to overturn clauses 42, 43 and 45, which I could never accept. No hon. Member would accept clauses 42, 43 and 45, so when we are in that position, do we accept amendment 66, rather than the amendment put forward by my hon. Friend the Member for Bromley and Chislehurst, being pragmatic and being reasonable? I say this as someone who for three years, from 2004 to 2007, worked with the former Prime Minister of Pakistan who lost her life fighting for democracy, going to discussions in the Foreign Office with the Foreign Secretaries Jack Straw and David Miliband and looking at the transition to democracy. There always has to be give and take, being pragmatic and being realistic. On that basis, to avoid having to put clauses 42, 43 and 45 in the Bill, I support the proposals in Government amendment 66 for parliamentary oversight.

I want to finish with a quote, Sir Graham. I know time is of the essence. Parliamentary sovereignty and parliamentary scrutiny are of the utmost importance to each and every one of us. We are all among equals. We all have a voice. We take into account the views of our constituents, and we come here and we represent them. Over summer, I read a brilliant quote from 2010 by a former Member of Parliament, before I came to this House. I will read the quote. Some will recognise the person. He is a man of great integrity and he did the right thing. This is what he said about taking Parliament seriously:

“a word to the coming generation of politicians. I have one simple message: take Parliament seriously. If we, the elected, do not, why should anybody else? By all means…support the programme on which one’s party was elected, but we are not automatons. We are not sent here merely to be cheerleaders, or to get stiff necks looking up at the fount of power. We are here to exercise our judgment—to hold Ministers to account for the powers they hold. And that means proper scrutiny. It means insisting that Ministers engage seriously with Parliament, and that they are open to dialogue.”—[Official Report, 25 March 2010; Vol. 508, c. 486.]

On that basis, I am grateful to the Prime Minister for listening, engaging and ensuring that we have amendment 66, should these matters come before the House and if the United Kingdom ever deviated from its commitment. Initially, the provisions were put forward under statutory instruments, under which the Government could have put forward a 90-minute affirmative motion, with the Minister standing at the Dispatch Box for an hour. Please, as I tried to ask him earlier, will the Minister clarify that when and if this comes back to the House, there will be a full debate, with as many Members of Parliament who need to speak being able to?

One of the great things I did was to represent our country at the canonisation of St John Henry Newman, a great British saint with global impact. I will end by quoting his “Lead, Kindly Light”:

“…I do not ask to see

The distant scene; one step enough for me.”

When and if the Government look to bring these measures forward, please do it so that there are appropriate checks and balances at every level by this House.

[Martin Docherty-Hughes]

It is good to follow the hon. Member for Gillingham and Rainham (Rehman Chishti). I congratulate him on the moral choice of resigning from the Government, although I remind him that when it comes the law of the country, there is the law of England and Wales, Scotland and Northern Ireland.

As a Scottish nationalist, I have often tried to stick to our maxim of leaving Ireland to the Irish, but in these constitutionally fraught times I feel it is necessary to remind the British Conservative and Unionist party of the histories and stories across these islands that give us an understanding of where we find ourselves today. We can be in no doubt that this Government will seek to portray this perfidious power grab as actually strengthening the devolution settlement, which so many of us have fought so hard to secure, but we know very well from the history of Northern Ireland that rewriting devolution by decree is simply unsustainable.

Let us move beyond the bluff and bluster of this Government’s Front Bench and the obsequious chatter of their pliant Back Benchers, and remind ourselves very clearly that a Union requires Unionists at both ends. Usually, when I look over to my Scottish Conservative and Unionist opposites—I do not see any here tonight—I see fellow Scots who are equally passionate in their convictions for our nation of Scotland as any on these Benches. They are Unionists who are looking desperately to the south to see their convictions mirrored by English colleagues, but I am afraid that the only colleague they found tonight was the right hon. Member for Maidenhead (Mrs May).