United Kingdom Internal Market Bill

Robert Neill Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons
Monday 14th September 2020 Commons Chamber

[The Prime Minister]

My hon. Friend is entirely right. Absurd and self-defeating as that action would be, even as we debate this matter, the EU has not taken that particular revolver off the table. I hope that it will do so and that we can reach a Canada-style free trade agreement as well.

It is such an extraordinary threat, and it seems so incredible that the EU could do this, that we are not taking powers in this Bill to neutralise that threat, but we obviously reserve the right to do so if these threats persist, because I am afraid that they reveal the spirit in which some of our friends are currently minded to conduct these negotiations. It goes to what m’learned friends would call the intention of some of those involved in the talks. I think the mens rea—

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Will the Prime Minister give way?

[The Prime Minister]

I give way to my right hon. and learned Friend.

[Sir Robert Neill]

I never object to another promotion.

I have listened carefully to what the Prime Minister says, but does he accept that were our interlocutors in the EU to behave in such an egregious fashion, which would clearly be objectionable and unacceptable to us, there is already provision under the withdrawal agreement for an arbitrary arrangement to be put in place? Were we to take reserve powers, does he accept that those reserve powers should be brought into force only as a final backstop if we have, in good faith, tried to act under the withdrawal agreement and are then frustrated? The timing under which they come into force is very important for our reputation as upholders of the rule of law.

[The Prime Minister]

My hon. Friend is absolutely right in what he says. He knows a great deal about this matter, and it is of great importance that we go through the legal procedures, as we will. As things stand, however, in addition to the potential blockade on agricultural goods, there are other avenues that the EU could explore if it is determined to interpret the protocol in absurd ways, and if it fails to negotiate in good faith. We must now take a package of protective powers in the Bill, and subsequently.

For example, there is the question of tariffs in the Irish sea. When we signed the protocol, we accepted that goods “at risk” of going from Great Britain into the EU via Northern Ireland should pay the EU tariff as they crossed the Irish sea—we accepted that—but that any goods staying within Northern Ireland would not do so. The protocol created a joint committee to identify, with the EU, which goods were at risk of going into Ireland. That sensible process was one achievement of our agreement, and our view is that that forum remains the best way of solving that question.

I am afraid that some in the EU are now relying on legal defaults to argue that every good is “at risk”, and therefore liable for tariffs. That would mean tariffs that could get as high as 90% by value on Scottish beef going to Northern Ireland, and moving not from Stranraer to Dublin but from Stranraer to Belfast within our United Kingdom. There would be tariffs of potentially more than 61% on Welsh lamb heading from Anglesey to Antrim, and of potentially more than 100% on clotted cream moving from Torridge—to pick a Devonshire town at random—to Larne. That is unreasonable and plainly against the spirit of that protocol.

The EU is threatening to carve tariff borders across our own country, to divide our land, to change the basic facts about the economic geography of the United Kingdom and, egregiously, to ride roughshod over its own commitment under article 4 of the protocol, whereby

“Northern Ireland is part of the customs territory of the United Kingdom.”

We cannot have a situation where the boundaries of our country could be dictated by a foreign power or international organisation. No British Prime Minister, no Government, and no Parliament could ever accept such an imposition.

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[Edward Miliband]

The right hon. Gentleman did not like the protocol at all. He would rather have not had the protocol. He and I just have a disagreement on this issue. I believe it was necessary to make special arrangements for Northern Ireland, or for the UK to be in the EU customs union to avoid a hard border in Ireland. That is why the Prime Minister came along and said the protocol was the right thing to do.

Let me deal with the third excuse we heard. This is the “It was all a bit of a rush” excuse. As the Prime Minister said in his article, times were “torrid” and there were “serious misunderstandings”. He tries to pretend that this is some new issue, but they have been warned for months about the way the protocol would work. The Chancellor of the Duchy of Lancaster, who is sitting in his place, was warned at the Select Committee in March and was asked about these issues. The Business Secretary was written to by the House of Lords Committee in April.

Let us just get this straight for a minute, because I think it is important to take a step back. The Prime Minister is coming to the House to tell us today that his flagship achievement—the deal he told us was a triumph, the deal he said was oven-ready, the deal on which he fought and won the general election—is now contradictory and ambiguous. What incompetence. What failure of governance. How dare he try to blame everyone else? I say to the Prime Minister that this time he cannot blame the right hon. Member for Maidenhead (Mrs May), he cannot blame John Major, he cannot blame the judges, he cannot blame the civil servants, he cannot sack the Cabinet Secretary again. There is only one person responsible for it and that is him. This is his deal. It is his mess. It is his failure. For the first time in his life, it is time to take responsibility. It is time to ’fess up: either he was not straight with the country about the deal in the first place, or he did not understand it.

A competent Government would never have entered into a binding agreement with provisions they could not live with. If such a Government somehow missed the point but woke up later, they would do what any competent business would do after it realised it could not live with the terms of a contract: they would negotiate a way out in good faith. That is why this is all so unnecessary. There is a mechanism designed for exactly this purpose in the agreement: the Joint Committee on the Northern Ireland protocol. What did the Chancellor of the Duchy of Lancaster say on 11 March at the Committee on the Future Relationship with the European Union? He will recall that he was asked about state aid. He said:

“the effective working of the protocol is a matter for the Joint Committee to resolve.”

The remaining issues to which the Bill speaks are not insignificant, but nor are they insurmountable, and that is the right way to pursue them, not an attempt at illegality.

Let me come back to the excuses. Fourthly, on Sunday, there was the Justice Secretary’s “the fire alarm” defence: “We don’t want to have to do this, but we might have to.” I want to be clear with the House about something very, very important about a decision to pass the Bill. I have great respect for the hon. Member for Bromley and Chislehurst (Sir Robert Neill), but I want to make this point. The very act of passing the Bill is itself a breach of international law. It would be wrong for hon. and right hon. Members on either side of the House to be under any illusions about that as they decide which Lobby to go into tonight. If we pass the Bill, even if there is a nod and a wink from the Prime Minister to the hon. Member for Bromley and Chislehurst, we equip the Government with the power to break the law. That in itself is a breach of the Northern Ireland protocol and therefore a breach of international law.

[Sir Robert Neill]

I have listened carefully to the right hon. Member’s formulation and I understand much of what he says. However, an Act passed by this House only becomes law when it comes into force. He will be right, I submit, to say that as soon as any of these provisions came into force we would potentially breach international law. That is not quite the same thing, as I think he would fairly concede.

[Edward Miliband]

That is not a risk we are going to take.

So the fire alarm defence simply does not work. The last defence was floated as a trial balloon, one might say, by the Northern Ireland Secretary last Tuesday, I believe. He said it was a breach of the law in a “specific and limited way.” That really is a new way of thinking about legal questions. It now turns out that breaking the law specifically and in a limited way is a reasonable defence for this Government. We have all heard of self-defence, the alibi defence, the innocence defence; now we have the Johnson defence: you can break the law, but in a specific and limited way.

Think about the grave context we face. The Home Secretary is in today’s newspapers warning everyone, “You must abide by the law.” On this, she is absolutely right. She says,

“I know that, as part of our national effort, the law-abiding majority will stick to these new rules. But there will be a small minority who do not”.

You couldn’t make it up. What she does not say in the article, but what we now know about this Government, is that the Johnson defence means something very specific: there is one rule for the British public and another rule for this Government. Pioneered by Cummings, implemented by Johnson—that is the Johnson rule.

This is the wrong thing to do. It is not necessary and it is deeply damaging to this country. Let us think about the impact on our country in the negotiations. The Government’s hope is that it will make a deal more likely, but that relies on the notion that reneging on a deal we made less than a year ago with the party we are negotiating with now will make that party more likely to trust us, not less. Think about our everyday lives: suppose we made an agreement with someone a year ago and we were seeking to have another negotiation with them; if we had unilaterally reneged on the first deal we made, would it make them more likely to trust us, or less likely? Obviously, it would make them less likely to trust us.

We know the risks. I very much hope the Prime Minister gets a deal. As a country, we absolutely need a deal. We know the risks of no deal if this strategy goes wrong. The Prime Minister said last week that no deal is somehow “a good outcome”. He is wrong. I hear all the time from businesses—I am sure the Business Secretary, who is in his place, does too—that are deeply worried about the danger of no deal. I know what the Prime Minister thinks about the views of business, thanks to his four-letter rant, but this is what businesses have to say. Nissan says there could be no guarantee about its Sunderland plant if there were tariffs on UK to EU trade. Ford says that no deal would be disastrous. The NFU says it would be catastrophic for British farming—indeed, the Chancellor of the Duchy of Lancaster, when he was Secretary of State for Environment, Food and Rural Affairs, said the same thing. We are in the biggest economic crisis for 300 years, the biggest public health crisis for 100 years. No deal is not some game; it is about the livelihoods of millions of people across our country.

What about the prized trade deal with the United States? I know the Prime Minister thinks he has a friend in President Trump, but even he must recognise the necessity of being able to deal with both sides. The Speaker of the House of Representatives, Nancy Pelosi, said:

“The UK must respect the Northern Ireland Protocol as signed with the EU… If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.”

This is the signal that we—the country known for the rule of law, the country that abides by the law, the country that founded international law—are sending to our friends and allies around the world. That is why we cannot support the Bill.

The Government must go back, remove the provisions breaking international law and ensure that the Bill works in a way that respects the devolution settlements. That is what a responsible, competent and law-abiding Government would do. This is a pivotal moment to determine the future of our country—who we are and how we operate. In shaping that future, we have to stand up for the traditions that matter: our commitment to the rule of law. The Bill speaks of a Government and a Prime Minister who are casual, not to say cavalier and reckless, about the gravity of the issues confronting them. The Prime Minister should be focusing on securing a Brexit deal, not breaking international law and risking no deal. He is cavalier on international law and cavalier on our traditions. This is not the serious leadership we need, and it is why we will oppose the Bill tonight.

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[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I will endeavour to prove that the best advocacy can be the most concise.

There is a great deal in the Bill that I support and that is necessary, sensible and desirable. However, there is one important part of the Bill that creates very real difficulty for me and many others, and I want to go straight to the rub of that point. Part 5 of the Bill, as it stands, gives me real concern as to its leading the United Kingdom into a breach of our international obligations and the law that stems from them. That is, as many others have observed, not something that any country should do, save in the most extreme and pressing circumstances.

The difficulty arises in relation particularly to clauses 42, 43 and 45. They are different from the rest of the Bill, because they give very wide-ranging powers indeed to Ministers to disapply elements of the withdrawal agreement and the protocol, which have the force of international law, by regulation. These are measures of a very sweeping kind, involving any kind of legislation and any part of the agreement, not just those related to the protocol, and appearing to oust the jurisdiction of the courts in any respect. I question whether their being so wide can be justified.

My other concern is that the way the clauses are phrased at the moment runs the risk of bringing us into breach of our legal obligations before it is necessary. I heard what the Prime Minister said about an insurance policy, and I heard what the Lord Chancellor has said about a “break the glass in emergency” provision. That is fine, but it seems clear from the protocol that there are steps that must be gone through first and exhausted before that can properly be done. The most important part to bear in mind is that if article 45 is brought into force immediately after Royal Assent, we would at that point have disapplied the concept of the direct effect of European law, which is part of the agreement we signed up to and which this House passed less than a year ago. So bringing it into force on Royal Assent is needlessly provocative to our negotiations and needlessly undermines our reputation for sticking to the rule of law.

There are also provisions that bind us to act to resolve disputes only through the arbitration process, which is set out in the withdrawal agreement. Article 168, which we have signed up to, states that

“the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.”

There are detailed procedures and timelines for that.

It seems to me that we should be very careful about moving forward with bringing these clauses into force until every opportunity to resolve any dispute has been carried out through the arbitral mechanisms. Only then, and if it is necessary because the EU has not responded to a result of the arbitral mechanism—

[Jeremy Wright]

Does my hon. Friend agree that one thing that should give us some optimism about the use of the mechanisms that he is describing is the specific references to the defence of the Good Friday agreement and of Northern Ireland’s status as part of the United Kingdom in the protocol and the withdrawal agreement themselves?

[Sir Robert Neill]

My right hon. and learned Friend is absolutely right. That is, I think, the best approach for us to take. We should stick to the letter of those provisions, as that gives proper defence of our strategic interests. For example, there is the safeguard provision in article 16, which would enable us to act if, in extremis, the stability of the situation in Northern Ireland and the Union was threatened, but we could do that while maintaining the moral high ground and our intellectual reputation. I see that the Chancellor of the Duchy of Lancaster is listening. I hope that he will be able to go further than the Prime Minister, either tonight or in the course of debates on the Bill, and assure us that those provisions will not be brought into effect unless and until every one of the legal mechanisms open to us has been exhausted and unless and until there has been a specific vote of this House—not by a statutory instrument, which does not give enough scrutiny for such a constitutionally significant issue, but by a specific resolution. That is why my amendment seeks to give the Government an opportunity to have that “break the glass in emergency” provision, but without our triggering a breach of the international legal obligations before it is absolutely necessary.

[Steve Brine]

Further to that, does my hon. Friend not agree that, while there will be some who are still on the, shall we say, Blair end of the argument, notwithstanding what he says, that position would be seen by the majority of people as being a reasonable one for us to take in this Act before we enact the nuclear button that is so often talked about? Would that not be reasonable?

[Sir Robert Neill]

I agree entirely with my hon. Friend, and I do hope that the Government will listen carefully to that. I want to be able to support the Bill. I cannot support it with these clauses in it as they are at the moment. I hope that we will take the opportunity to change and improve these clauses and the way in which they might operate so that we do not fall into a means of damaging our reputation. That is why I cannot support the Bill tonight. I hope that we will see amendments to change what I believe are the egregious, needless and potentially damaging elements of part 5 of the Bill. Unless there are those changes, I will have further difficulty in supporting the Bill. None the less, having listened to what the Prime Minister has said, I want to give the Government that chance in a constructive spirit, and I know that the Chancellor of the Duchy of Lancaster is listening carefully to that.

I do hope that the Government recognise that to act in a way that unilaterally breaches our international obligations is wholly against the spirit of what this country stands for. It is against the spirit, I think, of the party that he and I have always adhered to as a party of the rule of law, and we need to find a constructive means of making sure that we meet our obligations to the Union, but without undermining our obligations to the rule of law. I do not believe that is impossible with good will.

United Kingdom Internal Market Bill

Robert Neill Excerpts

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

[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.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

May I press the Minister a little further in relation to amendment 13 and so on? I accept “preserving a remedy”, but it is a remedy by way of a declaration of incompatibility, as opposed to removing any offensive regulation in domestic law. It is a much harder burden or obstacle for a litigant—for every person—to go through to get a declaration of incompatibility. What is the compelling reason for adopting this unusual approach?

--- Later in debate ---

[Sir Robert Neill]

One of the most salutary but, in retrospect, useful put-downs I ever had when I was a young barrister came when I perhaps overindulged in hyperbole in advancing arguments to the Court of Appeal and Lord Justice Cumming-Bruce said to me, “There’s no jury here, Mr Neill, you can cut out the hyperbole and stick to the arguments.” He was right and perhaps it is not a bad thing to try to do in the Committee on the Bill, as there has been a deal of hyperbole surrounding its passage, coming from those in all parts of the House. We might be better off cutting it out a little and getting back to the nuts and bolts of what we are discussing, because a lot of the Bill is perfectly reasonable and necessary. It is not a necessity I particularly like, because I wish we were not leaving some of the arrangements we currently share, but it has to happen as we exit the transition period. The real difficulty comes from the issues in part 5, which we have discussed on a number of occasions, so let me just return to them.

I listened with care to the Minister, and I do not doubt his sincerity and good intentions in this regard. He must have thought it a pretty rum do when, as a trade Minister, he found himself in the middle of a lawyers’ argument, but that has never stopped the lawyers making that case. I recognise that the Government have endeavoured to shift to try to make clear some of their intentions in relation to the difficult and sensitive matters that part 5 threw up. I will not pretend that we should have started from here; it might have been better to have contemplated the idea of some emergency legislation should we be confronted by what, I am glad to say, the Minister says is an unlikely eventuality, as this is what we all want to avoid if at all possible. I can see arguments the other way as well, so I welcome the constructive approach the Government have adopted towards myself and a number of my hon. Friends who had significant reservations with the Bill, as tabled, to try to make it clear that it is not the Government’s intention to act in a way that would undermine our reputation as a nation and jurisdiction that supports and upholds our obligations in international as well as domestic law.

[Sir William Cash]

I am glad my hon. Friend is referring to a constructive role. I gather from what he said the other day that he was talking very much in terms of last resort, and I want to be constructive, too. As he knows, I have already made the point that the Labour party has been passing Acts of Parliament that clearly and unequivocally override international law and that this has also happened in relation to other legislation in the UK, as I pointed out to my right hon. Friend the Member for Maidenhead (Mrs May). So will my hon. Friend bear that in mind when he is considering the question of last resort, the threshold he referred to the other day and the fact that this is more common and happens more frequently than he may appreciate and that sovereignty, above all else, is the keystone upon which the whole of Brexit depends?

[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.

[Sir William Cash]

Total tosh.

[Sir Robert Neill]

With respect to my hon. Friend, I do not regard it as total tosh. I happen not to agree with it in totality, but I do not think that we should ever dismiss serious legal argument from serious practitioners on either side of the question as being out of consideration. It is a matter that we ought to weigh carefully. I do think that there is an answer. Part of that answer is the one I have just been formulating, which suggests to me that there can be certain circumstances in which the breach of the true meaning of the agreement is such that the UK itself will be entitled to use its international law right.

[Sir William Cash]

I just wonder whether my hon. Friend would consider that bringing in a Bill was a matter of privilege for the House.

[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.

[John Redwood]

Does my hon. Friend agree that we have these complications with this agreement because it was only half an agreement? The original idea was that nothing was agreed until everything was agreed, which would include the future relationship. A lot of that had to be shunted into the political declaration. The danger of what was signed up to is that part of the agreement on so-called withdrawal matters could pre-empt the future agreement in a disobliging way to the United Kingdom. That is why we are in this difficulty and why I think that there is nothing illegal at all in the UK seeking to sort this out in the negotiations and not be at a disadvantage in them. Does he agree with that?

[Sir Robert Neill]

I think that we are in agreement to the extent that I do not believe that the UK has yet trespassed over its international legal obligations, and I agree that we want to get this sorted out in the negotiations. I do not think that I can go further than that at this stage, but I understand that we all want this to be dealt with in the negotiations if possible. I voted for the withdrawal agreement, and I voted for the previous Prime Minister’s withdrawal agreement. It might have saved us a lot of trouble if Members on both sides had voted for that withdrawal agreement in retrospect, but we are making the best of the situation that we have inherited, if I might respectfully say so.

[Stephen Doughty]

The hon. Member is being generous in giving way. Does he accept that damage has already been done to the UK’s international reputation? He rightly wants to deal in facts and the reality of what is going on. I know from conversations that I have had with, for example, officials in UN institutions in Geneva, that the UK has been publicly questioned by other countries, in elections to bodies and negotiations on other matters beyond this matter, because of the very statements that the Government have made and the very clauses in the Bill. That, potentially, seriously undermines our abilities on the international stage on a series of issues: security, trade, climate change and well beyond.

[Sir Robert Neill]

It is certainly fair to say that it would have been better to have had the caveats that the Government have now put into the Bill to begin with, and I am grateful to Ministers for having worked in the way in which they have to achieve that. It would be absurd to pretend that there has not been real concern expressed by people whom we respect and ought to be able to deal with as allies and counterparties going forward. There is a way to ensure that that concern is alleviated and lasting harm is not done, and I am sure that the Government are committed to trying to do that.

Superficially, new clause 1 is attractive, but I am inclined to give the Government the benefit of the doubt that it is not necessary for the reasons that they have set out. I was going to press the Minister, but he has anticipated much of what I have to say. I am sure that he will confirm again, in winding up, that we are committed to ensuring that part 5 is not used to undermine the legally binding commitments and until such time as it is necessary to act to protect a significant national interest of the UK in relation to the integrity of the Union, as a result of bad faith by the EU counterparty —which, please God, I hope never arises—and that we will do so without seeking to oust the legal obligations that we entered into in relation to the safeguarding provisions and the arbitral arrangements under article 167.

Given that, we can make a good case for saying that new clause 1 is not necessary and that the Government’s own intention will deal with that, but I urge the Government, as a friend, to ensure that they reinforce those points very strongly as we go forward, because to persuade the Upper House will be an important task. Continuing evidence of good faith and a willingness perhaps to look at some of the wording would be helpful to the Government.

I have sympathy for new clause 8. My right hon. Friend the Member for Gainsborough (Sir Edward Leigh) and I were reminiscing that we were the two youngest members of the Conservative group of the Greater London Council. We were actually abolished by Mrs Thatcher, by Act of Parliament, but that does not seem to have entirely destroyed our careers or done us lasting harm. I very much take on board my right hon. Friend’s points about the value of the Vienna convention. He and I served on the Council of Europe together, and that convention—again, the UK contributed significantly to it over the years—may benefit us a good deal going forward. Even if it is not necessary to take the wording of new clause 8 into the Bill, the sentiment behind it is useful, and I hope the Government will bear in mind the arguments my right hon. Friend will advance later in the debate, because they may well be useful elsewhere.

--- Later in debate ---

[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.

[Sir Robert Neill]

indicated assent.

[Sir William Cash]

My hon. Friend is nodding his head because he knows this is the case.

--- Later in debate ---

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

The right hon. Gentleman spoke, as always, with great energy and passion. I sometimes regret that his successor as leader of the Labour party, the right hon. Member for Islington North (Jeremy Corbyn), did not show half as much energy and passion in making the case during the referendum; if he had, we would not need to be debating this Bill at all, but there it is.

The reality is that we must make sure that, as we leave the transition period, we have a working internal market, and I therefore support the Bill in principle. I am delighted to see the Business Secretary. I hope he takes on board a point that I know his junior Minister, my hon. Friend the Member for Sutton and Cheam (Paul Scully) has noted: as we build a working internal market, I hope we can find ways in which to expand it to other close parts of the British family that are aligned with and have great synergy with us. For example, the Crown dependencies—the Isle of Man and the Channel Islands—which are linked closely already to financial services and many other parts of our economy.

In particular—I declare an interest as chair of the all-party parliamentary group on Gibraltar—we should make sure that the overseas territory of Gibraltar has clear, free and unfettered access to the UK internal market. They stood with Britain, despite the fact that, like me, they did not want to be in this situation. We owe it to them to make sure that they are not allowed to become collateral damage, economically or in other respects, as a result of the decision that we took. I hope the Business Secretary is actively engaged with the Government of Gibraltar to find ways in which we can make sure that they are able to participate fully in that market and benefit from it.

It is well enough known that the provisions relating to Northern Ireland cause me and many others great concern in their original form. I am grateful for the approach that the Government have adopted, and for the clarifications of their approach and on the changes that they have been willing to make. I will not pretend that we have solved every problem there. I will not rerun the discussion we had on Report, but I gently say this: sovereignty power and reserved powers are generally best used sparingly, lightly and with great deliberation. I hope that, having taken certain powers, we will make sure through our negotiations: first, that we never have need to use them, because the damage would be real were we to do so; and, secondly, that we exercise them with restraint. Like it or not, and whether necessary or not, even accepting the Secretary of State’s proposition that we need a “break glass in emergency” provision, we do have to reflect that this legislation has, for whatever reason, created concern among many of our closest allies and neighbours—people with whom we need to engage.

I want to be in a position where we can, for example, advance the excellent Judge Joanna Korner’s candidature for the International Criminal Court with a clear hand, and say that we are genuinely committed to the rule of international law. I want us genuinely to be able to say in the Parliamentary Assembly of the Council of Europe and other places that we remain committed to the rule of law internationally.

[Bill Esterson]

Will the hon. Gentleman give way?

[Sir Robert Neill]

I normally try to give way, but time is short; I hope that the hon. Gentleman will forgive me.

I hope that we will be able to say, as a number of hon. Friends of mine have been able to do in the Council of Europe, that we are—despite, for example, the difference over prisoner voting rights—committed to the rule of law. We must make sure that we do not allow anything to undermine that, because reputations take time to build. Ours is an excellent one in international legal circles, and we do not want that to be lost.

The Secretary of State made a fair point about the desire for business continuity and for the UK to remain a beacon for inward investment. As well as benign tax and regulatory regimes, the other—perhaps the most important—reason that people invest here is the fact that we are regarded as a safe jurisdiction in legal terms and a safe polity in which to invest, because we do not behave in an arbitrary manner. I therefore hope that we will be very clear that we will stick rigidly to the clarifications and caveats that we gave in relation to the use of any emergency powers, and that such powers will be used carefully, proportionately and without ousting the other obligations that we entered into through the withdrawal agreement and the protocol.

Let me turn to the other matter relating to business continuity. It is important that we rebuild and strengthen our international links for the practical reason that was mentioned by an Opposition Member on Report, and that is the need to go forward. Once we have left the provisions of the EU arrangements at the end of the transition period, businesses will need and want to have a ready, efficient and swift means of enforcing contracts and judgments upon contracts across the EU and with our neighbours. To do that, at the very least we have to join, as a matter of urgency, the Lugano convention. To achieve membership of the Lugano convention, we must have the consent of the European Union members of that convention. At the moment, the Commission is recommending withholding that consent. The European Free Trade Association members have consented.

It would be profoundly dangerous and damaging for British business were we not able to access Lugano, because of all the difficulties for any international contract that I have pointed out. It would be a huge disadvantage and would affect individuals: the woman seeking to get maintenance payments from the absent father, who is now in an EU country; or the person seeking to pursue a personal injury claim, where the driver of the vehicle that went into them is in a different jurisdiction. Rebuilding the bridges to ensure that we can get back into Lugano may sound prosaic, but it is actually profoundly important for the good operation of our legal system once we have left. Sometimes a little less of the poetry—and a bit more of the prosaic—is required in government. I hope that we can now move forward into that stage.

United Kingdom Internal Market Bill

Robert Neill Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Monday 7th December 2020 Commons Chamber

Finally, I turn to Lords amendments 14, 42 to 47 and 52 to 55. The clauses in this part of the Bill have rightly been subject to much debate and scrutiny. The debates on Second Reading, in Committee and on Report in this House were almost exclusively on these clauses in the Bill. The House endorsed the clauses by a significant majority after the Government brought forward amendments to address the concerns raised by Members of the House. I urge Members to do so again.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

The Minister will appreciate, having had some hand in the amendments, that I have an interest in this matter. He will have seen that a statement has been put out by the Government—following the meeting of the Joint Committee earlier today—in which they undertake that they would, in effect, remove clause 44 and deactivate clauses 45 and 47, which were the subject of some concern in this place. Will he confirm that that is the case? Will he also confirm that were there to be any like clauses included in the taxation (post-transition period) Bill, which may come before us, they should, at the very least, be subject to the same parliamentary lock as was inserted in this Bill, if they were to be required at all?

[Paul Scully]

I thank my hon. Friend for his contributions not just here and now, but in the earlier stages of this Bill, which allowed for that important lock. The taxation Bill and this Bill work in lockstep as well, and I can confirm his interpretation. I will come on to that in a second regarding the statement earlier today.

After the transition period ends, Northern Ireland will and must remain fully integrated with the UK’s internal market. There should be nothing controversial about that. The protocol expressly recognises that Northern Ireland will remain part of the UK’s customs territory and qualifying Northern Ireland goods will enjoy unfettered access to the rest of the UK market. We will never accept additional burdens or barriers on goods moving from Birmingham to London, and neither should we accept those on goods moving from Belfast to Liverpool. Moreover, clause 46 would codify in legislation the existing practice where state aid is notified to the European Commission by the Foreign Secretary via the UK mission in Brussels.

--- Later in debate ---

[Paul Scully]

Indeed, we all want this to be dealt with through the Joint Committee. That is why the discussions are continuing, and that is why, in these crucial hours of negotiations between the UK and the EU, we wish them well in that regard.

[Sir Robert Neill]

I will not trespass on the Minister’s time again, but will he confirm that the deactivation of clause 47 would remove one of the areas—the “notwithstanding” clauses—that caused most concern, particularly to legal commentators? Does he agree that that is a significant gesture of good faith on the part of Her Majesty’s Government’s and that it will hopefully remove some of the real concerns that have, for legitimate reasons, been expressed in other places? Does he agree that this demonstrates that we want to find a constructive way forward?

[Paul Scully]

My hon. Friend is right again. I know the debate that has surrounded the “notwithstanding” clauses, and it is important that we work in collaboration and partnership as we do these difficult negotiations, but, ultimately, that is where we want to solve these problems, rather than having to legislate for them in the first place. As I say, we will deactivate them when we get to the point that that is consistent with the United Kingdom’s rights and obligations under international law. While we are hopeful of success, it is only prudent that until such time as the discussions have successfully concluded, we retain these clauses in their current form as a fall-back option.

As has been said many times, the Government are fully committed to implementing the withdrawal agreement and the Northern Ireland protocol, and we have already taken many practical steps to do this, but these clauses will ensure that, irrespective of the outcome of our negotiations with the EU on implementation of the protocol, we will always protect Northern Ireland’s place in the United Kingdom. They will ensure that businesses based in Northern Ireland have unfettered access to the rest of the United Kingdom and that there is no legal confusion or ambiguity in UK law about the interpretation of the state aid elements of the Northern Ireland protocol.

--- Later in debate ---

[Sammy Wilson]

Any agreement that means laws can no longer be made in the United Kingdom, and puts economic barriers between ourselves and our main market, is bound to be a change in the position of Northern Ireland that is totally contrary to the Good Friday agreement, which requires consent.

Some have argued that the Bill puts a safety net in place and that some of the aspects—only some of the aspects; I have to make that very clear—of the withdrawal agreement which could damage the Northern Ireland economy can be countered through the measures in the Bill. That, by the way, is totally in line with the withdrawal agreement itself, which allows the UK Government to act unilaterally where there is economic or societal damage done by the withdrawal agreement. The right hon. Member for Doncaster North (Edward Miliband) said, “Well, there you are. You’ve got your assurance in the withdrawal agreement.” But all the withdrawal agreement states is that the Government will have the right to act unilaterally. They must have the means to act unilaterally. The provision in this Bill gives them the means to act unilaterally. Ministers, notwithstanding what is in the agreement, can make new regulations and new laws that protect the Northern Ireland economy and the Northern Ireland market. That is why it is so essential to have these provisions.

What disappoints me is that we now have the Prime Minister today saying, “By the way, once we have a negotiated settlement and the work of the Joint Committee, then we can withdraw this.” That fails to recognise the nature of what we have entered into. The safety net is there not just for a one-off event, but because we will be continually walking the withdrawal agreement tightrope. Northern Ireland is still going to be subject to the rules of the internal market. Indeed, the withdrawal agreement makes it quite clear that the work of the Joint Committee will go on and on. At any stage, EU officials could demand that checks be placed in Northern Ireland and that UK officials would have to adhere to that. If those demands become unreasonable, we will then need a safety net. If we need a safety net, we do not need it until these negotiations are over. We need it while any part of the withdrawal agreement and the Northern Ireland protocol is in place.

I would therefore like an assurance from the Minister that if the Government intend to withdraw the safety net—if negotiations turn out fine this week—what protection will there be for Northern Ireland from the depredations of the withdrawal agreement in the future? That is important. I believe that this Bill is essential. The Government owe it Northern Ireland, having signed a disastrous agreement this time last year. If the integrity of the UK is to be maintained, the provisions in this Bill and, indeed, other provisions will be necessary.

[Sir Robert Neill]

It is a pleasure to follow the right hon. Member for East Antrim (Sammy Wilson), although I fear that I cannot agree with him on one point. I understand the point of view of those who voted against the withdrawal agreement that they can attack what they regard as its inadequacy. I voted for the withdrawal agreement, as did pretty much everyone else on the Government Benches, and I take the view that one should not deviate or depart from it, save under the most exceptional and pressing circumstances. At the end of the day, despite a great deal of debate, that is pretty much where we have ended up. I would not be comfortable about doing so were it ever necessary. I would not find it attractive. Sometimes, though, events occur in the nature of international negotiations that may render it necessary.

The Government having reflected, as I am glad they did in the Bill’s passage through this House and added the parliamentary lock to clause 56, there is a proportionate means of dealing with such an unwelcome eventuality should it arise. It is not something that we should look to. It is not something that we should desire and it is not something that we should make easy either. It is something that should be done only if a high bar of evidence is met and if this sovereign Parliament—to use a phrase that has been much used—is itself satisfied of that. That is reasonable. It is also not inconsistent with the international law approach under article 46 of the Vienna convention where it is possible, in limited but urgent circumstances, to deviate from an international rule of law if it is necessary to maintain the fundamental internal rule of law of the state. This is not something that has been dreamed up without sound legal foundation, which is why, while I am normally most reluctant to disagree respectfully with two former Lord Chief Justices, Lord Judge and Lord Thomas of Cwmgiedd, both of whom I regard as friends and admire greatly, I do take the view that they take a more restrictive approach than is necessary in this case.

To take a contingent power is not of itself a breach of international law, or of itself a breach of good faith. If that were used disproportionately, or without the sort of checks and balances and proper lock that we have now adopted, I can see that that would be the case. I do not believe that the taking of the power, which has not yet been brought into force and would not be without certain hurdles having been met, itself offends against the principle of the rule of law with every respect. Indeed, I hope that, in that respect, we have managed at all times to adhere to the rule of law. That is why, I am pleased to say, the Government intend to reinstate the parliamentary lock, which was removed by their Lordships as well as those clauses that they found offensive. That was perhaps surprising. I say charitably to my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) that it was perhaps seen as consequential and inevitable if we removed the commencement part of part 5, to be kind.

The reality is that, because the Government have committed to, and reaffirmed today that they are committed to, restoring the parliamentary lock and gone further and indicated that, in subsequent related pieces of legislation, they will adopt the same approach, that does show an internal consistency, a logic, in what is being done. The situation makes me, as somebody who was a lawyer before I came here, and will, I suspect, still regard myself after I have left here, not happy but satisfied that the proper tests have been met in these exceptional circumstances. That is why I am content to support the Government in these motions to disagree tonight, but with the very profound hope that this is never necessary, that we never come anywhere near this, and that the Prime Minister is able to achieve a deal. If he does come up with a deal, he will have my wholehearted support, and the support of many others with a like view, because that is by far the best outcome for the whole country, for the Union and for business.

At the end of the day, I do not think that the clauses that the Lords sought to remove actually offend against propriety and, for that reason, I am prepared to support the Government tonight. They have shown willingness to be pragmatic, to make compromises and to listen. That should be something that one should applaud. I hope therefore that we will be able to return the Bill to their lordships so they can perhaps reflect that it is not necessary for them to insist upon their amendments.

United Kingdom Internal Market Bill

Robert Neill Excerpts

Consideration of Lords amendments
Thursday 10th December 2020 Commons Chamber

[Drew Hendry]

I am not going to take interventions. We are very short on time, so I am going to press on; sorry.

Lords amendments 8B to 8L, 13A and 56A require the Secretary of State to seek the consent of the devolved Administrations before exercising the powers, setting a time limit for that and a process if consent is withheld. Lord Stevenson said:

“The purpose of our amendment is to preserve the potential for managed policy divergence that is central to the devolution settlement.”

Again, the UK Government just ignore that. Lord Stevenson also noted:

“The Government have failed to explain properly why their list of exceptions is so much more restrictive than that of the EU—well, we can probably work that one out”. —[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1268-69.]

Let us not forget that this covers a huge range of effects for people in Scotland, Wales and Northern Ireland:

“environmental standards and protection…animal welfare…consumer standards, including digital and artificial intelligence privacy rights…employment rights and protections…health and life of humans, animals or plants…protection of public health…equality entitlements, rights and protections.”

It has a massive impact on Scottish public society.

Lords amendments 1B, 1C and 1D seek to protect the role of the common frameworks in the Bill. The Minister thanked Lord Hope, but he was the one who pointed out that

“if there really is a will on the Government’s part to make this system work, a solution can be found.”

He also said:

“Traders from other parts of the UK who had no regard for the higher standard could simply ignore it, irrespective of how simple and easy it was to comply with. That is not where we should be going.”

He concluded:

“A balance needs to be struck here, if devolution is to be respected.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1249-50.]

Time after time after time, Members of the Lords pointed out the massive disrespect and contempt the Government have for the devolution settlement. Baroness Hayter of Kentish Town warned the Government

“to be very careful about clawing back decisions from our now quite long-established devolved settlements.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1256.]

The Scottish Government, by the way, remain fully committed to the common frameworks process, as this Minister knows. I cannot use the language I would like to use in this House about what the Minister repeated, but he knows that the Scottish Government have remained 100% committed to the agreement that was set up to take the process through, and he should correct the record.

This Bill is unwanted and unwarranted and unashamedly undermines devolution. It is an attack on the democratically elected Scottish Parliament and the vast majority of the Scottish public who value it. Since 2014, promises to them have been routinely broken in this place. Their votes and their views have been ignored over Brexit. Now, Scotland will be the only country not to get what it voted for in that referendum. They will in the next one. They know that. The only way to protect their rights and their Parliament is for them to take the next logical step and for Scotland to become an independent nation.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the fact that the Government have accepted that it was unwise, if I can put it charitably, to have certain clauses in this Bill that might have impugned our international reputation for supporting the rule of law. I welcome the Minister’s approach and that of his colleague Lord True in the other place. The Bill is better off without those clauses. I had sought at the very least to ensure there was a parliamentary lock should such clauses ever be needed, but I hope that through the agreement achieved in the Joint Committee, thanks to the work of my right hon. Friend the Chancellor of the Duchy of Lancaster, they are not needed at all. It is better, therefore, to leave the Bill clean in that way to serve the other important purposes that it does have to achieve.

That is why, with all due respect to my hon. Friend the Member for Stone (Sir William Cash), I trust that the Minister and colleagues will firmly resist any temptation to try to reinstate such clauses, which would be unnecessary, provocative in more ways than one, and unhelpful to the purpose we all seek to achieve.

I read with care the speeches of two former Lord Chief Justices and the former leader of my party, my noble Friend Lord Howard of Lympne, who himself was a distinguished Queen’s counsel with many years in practice before he came into this place. They certainly were not talking nonsense; they were making legitimate and fair points about areas of concern, even though I perhaps was more content to go with the view of David Wolfson QC, who was quoted by Lord Naseby, that the taking of such clauses into the Bill was not of itself a breach of international law until such time as they were brought into force. We are none the less better off not going down that route, so I hope the Minister will resist any temptation to put anything of that kind back into this Bill or into the Taxation (Post-transition Period) Bill, because that would muddy the waters needlessly, legally and politically.

We are going to require political goodwill on all sides to make the coming days and weeks work. Were it ever to be necessary to take such extreme measures in such extreme circumstances that might occur, immediate primary legislation on an emergency basis could of course be done, and that would give the parliamentary lock that I was concerned should exist, but through another form. It is not necessary for us to go down that route now, because, frankly, to try to reinstate the clauses would be fatal to the progress of the Bill, and that would not be in the interests of the Government or anyone else. I thank the Minister for the way in which he and his colleagues have approached this matter.

[Sir William Cash]

Will my hon. Friend give way?

[Sir Robert Neill]

Nobody else has been giving way, with every respect to my hon. Friend. Other people want to get in. I have said what I have to say. In fairness, he and I could happily go on all day about this in a friendly manner of disagreement, but I think possibly that is for outside the Chamber, rather than in it. I say that in the nicest possible way.

[Mr Deputy Speaker (Mr Nigel Evans)]

I will call Mr Scully to close the debate no later than 2.30 pm.