United Kingdom Internal Market Bill

Robert Neill Excerpts

Monday 21st September 2020 Commons Chamber

[Mr Walker]

I take no lectures from the SNP on this issue. It is clear that the reason why the SNP opposes the withdrawal agreement is that it opposed our leaving the EU in the first place. With regard to the development of technological solutions, I agreed with Michel Barnier when he said that it is important that both sides look at innovative and flexible solutions. When it comes to the future debate in the Northern Ireland Assembly on consent, it may be that technological progress can help with delivery, so I think that many of these arguments stand. We are committed to the protocol and to all our commitments to Northern Ireland, including the unfettered access as part of our United Kingdom.

I turn to two amendments regarding the commencement of these provisions that have been subject to much debate and attention, including a number of powerful and persuasive speeches on Second Reading. Amendment 4, which is in the name of my hon. Friend the Member for Bromley and Chislehurst, the Chair of the Justice Committee, and is signed by my hon. Friend the Member for North Dorset (Simon Hoare), the Chair of the Northern Ireland Affairs Committee, seeks to provide in essence that break-glass mechanism on the key safety net provisions in relation to the protocol by stating that clauses 42, 43 and 45 of the Bill may not come into force until a motion in this House is passed.  Since that amendment was tabled, I am pleased that there have been constructive talks between my hon. Friend the Member for Bromley and Chislehurst and Ministers, and the Government have tabled amendment 66, which provides for substantially the same break-glass mechanism, with the additional requirement for a take-note debate in the other place. I hope that that amendment will demonstrate to hon. Members, including the Chair of the Justice Committee, that we are committed to ensuring that any decision to use the powers is explicitly approved by Parliament.

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

I thank my hon. Friend for the constructive tone that he and members of the Government have adopted in these matters. It enables some of us who otherwise would not have been able to support these clauses to proceed, on the understanding that there is a specific parliamentary lock that bad faith on the counter-party’s side must be proven to the House before these powers are brought into operation, which of course all of us hope will never be the case. I welcome that, and it enables us to support the Government’s amendment.

[Mr Walker]

I am very grateful to my hon. Friend for that point. A fundamental principle of our constitution, and one that lies at the very heart of our exit from the EU, is that this Parliament is sovereign. As set out in clause 38 of the European Union (Withdrawal Agreement) Act 2020, that means that it can choose to legislate to deliver an interpretation of the protocol consistent with our understanding, while recognising that to do so is a significant step. The parliamentary procedure set out in amendment 66 recognises that, and provides a clearer, more explicit democratic mandate for the use of the powers. I therefore commend amendment 66 to the Committee, and urge my hon. Friend and all Members to support it and not to press amendment 4.

--- Later in debate ---

[Gavin Robinson]

The first aspect of that question is the intended breach, and the answer is clearly no, because amendment 68 talks about “new requirements”, and if the hon. Gentleman reads the content of the amendment, he will see that. The Northern Ireland Assembly has cross-community voting mechanisms not to provide vetoes but to encourage consensus. The hon. Members on the Benches to my left know exactly why those provisions were brought in, and they know the importance of them, but they tend to believe that they are worthy of use only when there is an issue for which they wish to use them. That is hugely regrettable. When I talk about the consent of the Northern Ireland Assembly, I know that there are cross-community mechanisms to ensure that we get to a place of consensus. I do not believe in stalemate or in logjams. I have spent my political life trying to resolve them. I hope that when I contribute on issues in this House, people respect the fact that, although I do not necessarily agree with everyone, I try to get to a place where we can agree.

Businesses in Northern Ireland that buy from GB and wish to sell to GB want to know what their trading position will be. They were promised the best of both worlds, yet day after day they are learning about the bureaucratic and administrative burdens that are going to be placed upon them. They want answers. I know that the Minister will respond thoughtfully to the debate, and that he will pick up on some of the additional issues that I have raised on amendment 68. I hope he does that. I hope he offers some clarity and comfort for businesses in Northern Ireland, and I hope he outlines just how the Bill will assist them. I believe that it will not do so, however, so I hope that he gives us some clarity as to what steps the Government are prepared to take in the Finance Bill to resolve these overarching and burdening issues, which remain unresolved, through the Joint Committee.

[Sir Robert Neill]

This has not been the most edifying spectacle for the House of Commons over the past few days, but I hope that, at the end of the day, we can find a constructive way forward. I say that it is not edifying because, although much of the purpose of the Bill is important and valuable, to act in contemplation of something that most of us would regard as unworthy—namely, to breach an international obligation—is not something that one should ever seek to discuss lightly. Equally, it is not something that can ever be an absolute, because there can be certain extreme and pressing circumstances where such a derogation is permissible, but the bar has to be a very high one. That is why the discussions that have taken place between some of us and the Government, and the Minister’s response, are important, as far as my thinking is concerned. On the face of it, as my right hon. Friend the Member for Maidenhead (Mrs May) observed, without safeguards and caveats, clauses 42, 43 and 45 would without more ado be unconscionable, and we could not support them.

I want also to speak to my amendment 4 and the Government’s amendment 66, which I hope will provide a means of reconciling that position with the need to find a constructive way forward.

[Sir William Cash]

Will my hon. Friend give way?

[Sir Robert Neill]

If my hon. Friend will allow me to develop my point a little, I will of course give way to him in a moment.

Without a parliamentary lock, I do not believe that it will ever be appropriate for a sovereign Parliament to contemplate breaking an international obligation. There has to be a test for the parliamentary lock to be met. I welcome, therefore, the Minister’s comments on Government amendment 66 and the test that he has adopted—and that was previously put out by Downing Street—at the Dispatch Box in respect of the high bar that would have to be met before the House could or should be persuaded to support such a course of action. For me and, I suspect, many other Members, the bar would have to be a high one.

[Sir William Cash]

Does my hon Friend agree that that bar becomes very apparent when dealing with the essential question of sovereignty and whether the EU is recognising sovereignty in the negotiations in the way that was clearly stated in the protocol and in the essential elements of the agreement? We are sovereign and our constitution is special in that respect, compared with some other countries that have provisions in written constitutions.

[Sir Robert Neill]

Let me put it this way: if my hon. Friend is saying that the test is something akin to that in article 46 of the Vienna convention on the law of treaties, which permits a departure from an international obligation if the violation that causes it is

“manifest and concerned a rule of its internal law of fundamental importance”,

I am not a million miles away from him. It is not an exact analogy and I do not think my hon. Friend was trying to make one, but it would have to be something similarly fundamental.

From my point of view, one could conceive—I use my words carefully—that a Government might be able to persuade the House that there was such a threat to the position of Northern Ireland in the United Kingdom, and to the welfare of its economy and people, that one might take such a step. That is why, having thought and hesitated for some time, I am prepared to allow the Government the opportunity to make that case. None the less, it is a high bar, and I have to say that the fact that other jurisdictions—be it the EU or others—may have derogated from international treaties is not of itself persuasive. Many of us would need to be persuaded by the evidence that was brought in relation to the specific circumstances that might trigger the bringing into force of the three clauses under the arrangements set out in Government amendment 66. That is the point and will be the only test that will be relevant.

[Mr Carmichael]

I have sympathy with the argument that the hon. Gentleman is making, but I have to say that the practicalities will take us in a very different direction. Last week, No. 10 Downing Street was briefing out that the hon. Gentleman and those who agreed with him would have the Whip removed if they followed through on his amendment. That is the pressure under which Government Members will be put. May I suggest to the hon. Gentleman that it is possible the Government have accepted his proposition because they see it as something that in practice will not cause them any difficulty?

[Sir Robert Neill]

I shall make two points to the right hon. Gentleman. First, he knows my record does not indicate that I am always in terror of voting against the Whip. Secondly, if anything like that was being briefed out, I never heard it, it was never said to me and I am shocked that any Government would brief such a thing without saying it to the face of the Members concerned.

[Rehman Chishti]

I can confirm that when on the Sunday I conveyed to the Government my concerns with regard to aspects of the Bill and said that on Monday I would be resigning as the Prime Minister’s special envoy for freedom of religion or belief because of real concerns about aspects of the Bill, no one at all from No. 10 ever said that the Whip would be withdrawn; instead, they said that they understood and accepted my decision.

[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.

[Several hon. Members rose—]

[Sir Robert Neill]

I must press on now, and not take any further interventions for some time out of respect for others who wish to speak in this debate.

The Government now accept that they must come to the House and make their case. I think that they recognise that that case would have to be a persuasive one, and that the level of breach by the EU—which would have to be a breach of its obligation of good faith, which in turn would be a breach, it seems to me, of the obligations under article 26 of the Vienna convention to operate in good faith—would have to be made out before I and many others would be prepared to vote for such a course, because of the potential consequences for our international reputation and standing. That is why I am prepared to adopt the formulation of the Lord Chancellor that such a thing might be acceptable in extremis. This is not a carte blanche for the Government, and, in fairness, I do not think Ministers have ever taken it as such; I think they know that it weighs heavily to do such a thing. If the Government move amendment 66 at the relevant stage tomorrow, I will be prepared not to press my amendment, but it is to give the Government the chance to make their case as to why such an exceptional step should be necessary.

It is not wise or constructive to conflate the positions of domestic and international law in this debate; they operate in different spheres, and much of what we are looking at would be in relation to treaty law. A test that is not dissimilar—although it can never be exactly the same—to those considered in the Vienna convention is, therefore, not out of the way.

I welcome, too, the fact that the Minister indicated that the measures that would be initiated would include the arbitral provisions under the protocol to the withdrawal agreement. To try to oust those provisions would be a material breach of the agreement on our part, and would be unconscionable. Under certain circumstances the timeframe for that might not be capable of being resolved in such a way that we might not have to take some proportionate and temporary action ourselves to safeguard a vital interest, but I am sure the Minister and the House will note that I choose my words carefully in all those regards. This is not a green light to treating our international obligations lightly or cavalierly; it is an opportunity for the Government to justify why it might be necessary. One cannot give undertakings as to what that might be until we have seen the evidence at the appropriate time, and I am sure the Government know that, too. But I hope that in practice this also has the desirable effect of enabling the negotiations to proceed and, at the end of the day—with good faith on both sides, which I hope, underneath, is still there—we can get an agreement with the European Union and leave on the terms of a deal. That may not be as good as I would have liked, but much of what I have been doing ever since the referendum is trying to mitigate a circumstance that I did not wish for but which I believe has to be addressed head-on for the sake of the country. If we can achieve an agreement, I hope these provisions will be otiose and we will see no more of them. The rest of the Bill is necessary because we need a proper and efficient working of our internal market once we leave the European Union. Therefore, my other motive for adopting the course that I have is not to obstruct the rest of the Bill needlessly.

It is in that spirit—which has, in fairness, been reflected in my exchanges with the Minister—that I set out the case for why the amendment is important to debate and to consider. If the Government are able to deliver in the terms that we have discussed, I will give them the chance to make their case, if it ever be necessary, in the profound hope that we never actually get to that.

[Claire Hanna (Belfast South) (SDLP)]

I rise to commend to the Committee amendments 46 to 48, amendment 41 and new clause 7, which stand in the name of the hon. Member for North Down (Stephen Farry).

There has been so much invocation of the Good Friday agreement, in favour and against the measures in the Bill, that I think it bears repeating some of what is and is not contained and implied in that generation-defining agreement. Those who have read the agreement will know that it does not really talk all that much about borders, trade and internal markets, because, frankly, the EU had settled all those things, and in 1998 the prospect of either Government choosing to leave the security, opportunity and prosperity of the EU would have been considered insanity.

Violence was the reason for the continuing fortifications. The Good Friday agreement was the document that articulated most clearly the argument, which had been made by John Hume and others for so many years, that violence was neither needed nor justified. It took the gun out of Irish politics and ensured that the purported justification of those behind the violence was addressed. The agreement was then endorsed by the people of Ireland, north and south, in overwhelming numbers, and endorsed by both Governments, as the only way to achieve your politics. It took away the excuse and put peaceful constitutional views to the fore. It meant that Unionists, nationalists and others could have their views with dignity and that we all had a decent pass forward.

The Good Friday agreement does not say much about borders and trade, but it does say a lot about relationships, aspirations, consensus and respect, and I think that those are the values that unfortunately have been most damaged and will be most damaged by the Bill. The declaration that accompanied the agreement—