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?

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[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.

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[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.

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[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.