United Kingdom Internal Market Bill Debate
Full Debate: Read Full DebateWilliam Cash
Main Page: William Cash (Conservative - Stone)Department Debates - View all William Cash's debates with the Ministry of Housing, Communities and Local Government
(4 years, 2 months ago)
Commons ChamberI very much do not hold the devolution settlement in contempt. It is right that we work together. I believe that the UK is stronger together. It is important that we give Scottish businesses—just as much as Welsh, Northern Irish and English businesses—the certainty that they want to be able to trade, so we will continue to engage with the Scottish Parliament and officials and politicians up there to achieve legislative consent.
Hundreds of powers will flow from the EU to the devolved nations and the UK Government in an unprecedented transfer. As we recover from covid, we must ensure that our economy is stronger than ever. That is why the Government have introduced this Bill and why it is essential that we pass it. We want to guarantee the continued functioning of our internal market, to ensure that trade remains unhindered in the UK.
I will begin by speaking to the amendments tabled by my right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy, starting with those that strengthen the Bill’s measures relating to the governance and functioning of the Office for the Internal Market. The office will sit within the Competition and Markets Authority to monitor and report on the internal market on an equal basis for all Administrations. The Competition and Markets Authority has a strong reputation for independence and impartiality. The Government have strived to preserve that reputation in setting out the functions to be carried out by the Office for the Internal Market. By providing non-binding, expert reporting and technical monitoring on regulations and proposals, it will provide robust evidence on the actual or potential impact of regulatory measures.
New clause 4 gives the Competition and Markets Authority the objective of supporting the effective operation of the UK internal market through the provision of economic and technical advice and expertise. That will exist in parallel to the existing objective of the Competition and Markets Authority to promote competition for the benefit of consumers.
New clause 5 enables Competition and Markets Authority functions under part 4 of the Bill to be carried out by an Office for the Internal Market task group and introduces a new schedule setting out the Government’s arrangements for the Office for the Internal Market panel and task groups. That mirrors the existing arrangements for the establishment of panels and groups that it has in place.
New schedule 1 establishes a panel of experts to lead the work of the Office for the Internal Market. The Secretary of State will appoint a chair and further members, following consultation with Ministers from all three devolved Administrations.
Will the Minister confirm that the arrangements under the Bill regarding the CMA guarantee that we will not have any jurisdiction by the European Union or the European Court over the CMA and, furthermore, that one of the cardinal principles on which the European Union and the Commission are taking their stand is that they insist that we should not benefit competitively from leaving the European Union and we should not be able to compete with them on reasonable terms?
I am grateful for that typically wise intervention. I am happy to provide that confirmation.
Amendment 1 provides absolute privilege against defamation for the Competition and Markets Authority when carrying out its functions under part 4. That will ensure that it can report and provide advice independently without needing to expend resources on preparing to defend litigation, and that businesses with deep pockets cannot sue or threaten to sue the CMA to obstruct it from carrying out its functions.
I shall set out briefly for the House the amendments that will improve the Bill’s drafting. Through amendments 31 to 34, we are taking the opportunity to put it beyond any possible doubt that alcohol minimum unit pricing-type regulation and any other sales requirements are not in the scope of the mutual recognition principle, unless they amount in practice to a total ban on a good being sold. That came up in Committee. We want to make sure that rather than politicking, we can return to a business continuity approach.
My hon. Friend makes a good point. Like him, I had a wry laugh when I saw that advert.
I will just make some progress, if the hon. Gentleman does not mind.
Those noble contributions aside, we really have heard it all from those on the Government Benches during these debates. In trying to justify their latest cack-handed approach to public relations ahead of crunch trade talks with the EU, they have come up with a whole menu of reasons to support the Bill as drafted. Here is the highlights package. Do the Government break an international agreement—an agreement that the Prime Minister signed a few months ago? Do they break the law? Apparently, this Bill only breaks the law in a “limited and specific way”. Others on the Government’s own Benches, as we have already heard today, disagree. Some Members said that the Bill does not break the law in any way, but the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said that it was okay because other people break the law, too. So which is it?
Perhaps the hon. Gentleman might be able to answer that question. Which is it?
I would just like the hon. Lady to answer a simple question. Is she aware that, when in power, the Labour party frequently overrode treaties and has, therefore, in her own terms, broken international law. Is she aware of the number of times that that has happened and how egregious it was? The same applies to many of the matter to which she has just referred.
The hon. Gentleman has failed to give me an example, so I am not sure what he is referring to. He has spent his whole political career campaigning for us to leave the EU treaties, and the withdrawal agreement, which he supported and which his Government signed, did exactly that, and he is still not happy with it, so I do not know which it is.
The former Prime Minister said in a powerful speech last week that this Bill will tarnish and do “untold damage” to our reputation and weaken the UK in the eyes of the world.
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.
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?
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.
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.
I just wonder whether my hon. Friend would consider that bringing in a Bill was a matter of privilege for the House.
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.
Of course, the hon. Member is entirely wrong with his selective quoting. This absolutely underlines why the Tories have not won an election in Scotland since 1959. You have to be about 90 years old to remember voting in an election that the Tories won. Why? Because they do not listen to the people of Scotland and they do not have their interests at heart. Using this Bill, they are able to lower standards by holding a veto over Scottish Parliament decisions. The mutual recognition mechanism in the Bill starts a race to the bottom on standards, with the UK Government imposing their will.
As we heard, clauses 2 to 9 contain sweeping powers on animal welfare, food safety, environmental protections —every single aspect of Scottish life: the water we drink, the food on our table, the buildings we construct, and even our NHS. We know that chlorinated chicken is on the table and that it will be bloating our tables as a result—[Interruption.] They groan, but Donald Trump said that
“everything is on the table”—
and that means products from the States, including that and hormone-injected beef. What else will be presented to us while the UK Government desperately scratch around for a trade deal, leaving no stone unturned regardless of who or what is underneath it?
The Bill hamstrings the Scottish Parliament from protecting the highest standards of food safety, from protecting Scottish farmers’ livelihoods, and from protecting the highest standards in our environment and our building control. It hampers the Scottish Government’s ability to keep public companies in public hands, including preventing attacks on the NHS. Worse still, as I said earlier, it puts the power to overrule Scotland’s Parliament in the hands of one Tory Minister. The Secretary of State for Business, Energy and Industrial Strategy has the
“power to alter these exclusions”.
Professor Michael Dougan has warned of the impact of the mutual recognition principle and the effect that it will have on Scottish produce:
“The impact in practice of this Bill in many of the proposed exercises of devolved competence in relation to trading goods or services is to effectively penalise domestic producers or traders and not be able to enforce the same standards against imported goods or service providers.”
As I mentioned earlier on the teaching council, Scotland requires secondary teachers to have a relevant degree in the subject that they teach. However, part 2 of the Bill, on professional qualifications, forces Scotland to accept teachers with lower qualifications. The chief executive of the General Teaching Council for Scotland, Ken Muir, said that
“our key concern about the Bill is the extent to which we ourselves, and parents, and users of the education system would feel that”—
it—
“would be watering down the teaching profession in Scotland”.
The Minister mentioned that the Government have tabled a new technical amendment, amendment 32, with the purpose of
“further clarifying the freedoms of all parts of the UK to regulate pricing and manner of sales policies as long as they are non-discriminatory.”
Of course, that is the key line—
“as long as they are non-discriminatory”—
and they say that “we have now acted to provide increased legal certainty around this point”. The Minister conceded earlier that that was in relation to alcohol minimum unit pricing. I remind hon. Members that Ministers had told us that that was not affected by the Bill and did not come into account in it, and now they are admitting that it does and they have put this absolute sham of an amendment in place to cover that. All it does is leave this open to be overridden by the non-competitive clause.
We heard about financial assistance. In case anyone is seduced by the spending promises, I have been calling for clarity on the so-called shared prosperity fund since 2017 along with my SNP colleagues. As the Financial Times reported, an individual close to the discussion said:
“The current plan is an odd combination of reserving state aid [for control from London] but then agreeing to a free-for-all. They just want to be able to bung money at things and do not want UK internal market legislation cutting across that.”
That is odd, or is it just convenient?
The Tories’ Communities Secretary has spent millions of pounds from the towns fund on 61 towns, 60 of which happen to be Tory marginals, including his own seat. In the highlands, we understand that directly, because in 1992, Prime Minister John Major took money from the highlands to shore up flagging support in the south-east of England. We have experienced the altruism of Tory Governments.
The flood of amendments to fundamental aspects of the Bill, including from UK Ministers, shows that it is completely bad and shoddy. Clause 5 transfers the CMA functions to the OIM. Drafting errors abound throughout. Amendment 15 actually attempts to further undermine the rule of law. It says:
“No court or tribunal may entertain any proceedings for questioning the validity or lawfulness of…section 42(1) or 43(1).”
That is dangerous and toxic stuff. That follows an absolutely useless and terrible consultation that failed to include and engage the devolved Governments on aspects of the Bill that see the Government strip powers from Edinburgh, Belfast and Cardiff. The legislation was shared with the devolved Governments only hours before publication.
The recklessness of the Tory Government only creates more uncertainty. When their reasonable worst-case scenario is two-day delays to freight on the channel and 7,000 lorries in Kent, with an estimated 275 million new customs declarations each year post Brexit that will cost about £15 billion, they can add the words “absurdly” and “tragically” to reckless.
Poll after poll now shows that people in Scotland understand that the only way to protect their democratically elected Parliament, to protect standards and to keep their waters and NHS safe is through Scotland becoming a normal independent nation and taking its place in the international community. This Bill insults Scotland. We will not vote for this Bill.
Order. Just another reminder: I am conscious that many of the initial contributors are speaking to amendments, so it is important that we are flexible, but I say again that if we want to get in the many Members who want to contribute to the debate, it is important that at this stage, Members are as brief as they can be while getting their important points in.
There has been a heated and, in many respects, misconceived debate about the question of our compliance with international law. I had something of an exchange with my right hon. Friend the Member for Maidenhead (Mrs May) on Second Reading. I made the point that UK law has, in the past, breached international treaties. That stands, because it is important for us to recognise that that has been the case.
Indeed, it is often forgotten that the EU guidelines of 29 April 2017, which my right hon. Friend’s Government allowed to happen, unilaterally imposed on us requirements contravening article 50 of the Lisbon treaty and insisted that we should obey the basis of the EU’s idea of the conduct of negotiations. As Clausewitz said, diplomacy is war by other means; I believe the gloves are about to have to come off.
The withdrawal agreement and the political declaration recognise the autonomy of the EU and the UK, but whereas the UK is a sovereign state, the EU is merely an international organisation. UK sovereignty is expressly recognised by the EU as of its own kind—sui generis. The EU manifestly contradicted that by insisting on European Court jurisdiction, thus subverting the constitutional status of Northern Ireland itself. It was even reported that that was the price we would have to pay. The EU continually denied our sovereignty during the negotiations with a wanton disregard of our unique, unwritten constitution and sovereignty, which it is bound to understand because we have been in a relationship within the same legal order for the last 40 years.
I do not have time, I am afraid.
At the same time, there have been a number of UK precedents, which I have explained already. I do not have the time to go into them; I will attempt, as other Members will have to, not to go into huge detail, but I will give a few examples. In 1945, a Finance Act passed by the Labour party overrode international law. The same applied to the Indian Independence Act 1947 and the Burma Independence Act 1947. In fact, in the case of India, more than 400 treaties were broken.
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.
My hon. Friend is nodding his head because he knows this is the case.
There is an important point here. To take the example of animal welfare or food safety, those powers remain devolved, but they are devolved in name only, because by imposing the minimum standard as the lowest standard for all legislatures, those powers are seriously undermined. I have to say to the Business Secretary that I fear that the Bill will only strengthen the hand of those who want to break up the UK.
On international law, nobody should be in any doubt about the damage already done by the Bill. I do not blame the Business Secretary, but this law-breaking Bill has been noticed around the world by not just the Irish Government, not just our EU negotiating partners, and not just Joe Biden and Nancy Pelosi, who the Government can dismiss. Even President Trump’s Northern Ireland envoy Mick Mulvaney visited the Republic of Ireland yesterday and said:
“I think anyone who looks at the situation”—
with the United Kingdom Internal Market Bill—
“understands there could be a series of events that could put the Good Friday Agreement at risk.”
When the Trump Administration start expressing concern about your adherence to international agreements and the rule of law, you know you are in trouble. That is how bad this Bill is.
I am going to carry on.
It is important to hear the words of the right hon. Member for Maidenhead (Mrs May) in her coruscating and brilliant speech in Committee. Government Members are rolling their eyes about the former Prime Minister. She said that,
“the Government are acting recklessly and irresponsibly, with no thought to the long-term impact on the United Kingdom’s standing in the world.”—[Official Report, 21 September 2020; Vol. 680, c. 668.]
That is what a former Prime Minister—the previous Prime Minister—of this country said.
Does the right hon. Gentleman accept that in fact, in the past, there have been substantial breaches of international law by Labour Governments as well as by other ones? Furthermore, does he believe that the Iraq war was lawful?
This is unprecedented in the following sense: the Government are coming along and breaking an international agreement they signed less than a year ago. I have heard the hon. Gentleman, and I have read the debates on the issue, and he certainly has not produced an example in any way remotely similar to what is happening in the Bill.
I want to develop my argument, because an important point has been understated in the debate since Second Reading. The clauses are not simply wrong, as so many hon. Members on both sides of the House recognise; they are not simply unnecessary, because the protocol has mechanisms to deal with the issues at hand; but there has been a notable event since Second Reading that has exposed the Government’s strategy even further, which is the cancellation of the Budget.
Let us recall the Government’s fig leaf designed to hide their embarrassment. The issue was at-risk goods travelling from Great Britain to Northern Ireland. The whole case made by the Prime Minister was that the Bill was necessary to prevent the blockade of goods from GB into NI. The threat was described as “extraordinary” and the very reason to break international law, but the measures, as we now know, to break the law in this Bill, do not, as he had to admit at Second Reading, deal with the issue of GB to NI trade.
The excuse was that GB to NI issues would be dealt with in the Finance Bill, as was explicit in the statement put out on 17 September by the Government, which said:
“Further measures will be set out in the Finance Bill, relating to tariffs on GB-NI movements, including the same Parliamentary process that the Government has committed to for the UKIM Bill.”
In case it escaped the House’s attention, the Budget has been cancelled and so has the Finance Bill. So where now is the mechanism to deal with the extraordinary threat that we face as a country? Can anyone on the Government side tell me where it is? The country faces an extraordinary threat that has to be dealt with, but the legislation we are considering does not cover it, nor does any legislation even in view.
I will give way to the Business Secretary if he would like to tell me how this will be dealt with. There is no answer—he would prefer not to. I do not blame the Business Secretary, because let us be clear what has happened here: the legislative hooligans in Downing Street who dreamed this up have moved on to something else, but the Bill is still with us, and so we are going through all this pain, all this grief, all this damage to our international reputation, and the central argument on which it is based is not even covered by any legislation.
What are we to conclude? Was this all a charade—a “dead cat” strategy, as I think it is known—to distract attention? Was it a trap designed to pretend that we were rerunning remain versus leave? Was it perhaps a Government strategy to pretend to their Back Benchers that the Government are willing to break the law in order to soften them up on accepting concessions in the endgame of the negotiations with the EU. Whatever the excuse, all of them reflect so badly on the Government.
We are at a grave national moment—our gravest for a generation, because of coronavirus. We are trying to conclude a Brexit deal, which is vital for our country. We need new trade deals, in which our word is our bond. Yet the Government play these appalling games, thinking so little of their Back Benchers that they think they can pull the wool over their eyes; willing to resile from a treaty that they signed, for a day’s headlines; playing fast and loose with the law for short-term gain.
The Bill will get its majority and go to the other place, but their lordships should know that, across this House, there is deep concern about it. That has been shown again and again by good people on both sides of the House in the last few weeks. I urge the other place to bring the Bill into compliance with the rule of law and salvage our reputation. But we in the House of Commons have a chance tonight to show our concern again. It is an indefensible Bill. It damages our country. It is wrong and self-defeating. I urge Members on all sides to oppose it tonight.
The right hon. Member for Ross, Skye and Lochaber (Ian Blackford) who has just spoken said he was going to push his amendment. I think he pushed the patience of this House to breaking point.
In the very few seconds I have left I will simply say, with regard to the speech by the right hon. Member for Doncaster North (Edward Miliband), that he completely failed to answer my question. The Labour party has, in fact, on a number of occasions broken international law. He knows it. He could not answer, and did not attempt to answer, whether he thought the Iraq war was lawful.
The bottom line is that the completely irrelevant questions raised in relation to breaches of international law are completely unfounded. The reality is that this country has on occasion in the past, in its own national interest for the sake of preserving its sovereignty and its economic sovereignty, had to occasionally break international obligations. There is no doubt about that, but equally and by the same token this Bill is about the sovereignty of the United Kingdom and preserving the economic sovereignty of the internal market and doing what it can to preserve the Union in all its character and territoriality. The right hon. Member for Doncaster North shakes his head, but the bottom line is that we have now got this Bill through. It has gone through with 100 votes time and again. That proves the point. This is the endorsement of the referendum. This is the endorsement of the manner in which the British people voted in the general election and that is the truth. We have won, and we will continue to pursue the independence of this country and to maintain its sovereignty.