United Kingdom Internal Market Bill

William Cash Excerpts

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

[Edward Miliband]

The hon. Gentleman says that that is completely untrue. I hope it is true, in the following sense: unless we remove the provisions in the Bill on lawbreaking and amend the provisions on devolution, we are massively undermining the Union, because as I will explain, we are departing from the principles of shared governance that we have developed over 20 years.

It is not surprising that the Government top brass are running from this Bill. Has it succeeded in improving our international standing? No—it has been calamitous, embarrassing and toxic for our international reputation. President-elect Biden, among others, is deeply concerned about the Bill. Has it succeeded in upholding and strengthening the United Kingdom, which I know the hon. Member for West Aberdeenshire and Kincardine (Andrew Bowie) supports? No, it has not—it has given a stick with which those who want to undermine the United Kingdom can beat the Government.

Has the Bill succeeded in getting the Brexit deal that the Government told us it would hasten? Remember what they said—that it would show we were standing up to the EU, show that we meant business and face them down. This is a very important day to be talking about this issue. Where is the deal then, less than a month before the end of the transition period? Where is the deal? As a country, we desperately need a deal for business, workers and our economy. It is 12 weeks since this piece of legislation had its Second Reading and still no deal has been struck. And on this of all days the Government choose to bring this Bill back to the House. Our message to the Government is simple: deliver the deal that they said was oven-ready so that business can plan, even in these short weeks. Deliver what was promised.

Let me turn to the detail of the Lords amendments from the Opposition point of view. I start by going back to the issue of the rule of law. As I said, Members across all parties in the other place worked together to defeat the Government on part 5 of the Bill. I cannot do any better than Lord Howard—I have never said that before—who said:

“I do not want”

the UK

“to be an independent sovereign state that chooses as one of the first assertions of that sovereignty to break its word, to break the law and to renege on a treaty that it signed barely a year ago.”—[Official Report, House of Lords, 19 October 2020; Vol. 806, c. 1295.]

That is not some remoaner, as I think the saying goes—it is not some person who voted remain; it is Lord Howard, a Brexiteer and the former leader of the Conservative party.

The House could instead listen to Lord Cormack, who said

“this is shameful; there is no other word for it. I am deeply ashamed that a Conservative Government should have embarked on this course.”—[Official Report, House of Lords, 19 October 2020; Vol. 806, c. 1301.]

I am proud to be defending the rule of law.

[Sir William Cash (Stone) (Con)]

Would the right hon. Gentleman be kind enough to give way on that point?

[Edward Miliband]

It is always a pleasure to give way to the hon. Gentleman, so I shall.

[Sir William Cash]

Perhaps the right hon. Gentleman recalls the fact that section 38 of the European Union (Withdrawal Agreement) Act 2020 was passed not only by the House of Commons—by 120 votes—but by the House of Lords itself. That contained the same principle regarding the notwithstanding arrangements specifically in relation to section 7A of the European Union (Withdrawal) Act 2018.

[Edward Miliband]

I think the hon. Gentleman and I have had this exchange before. The fact is that the reason this Bill has caused such concern—among five former Prime Ministers and all the people in the House of Lords I have mentioned—is that it will rip up a treaty that we signed. That message has been sent loud and clear around the world. As I said, there is already provision in article 16 of the protocol for unilateral action in the event of

“serious economic, societal or environmental difficulties”.

The provisions are not only wrong, then, but unnecessary.

I wish to deal with the “insurance policy” argument that has been put forward—the Minister used the term “safety net”. This legislation is not a safety net or an insurance policy; it is a trapdoor for us, and I will tell him why. Let us say that the worst happens and we fail to get a deal, and we then trigger these provisions. What then? We set off an escalating dispute with the EU, and we do not know where that dispute ends; we further alienate President-elect Biden and scupper any chances of a US trade deal; and we destabilise the politics of Northern Ireland. This is no insurance policy; it is a guarantee of the destabilisation of our country piled on to no deal—in other words, the very last thing the country needs. That is why we will vote to uphold the Lords amendments that keep part 5 out of the Bill.

--- Later in debate ---

[Madam Deputy Speaker (Dame Eleanor Laing)]

We will now have a time limit of five minutes.

[Sir William Cash]

When I read the account of proceedings in the House of Lords, I found that the Lords were very strong on assertion, but empty when it came to the question of argument. I found that rather disturbing, because, after all, they have potential power under the Parliament Acts. I also appreciate that, towards the end of the proceedings, in reference to the powers in part 5 of the Bill, and the clauses under discussion regarding “notwithstanding”, Lord Judge said:

“‘We may need these powers at some stage’. Maybe we will; I hope not.”

He then said that it would be

“open to the Government to come back to us, to Parliament, to put before us emergency legislation.” —[Official Report, House of Lords, 20 October 2020; Vol. 806, c. 1431.]

The circumstances that we face could not be more important and relevant, and my view is that what he said effectively conceded the principle.

[Sir Bernard Jenkin]

I was going to make exactly that point. Lord Judge, very respected as he is, basically conceded the principle that we might need “notwithstanding” provisions to overturn the provisions in the withdrawal agreement. We are not talking about the principle anymore; we are just talking about when it would be appropriate to introduce the provisions. They might as well be introduced now with the parliamentary safeguard that the Government have conceded.

[Sir William Cash]

More or less the same took place in my exchanges with my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who said very much the same. There is a threshold beyond which it would be necessary for us to take such action. Without going into the detail, I just wanted to put those two things on the record.

The issue is, and basically always has been, about parliamentary sovereignty. In the UK context, this is an internal law of fundamental importance, as expressed in article 46 of the Vienna Convention. It is by virtue of parliamentary sovereignty that we have taken the line that we have. I certainly have taken that line on many occasions, including in my proposal for section 38 of the European Union (Withdrawal Agreement) Act 2020, which I referred to earlier, and which has the whole concept of “notwithstanding” built into it. Section 7A of that Act also deals with direct effect. Given that the Act was passed with a large majority in the House of Commons, and then passed again in the House of Lords without any dissent of any description, I find it quite extraordinary that this has been turned into a matter of such fundamental anxiety, without any supporting argument that I have ever seen.

When I read the debates, I found there was a great deal of posturing going on. I understand the emotional concern of some people who are quite incapable of accepting that we have lawfully left the European Union; that a series of enactments were passed by both Houses; and that, on top of that, we had a general election—not to mention that under the Salisbury-Addison convention, it would be inconceivable, in the context of a general election manifesto, for the Lords to take a stand against these clauses if the House of Commons passed them again tonight, and perhaps again on another occasion.

Why do I say all this about constitutional and international law? I will deal with that very briefly. First, in my judgment, the European Union has breached article 184 of the withdrawal agreement, which is about negotiating in good faith. It has manifestly multiplied that fault over the past few days by refusing to accept the manner in which the negotiations have been conducted so far. There is also the question of its demand to retain power over crucial aspects of our sovereignty—both economic and relating to our national interest—as a precondition to concessions on trade.

The EU has also, in my judgment, breached article 184 on the basis of the recognition, as it puts it, of our internal market. I believe in the basic principle that one party to a treaty cannot obtain from the other the execution of its obligations if it does not respect its own commitments. If the EU continues to act as it has done in the negotiations, particularly over the past few days, the United Kingdom would be entitled to terminate the withdrawal agreement on the basis of the EU’s breach of article 184.

Lastly, as I said in Committee and on Report, there is a long list of occasions when Conservatives, Labour and Lib Dems, as part of the coalition, have agreed to override treaties. There are not just one or two quite explicit examples, but hosts of them. In infinite Finance Bills and Independence Acts, and in relation to prisoner voting and various other things, there have been quite clear and deliberate overrides of treaties. The EU, as well as the EU member states, frequently violates international law; the Western Sahara case, the defiance of security council rulings, and breaking the Lisbon treaty are a few examples.

Indeed, in conclusion, the EU grants supremacy to its own constitutional principles when they are in conflict with international law. In the Kadi case, the European Court stated:

“The obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the…Treaty”.

So there it is. I say again that I strongly support the Government’s position, and reject the amendments by the House of Lords.

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)]

In. Out. Reinstate? As the right hon. Member for Doncaster North (Edward Miliband) has pointed out, the Prime Minister and the Secretary of State have dropped this, and it is left to the Minister to hold Dominic Cummings’s baby, and to front this up in Parliament. I almost feel sorry for him, but then I remember that both the Treasury solicitor and the Advocate General for Scotland have already resigned over this, because it is such a terrible move by the Government.

The House of Lords, as we have heard, has rightly carved up this disastrous, petty, grubby, law-breaking, power-grabbing Tory Bill—and after the announcement made just an hour before we came in here tonight, we can add “shambolic” to that as well. We welcome the Lords’ removing a number of threats to devolution from the Bill. We already know that the Tories hate devolution, as the Prime Minister has made clear.

Clause 42 authorises the UK Government to spend on devolved areas. The UK Government intend to use clause 42 for the purpose of a shared prosperity fund. However, as we have heard, we have yet to see details of that. I personally have been asking about it since 2017, yet we have heard nothing on it. As we have heard, we have also yet to see any sign of the long-promised consultation. It has been repeated over and over that there will be a consultation, but we have not seen it. Lord Thomas confirmed in the other place:

“It is therefore plain that the purpose of Clause 42 is to cut across the powers of the devolved Governments to provide financial assistance in areas such as economic development and commercial activities”.—[Official Report, House of Lords, 25 November 2020; Vol. 808, c. 276.]

That takes away a power from the Scottish Parliament. Baroness Finlay said that

“Clause 42 would enable the Government to work around, rather than work with, the devolved Governments”.—[Official Report, House of Lords, 25 November 2020; Vol. 808, c. 280.]