United Kingdom Internal Market Bill

Alistair Carmichael Excerpts

Monday 21st September 2020 Commons Chamber

[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.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Will the Minister give way?

[Mr Walker]

Not right now—I will come back to the right hon. Gentleman.

Amendments 64 and 65, in the name of my right hon. Friend the Business Secretary, make it clear that any regulations made under clauses 42 or 43 would, of course, be subject to judicial review, contrary to some of the claims that have been made over recent weeks, while ensuring that any claims must be brought within a three-month period. That ensures that any challenge to the regulations will be subject to a timely resolution before the courts, which is essential to ensure that Northern Ireland businesses and investors in Northern Ireland have the certainty that they need, which is at the heart of the Bill. I commend those amendments to the House. As they clarify the position on judicial review, amendment 44 is not necessary.

Amendments 61 to 63, in the name of my right hon. Friend the Business Secretary, are targeted technical amendments to ensure that the Government are able to maintain the integrity of the UK’s VAT and excise systems and can deal with any threats to biosecurity in Great Britain in response to changes required in Northern Ireland under the protocol.

In particular, the amendments ensure that the Government can act to address cases of double taxation and non-taxation created by the Northern Ireland protocol, as well as to close down opportunities for tax evasion.

The amendments will also ensure that both the UK Government and the devolved Administrations can continue, as they do now, to respond to specific biosecurity threats arising from the movement of animals and high-risk plants. The principle of facilitating actions to protect biosecurity on an ongoing basis between England, Scotland and Wales is already reflected in schedule 1 to the Bill. The amendments simply clarify that similar processes can also apply with regard to Northern Ireland where there is a genuine risk of a biosecurity threat that poses a serious threat to the health of humans, animals or plants.

I commend those amendments to the Committee.

[Mr Carmichael]

May I take the Minister back to the undertaking that he gave to his hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill)? Some of us have some misgivings about that undertaking, because this Government have shown an exceptional fondness for withdrawing the Whip from those in their own party who disagree with them. In the circumstances of the parliamentary lock being necessary, can we get an assurance from the Treasury Bench at some point in this debate that any such vote will be a free vote?

[Mr Walker]

The right hon. Gentleman should know better, with his extensive experience, than to ask me to comment on whipping matters.

Several of the amendments in this group seek to unpick, either implicitly or explicitly, the safety-net measures set out in the Bill.

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[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.

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[David Warburton (Somerton and Frome) (Con)]

It is a great pleasure to contribute to a debate with such significant implications. I will be brief; I reckon I can be the first person to break precedent and stick within five minutes, because I know an enormous number of colleagues want to speak.

The Bill really is crucial in maintaining the integrity and the smooth operation of the UK’s internal market, and ensuring that they are underpinned by the principle of non-discrimination across the four constituent parts of our Union. I will focus on clause 45 and its constitutional ramifications, because the question that has been engrossing the Committee, and the public, is that of the notwith- standing powers and their potential breach of international law.

Even a potential breach of international law is to be treated with the utmost seriousness, but to suggest, as some have, that the provisions of the Bill place us in some sort of moral equivalence with China or Russia really is risible. Degree and proportion matter. Clause 45, as I hope it will be amended by amendment 66, equips democratically elected Members of this House to decide whether or not to protect the powers outlined in clauses 42 and 43 in the case of need. Should this House decide to, it would mitigate the risk of the UK’s internal market splintering, with all the potential consequences that would flow from that.

There is no equivalence there, and I do not believe that the Bill is symptomatic of some kind of collapse of British support for a rules-based international order. We have heard a lot of this before, but I must say that I do not remember the same level of outrage bursting forth when Germany or France violated treaty obligations on deficit and debt levels, when Canada broke international law to legalise cannabis, or in the Kadi and Barakaat case, which my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) mentioned, when the European Court of Justice ruled that the EU should ignore the UN charter—the highest source of international law—if it conflicted with the EU’s internal constitutional order. The ECJ then said:

“A treaty can never enjoy primacy over provisions…that form part of the constitutional foundations of the union.”

That cuts to the heart of the issue. When treaty obligations threatened to damage the constitutional coherence of the EU, it felt not only free but obligated to disregard them.

That is not to say, of course, that anyone should contemplate the EU using such powers lightly, but if, and only if, a situation arose where the movement of goods between Northern Ireland and the rest of the UK was hampered and access to our internal markets was fettered, not only would it be essential but surely we, too, would be obliged to have powers in place to meet such a contingency. Like the EU, the UK has a Union to protect, and it is absolutely right that it equips itself to do so through the clauses we are currently considering. That is why I cannot support Opposition amendments that seek to de-fang clause 45.

I pay tribute to the hard work of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) and my right hon. Friend the Member for Ashford (Damian Green), and I am reassured by Government amendment 66 that the exercise of these powers will require parliamentary approval. As I said, even a limited breach of international law is a serious matter and it is right that colleagues from across the House will have the opportunity to exercise their judgment in that respect. Of course, no one wants to see Ministers forced to come to this House seeking approval to use these powers, not least because that would suggest that the attempts of the EU and the UK to agree a trade deal had stalled or failed altogether.

Finally, it is worth restating that of course a trade deal is in the best interests of the EU and the UK, but if all efforts to secure such a deal fail and the EU then acts on its threat to damage the UK, it is essential that we have the necessary tools to protect our national coherence and the economic framework on which that depends.

[Mr Alistair Carmichael]

I am sure, Dame Rosie, that over the years, you and I have both sat through many debates where it was obvious eventually that everything had been said but that not yet everybody had said it. I fear that we may be into that territory today, but uniquely, I think we got to that point after the first contribution from a Back Bencher. The contribution from the right hon. Member for Maidenhead (Mrs May) was quite one of the most remarkable and clinical deconstructions of the Government’s argument that it was possible to imagine. She spoke with total conviction and clarity, which together were absolutely irresistible. In fact, I think it is worth recording for the benefit of Hansard that no one on the Treasury Bench did resist her. The Minister and the Secretary of State could have intervened and sought to put her right if they thought they were able to do so, but of course they did not. They sat there and squirmed, and it was a joy for many Opposition Members to watch. It took me back to another similar moment in March 2003, when the late Robin Cook delivered his resignation statement from the Government Back Benches. Again, there was the same conviction and clarity delivered at a moment of existential significance and in relation to a matter that will inevitably bring this country into conflict with the rule of law.

It is worth recalling why we have a protocol to the withdrawal agreement in the first place. It is essentially as a result of the Prime Minister’s determination to remove us from the customs union. The right hon. Member for Maidenhead understood that, and when she sought to negotiate the withdrawal agreement, she came forward with the backstop. It was that backstop that the now Prime Minister resigned over, eventually, and then proceeded to stick pins into the right hon. Lady until she too could stand it no longer. He eventually took her place, at which point he renegotiated the withdrawal agreement with the protocol attached to it. The essence of that renegotiation, of which he has boasted so many times since, was rooted in that backstop.

Tonight was always going to come, because the Government and the Prime Minister have insisted all along that they could do three things when at best they could only ever do two. They told us that they could leave the customs union, that they could avoid the placing of a hard border on the mainland of Ireland, and that they could avoid a border down the Irish sea. Once we come out of the customs union, we can only do one or other; we cannot do them both. And what we have seen tonight is these chickens coming home to roost. Goodness only knows they were warned often enough.