United Kingdom Internal Market Bill

Lord Judge Excerpts

2nd reading & 2nd reading (Hansard)
Tuesday 20th October 2020 Lords Chamber

Amendment moved on Monday 19 October by

[Lord Judge]

At end to insert “but that this House regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.

Relevant documents: 14th Report from the EU Select Committee, 24th and 26th Reports from the Delegated Powers Committee, 17th Report from the Constitution Committee.

[Lord Fox (LD)]

My Lords, yesterday we heard some remarkable speeches, not least from the two debutants: the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz. Over eight hours we heard the Bill broken down into three areas of serious concern: its illegality, its threat to the union, and its structural limitations. The analysis of the noble and learned Lord, Lord Judge, backed up by many other legal Peers, was clear: this Bill establishes a position whereby the United Kingdom breaks international law.

The counterarguments were less numerous, and they were weak. On the one hand, they said that this is an anti-Brexit rearguard action—something easily dismissed by taking note of the powerful speeches of the noble Lords, Lord Howard of Lympne and Lord Lamont of Lerwick, neither of whom is publicly gripped by pro-EU sentiment. The other line taken was that because other countries have broken the law, we can too. It is the cry of the playground: “They started it!” My noble friend Lord Thomas and others demonstrated that that argument is neither here nor there.

This Bill transcends legal affront—and here we should thank the most reverend Primate the Archbishop of Canterbury, who, in his speech, set out a moral case against this part of the Bill. As he put it:

“Our reputation as a nation, our profoundly good and powerful influence and example … will suffer great harm if law-breaking is pursued”.—[Official Report, 19/10/20; cols. 1293-4.]


That point was backed up by the noble and gallant Lord, Lord Stirrup:

“The Government exercise authority through the law; if they undermine respect for the law, they undermine both themselves and the stability of our society”.—[Official Report, 19/10/20; col. 1348.]


It is fair to say that the noble and gallant Lord knows a thing or two about the importance of moral courage.

This is not an academic argument. If we needed to be reminded how this Bill can affect the lives of people on the island of Ireland, my noble friend Lord Alderdice, speaking from his vast experience, set out what is at stake, and as my noble friend Lady Suttie said:

“The Northern Ireland protocol, which is far from perfect, is none the less a carefully constructed compromise to try to maintain peace and stability on the island of Ireland and to protect the Good Friday/Belfast agreement”.—[Official Report, 19/10/20; col. 1315.]


Quite.

Among yesterday’s speeches came a quite remarkable intervention from the noble Lord, Lord Barwell—a man with a unique window on this process. He recalled how, in a meeting with EU officials, Theresa May asked why the Northern Ireland backstop had to be set out in such operational detail. She was told:

“‘Because, bluntly, we do not think you will be there for much longer and we do not trust what is going to follow in terms of living up to any commitments’”.—[Official Report, 19/10/20; col. 1359.]


So, far from sending the EU a stern message about the UK’s resolve, the Bill simply confirms its suspicions about our trustworthiness—or rather, our lack of it.

Moving on to devolution, the noble Lord, Lord Callanan, asserted:

“These powers are not designed to take powers from the devolved Administrations”.—[Official Report, 19/10/20; col. 1284.]


My noble and learned friend Lord Wallace of Tankerness and my noble friends Lord Bruce of Bennachie and Lord German and others made it clear that the reality is something quite different. The Bill pulls back power to Westminster at the expense of the devolution settlement. Many Peers, such as my noble friend Lady Humphreys, pointed to the glaring absence of any reference to the common framework in the Bill.

For its part, the Constitution Committee is not convinced that opportunities for managing the UK internal market through the common framework process have been exhausted—and neither am I. By abstracting the internal market from these frameworks and pushing ahead unilaterally against opposition from devolved authorities, the UK Government are putting the common frameworks at risk. I have to ask: is that what Her Majesty’s Government want? That is what it looks like.

In light of progress being made with the common frameworks, my noble friend Lord Newby questioned, with considerable support, whether the Bill is needed at all. However, in his speech, the noble Lord, Lord Callanan, claimed:

“Without the Bill a Welsh lamb producer … could end up unable to sell their lamb as easily … Scotch whisky producers could lose access to supply from English barley farmers”.—[Official Report, 19/10/20; col. 1282.]


My noble friend Lord Purvis asked some specific questions regarding whisky. I would like to ask: what possible grounds are there to support the Welsh lamb claim?

Further, the noble Lord, Lord Callanan, also said that the Bill

“will allow professionals such as doctors and nurses, qualified in one of the UK nations, to work in any other”.—[Official Report, 19/10/20; col. 1283.]

If by this the Minister is saying that, without the Bill, English doctors will not be able to practise in Wales, I challenge him; if not, what is he saying? I think these comments are entirely baseless and I ask the noble Lord, Lord True, either to demonstrate that they are rooted in fact or to withdraw them.

The third element of the Bill is the role of the CMA as the home for an office for the internal market. As ever, I listened to my noble friend Lady Bowles on such issues. The Committee stage will see significant debate on this.

It will come as no surprise that noble Lords on these Benches will support the amendment in the name of the noble and learned Lord, Lord Judge, but as my noble friend Lord Newby made clear, it cannot stop there. This was backed by a strident call to arms from the noble Lord, Lord Butler. He and others made it clear that your Lordships have to be prepared to stand by the splendid speeches that we heard yesterday when we get to the sharp end of this Bill. In that regard, your Lordships’ House should be indebted to my noble friend Lord McNally for outlining the outcome of the Cunningham conventions. As he explained, we should not be inhibited in standing up to the Government.

The conclusions that I draw from yesterday’s debate are: the illegality of this Bill must be removed; Clauses 44, 45 and 47 should be excised and the Henry VIII clauses removed; the role of the common frameworks as the prime mover in a single market must be reinstated; and consensus must be sought on the principles of the Bill where the market is managed and disputes are dealt with. Finally, if there needs to be an office for the internal market, it needs a different governance structure from that proposed.

We all know that this Bill is illegal, flouts important constitutional issues and threatens devolution. More than that, we know that it has already eroded trust in our institutions and is damaging the reputation of this country, which promotes the rule of law. Finally, and perhaps most insidiously, we know that any law that seeks to permit the Executive to break laws is morally wrong.

--- Later in debate ---

[Lord Judge (CB) [V]]

My Lords, I thank everybody who has taken part in this debate, including those who disagree with me. I welcome the noble Lord, Lord Sarfraz, and particularly the noble Baroness, Lady Hayman—I am sure the noble Lord will not be upset with me if I say that it is an absolute delight to know that there are now three Members of your Lordships’ House who support Leicester City Football Club.

The debate has reinforced my anxiety about the Bill. If it is enacted, we shall be giving the Executive the most extraordinarily wide powers, and until the debate I had not fully appreciated the dangers to the union of giving the Executive in London effectively uncontrolled power over the way in which the internal market will work. That reinforces my anxiety. I wish to make just a couple of points.

I notice that the Minister has not resiled from the proposition which some of those who support him were keen to advance: that the Bill, if enacted, would not break international law or break the law. That it would not break the law seems a crucial element in this. The fact of the matter is that the law would be broken. The Minister in the other place said so; the Treasury Solicitor resigned; and the noble and learned Lord, Lord Keen, resigned. There can be no getting away from it, and, to be fair, the Minister in our House has not sought to do so. That is the starting point.

I then listened to a number of arguments suggesting that the Government are entirely justified anyway because the EU has been acting in bad faith. Although the Minister did not use those words, he just touched upon it by referring to the way in which the negotiations had broken down and to the Prime Minister describing how the EU was refusing to negotiate. If any of that has force, the remedies are there to be found within the Act, the agreement, the protocol and within the ordinary rules which govern international treaties where one side is breaking the purpose and spirit of the agreement. That is the remedy that should be sought if there is indeed bad faith by the EU.

I expect the negotiations to be tough—that is the whole point of them. I hope that our negotiators are being tough—that is what they are there for. That is a very far distant cry from bad faith. No evidence of that has so far been shown to any of the committees which examined these issues; indeed, apart from the most recent observation by the Minister before us today, there is no evidence. Therefore, we are dealing with a hypothetical situation, which is: “We may need these powers at some stage.” Maybe we will; I hope not. If we do, it is perfectly open to the Government to come back to us, to Parliament, to put before us emergency legislation and for both Houses to sit as long and as late as necessary to examine the proposals, and, if they are satisfactory, to endorse them.

I shall not go through the arguments that were deployed before your Lordships’ House yesterday. I add merely that you do not have to be a lawyer to understand the rule of law, and you certainly do not have to be a lawyer to understand when you are giving powers away. That is what the Bill will do. You do not have to be a lawyer to understand the reputational damage to the United Kingdom. That is what this situation will do. We cannot resile from the fact that we are breaking the law if the Bill is enacted. That is what the Government say. That is why, while I quite understand the Minister’s anxiety about the future and I share his concern about it, I will seek the views of this House.

Just before I finish, I thank the Minister for his courtesy and good wishes.

I seek the opinion of the House.