United Kingdom Internal Market Bill

Lord Judge Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

Debate on whether Clause 42 should stand part of the Bill.

[Lord Judge (CB) [V]]

My Lords, it is only three weeks since an overwhelming majority of this House regretted Part 5 of the Bill. We regretted that the enactment of Part 5 would undermine the rule of law and damage our international reputation. It was a regret shared by members of all parties and none, and all political affiliations and none. Our procedures do not, however, permit us now to record that we are not content that Part 5 should stand part of the Bill. We must address the question clause by clause. I make it clear that at the end of the debate I intend to divide the House, if necessary, on every single clause in Part 5 to record what I hope will be an overwhelming majority view of the House: that we are not content.

Second Reading proceeded largely on the basis of the Government’s concession—maybe their confession—that the provisions in Part 5 breached international law. Clauses 44, 45, and 47, are not the only troublesome clauses. The Committee has not yet heard much criticism, but there is criticism to be directed about Clauses 42 and 43. I adhere to every criticism I made at Second Reading. It is very recent; I do not propose to repeat those criticisms. However, my concern about Part 5 is quite undiminished. Indeed, my criticism has been reinforced by attending the Committee stages of the earlier parts of the Bill, which highlighted the alarming extent of the secondary powers sought by the Government and utterly vindicated the criticisms of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.

However, for the purposes of today, my basic premise is that Part 5 should be seen as a whole, with each and every clause in it interlocking and related to each other. It is a complete, self-contained, cohesive whole: a programme, or a structure, on which Clause 42 is the starting point and foundation, and Clause 47 is the culmination. For a start: just because the clauses in Part 5 work together in the same structure, so they are all contaminated by the contamination of each of them.

However, this part goes further. It proposes that a Minister should be vested with unconditional power to disapply the Northern Ireland protocol. We have heard so much about this that I shall not go through what it amounts to—we all know. For example, the proposal does not require the Minister first to have tried the remedial provisions in the protocol or the withdrawal agreement; nor does it postpone any ministerial action until the negotiations with the European Union have broken down, or until such time as the Government wish to proceed on the basis that the EU has been acting in bad faith. It flies in the face of our binding agreement that we should refrain from any measures that could jeopardise the objectives of the withdrawal agreement.

It is striking that Part 5 stands separate from the rest of the Bill. The Bill addresses numerous fundamental questions relating to the UK internal market. It does so identically for Scotland, Wales, England and Northern Ireland. You cannot draw the slightest distinction between the ways in which the legislation applies to the four nations, save perhaps for Clause 11, which deals with the Northern Ireland protocol and, importantly, how market access throughout the United Kingdom arising from the application of the protocol should work. That, as I emphasised, is how the protocol is to be made to work. Beyond that, every single provision in the Bill applies equally, with all its flaws, to all four nations, and Northern Ireland is rightly included equally with the other nations in the arrangements for a strong, open internal UK market—that is, until we come to Part 5.

There is no Part 5 that applies to Scotland, Wales or England. There is no special protocol for any of them. Part 5 is expressly confined to Northern Ireland—it says so. Why the difference? Why are the other nations not blessed with their own Part 5? I suggest that there is a short answer: because Part 5 has the single purpose of enabling the Government, as and when they wish, to nullify their international obligations—and, what is more, to do so unilaterally, without recourse to the dispute resolution created in the protocol and the agreement. Surely that is why there is no equivalent provision for Scotland, Wales or England. However, whether that is the purpose of Part 5 or not, in law, that will be its result.

I suspect it will be suggested that Clauses 42 and 43—and perhaps Clause 46—require a different approach to Clauses 44, 45 and 47. One obvious distinction between them is that Clauses 42, 43 and 46 do not fall within the Government’s concession that the other clauses break international law. With respect, that approach is flawed. The clauses in Part 5 cannot be cast into self-contained silos. Clauses 44, 45 and 47 are integral to the whole of Part 5 and pollute all the clauses. Beyond that, merely because the Government have made no concessions about Clauses 42 and 43, it does not follow that they are far from reproach.

Clause 42 starts with aspirational objectives but then comes down to define its relevant purposes, which, first, include implementing the Northern Ireland protocol and, secondly, extend to

“otherwise dealing with matters arising out of, or related to”

the protocol. “Otherwise dealing” are weasel words; they can certainly be seen to contradict “implementing”. This provides power to dilute the protocol, of course. More important, perhaps, here comes the rub: the purposes, as Clause 42(2)(c) provides, include the movement of goods in a country or territory outside the United Kingdom—that is, not Scotland, Wales, England or Northern Ireland. That is not a provision for the UK internal market. If enacted, that function conflicts with the protocol. I respectfully suggest that Clause 42, at the very least, undermines it.

--- Later in debate ---

[Lord Judge (CB) [V]]

My Lords, it is getting rather late. There is a lot to cover. If I may, I will deal with it in sequence. I took the unusual step of seeking the view of the House at Second Reading in order that, if the House agreed with my submission, the Government could take their time, reflect on the result and come back with some counterproposals about how to deal with these clauses. We heard nothing.

I am asked to pay attention to the views expressed by, among others, the noble Baroness, Lady Hoey, and by other noble Lords from Northern Ireland. I have paid attention not only to their views, but to the expressed view of every single Member of this House. As I said during the last debate on these issues, I am grateful to those who disagree with me as well as to those who agree. Strong views are held; the debate is courteous and we have to make up our mind between different points of view. When I think of the problems in Northern Ireland and the views expressed by the noble Baroness, Lady Hoey, and others, I bear in mind that their real complaint is against what this Government did way back—about a year ago—when they thought it appropriate to enter into this protocol.

I also bear in mind the views expressed by others in Northern Ireland. The noble and right reverend Lord, Lord Eames, gave best voice to the principle of the view of peace. I am well aware of all the issues arising in Northern Ireland. I recognise that there are deeply held views and that differently held views are held on all sides.

As to the Bill, I rather thought that we had tried to identify, in Clauses 42 and 43, what the problem was. With regard to Clause 42, I have no quarrel with the expressions of aspiration in Clause 42(1) but, as I tried to explain to the Committee, the problem arises with Clause 42(2), where the relevant purpose is not only implementing but otherwise dealing, by regulation, with matters arising out of the Northern Ireland protocol. One of the other purposes was moving goods within the United Kingdom, including movement that involves movement in a country or territory outside the United Kingdom. That is not the internal market.

Clause 43, too, is aspirational: unfettered access to the UK internal market for Northern Ireland goods is aspirational. However, when you turn to how it is to be operated, you run into Clause 43(3)(b), which immediately links this provision to Clauses 44, 45 and 47. Those are unacceptable clauses: the majority of the House made it clear that they were unacceptable at Second Reading. I do not accept, therefore, that we have not looked at these clauses in some detail: we have.

With regard to Clauses 44, 45 and 47, I simply rely on the Government’s own position—which is, quite rightly, that of the Minister, a man of integrity who has not sought to defend them against being in breach of international law. I will say no more about these clauses. We have gone over and over them.

The problem with Clause 46, if it were to stand alone, is simply that it reflects one provision in a whole part of the Bill, and it would be extraordinary for it to stand alone. I hope to persuade the Committee—I hope we have persuaded the Committee—that we should now proceed to deal with it.

I have been asked many other questions. As far as the fundamental problems relating to treaties are concerned, we must consider this as a matter of reality and assess whether we would want to break treaties in circumstances that did not fall within the permissive provisions of the Vienna convention. Do we just tear up treaties without reason? If we have a reason, we have a reason that would probably fall within the Vienna convention.

My other point is that suggestions that this is all lawyerly are deeply offensive. I happen to be a lawyer, but the rule of law is perfectly well understood by everyone—not just lawyers, but doctors, Indian chiefs, warriors, anyone you like. The rule of law is something to which every country and every citizen of every country has a passionate commitment. The rule of law has come to us, in this generation, as a very precious heritage that we owe to our fathers and grandfathers, and to much blood being shed. We have to pass on that principle, untarnished and unlimited, to our children and their children, so that it continues to be a salient, wonderful principle of this country—one that we can all espouse and aspire to and one that protects the weak against the strong, the vulnerable against the powerful, and, most important of all, the weak, the strong, the vulnerable and the powerful against overmuch incursion by the authorities of the state.

This Bill is riddled with powers being given by way of regulation, which are far, far from acceptable. If the crisis that could happen were to happen, there would be no reason whatever why the Minister or Government could not start again. They could come back with reasons why they need their legislation—legislation which complies with the basic principles of our constitution. I see no reason whatever to withdraw the indication I gave at the beginning of the debate that there should be a Division. I start with Clause 42.