United Kingdom Internal Market Bill

Lord McNicol of West Kilbride Excerpts

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

[Lord Dubs (Lab) [V]]

My Lords, I am also a member of the Joint Committee on Human Rights and I support what my noble friend Lady Massey said in putting forward the committee’s views and concerns. The noble and learned Lord, Lord Judge, spoke for me—and for virtually the whole Committee—in his opening speech. I think I agree with every contribution made so far, so I shall be brief.

On the front of the Bill, under the heading “European Convention on Human Rights”, it says:

“Lord Callanan has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the United Kingdom Internal Market Bill are compatible with the Convention rights.”


Every Minister has to certify a Bill’s compatibility with the human rights convention.

The courts cannot strike down primary legislation but can make only a declaration of incompatibility. However, secondary legislation is different; the courts can strike it down if it is incompatible with the rights guaranteed by the European Convention on Human Rights. Why is there a difference? I believe that it is because, while primary legislation can be and is fully debated and amendable by both Houses, in contrast secondary legislation inevitably has a less thorough process of parliamentary scrutiny. That is why these amendments are so crucial. Clause 47(3) would require the regulations under Clauses 44(1) and 45(1) to be treated as primary legislation under the Human Rights Act. That would, therefore, prevent the courts striking them down if they were found to be incompatible with human rights.

The Joint Committee on Human Rights concluded:

“The Committee does not consider that it is constitutionally acceptable for ordinary delegated legislation to be treated for the purposes of the Human Rights Act as if it were primary legislation passed by Parliament.”


The Constitution Committee of this House echoed that point. It was

“concerned that clause 47 seeks to alter the scheme provided in the HRA without wider consideration of its constitutional implications and compliance with the UK’s international obligations under the Convention.”

I know that the Government have occasionally said that they do not like the Human Rights Act, but we should not seek to undermine it by a back-door approach. We surely need a proper debate on the Act, not to have something slipped in in this way.

I shall certainly vote against the Government on all the amendments to Part 5, but I draw particular attention to this, in the hope that the Government will never again try to use such a tactic to undermine the Human Rights Act.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

The noble Lord, Lord Singh, has withdrawn. I call the noble Lord, Lord Dodds of Duncairn.

[Lord Dodds of Duncairn (DUP)]

My Lords, we are in the position of Part 5 having to be brought forward because of the contents of the Northern Ireland protocol. We find ourselves in a very unfortunate position. Unionists in Northern Ireland do not find much comfort in some of the clauses in Part 5, particularly the clauses about preventing reach back in relation to the application of state aid rules for Great Britain but nevertheless allowing Northern Ireland to be subject to EU state aid rules, which could cause considerable problems going forward for the competitive position of businesses in Northern Ireland with businesses in the rest of the United Kingdom.

The protocol is at the root of the problem. The noble Lord, Lord Empey, referred to this. The protocol was opposed by us on these Benches because it differentiated between Northern Ireland and the rest of the United Kingdom as we left the European Union and we were always promised that we would leave as one United Kingdom. I have to correct the noble Lord on one thing: he has today and on previous occasions sought to lay some responsibility for this sad situation at the feet of the DUP. Of course, he will know that on 2 October last year—it is worth correcting the record since the assertion has been made—when the Prime Minister sent his proposals to Jean-Claude Juncker, one of the five principles, the elements that the Prime Minister set out, was that any potential all-Ireland regulatory zone on the island of Ireland could happen only if the Northern Ireland Executive and Assembly had the opportunity to endorse those arrangements before they entered into force and every four years afterwards. If consent was not secured, the arrangements would lapse, and it was on that basis, with the security of a lock in the Northern Ireland Assembly, as was agreed in the joint report of the EU and the United Kingdom of December 2017, that we gave a cautious welcome. When the Prime Minister jettisoned that democratic consent principle—and the Government have indeed jettisoned the principle of giving the Northern Ireland Assembly and Executive the right to say that this should come into force in Northern Ireland—we made it clear that we would not support the Government in that. I think it is important to correct the record and lay the responsibility where it truly lies.

On Clauses 43 and 44, we have heard many eloquent speeches tonight, but I speak as one who represented the city of Belfast for more than 35 years. It is a very diverse constituency. Whether a business is owned or run by someone from a unionist family or a nationalist family or indeed of no particular political persuasion, they are all interested in trying to make their company work, be prosperous, employ people and contribute to the economy. They are all united on the fact that it would be disastrous to have checks between Northern Ireland and the rest of the United Kingdom to fetter trade unnecessarily as they would add to costs. More than £8 billion-worth of trade goes from Northern Ireland to Great Britain and from Great Britain to Northern Ireland every year. This is an immense amount of trade. Almost 60% of all trade in Northern Ireland is done with the rest of the United Kingdom.

We talk about grand philosophical and legal principles, and I understand all that, but this is not a unique situation for any country to find itself in. To hear some noble Lords, one would think that this is the only country that has ever decided to step away from an international obligation in the interests of its own sovereignty, its own interests and the interests of its citizens. That is not the case by far. None of that has been referenced, although to go to into all that is perhaps more appropriate for a Second Reading speech than the debate on these clauses. However, it is important to remember the reality of the economic position that many companies in Northern Ireland and the people who are employed by those companies will find themselves in if sensible arrangements are not made to recognise that Northern Ireland is a full member of the customs union of the United Kingdom.

We must remember that the Government and the EU made commitments in this regard. I referred earlier to the joint report agreed between the United Kingdom Government and the EU back in December 2017, which allowed the negotiations to move on to the next stage at that point. Paragraph 50, which the EU agreed to, states:

“In the absence of agreed solutions … the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless”—


this is the point I made earlier—

“consistent with the 1998 Agreement”—

they would uphold the agreement, so let us listen carefully—

“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances”—

it is important for noble Lords to remember this—

“the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”