United Kingdom Internal Market Bill

William Cash Excerpts

Consideration of Lords amendments
Wednesday 16th December 2020 Commons Chamber

We accept the improvements to date, but we note that they start from a very bad starting point. Some might describe them, as we say up north, as trying to polish a turd.

[Sir William Cash (Stone) (Con)]

I was very taken by the reference the hon. Member for Manchester Central (Lucy Powell) made to improvement. Having looked at the Bill and followed it over the last few weeks, I find it difficult to call it an improvement.

However, I want to pay tribute to the Public Bill Office. Given the amendments, and the contortions the Public Bill Office has had to absorb in looking at the Reasons Committee’s consideration of these issues and at the question of what insistence on disagreement or agreement is at a particular point in time before it comes from one House to the other and goes back again, this has been an incredible exercise in complexity—so much so that it would be asking an awful lot to expect anybody, including the Minister, to be able to claim that they really understand what it is that has ultimately arrived. I was going to ask him if he would like to explain exactly what all this means. We will only find out in due course.

I was looking at the reasons for disagreeing only yesterday, and they were very clear. One said that the Government disagreed with the Lords over the question of legal certainty and disruption to business. Suddenly, almost at the wave of a magic wand, all of that has completely evaporated into thin air, and we have ended up with this extremely contorted, extremely confusing and ambiguous series of statements. However, at the heart of it, there is one point that I want to put to the Minister. Does he recall the famous Schleswig-Holstein question? Only three people comprehended what was going on, or they had originally, but unfortunately one had forgotten, one had died and the other had gone mad. [Interruption.] I am not going to attribute any one of those to the Minister. However, right at the heart of this, a lot of very complicated drafting has been put in to try to salvage some face. As I read it, the Secretary of State can make these regulations but—this goes to the heart of it—that process would be subject to the affirmative resolution under clause 10(2), which is mirrored in clause 17. It strikes me that there is one fundamental question: can the Minister effectively veto matters that have been discussed and consulted on with the devolved Administration? If the regulations are subject to the affirmative resolution, it seems that may well turn out to be the case. Who knows? I do not know at the moment, and only when the process reaches its conclusion will we know whether the reserved powers in the Scotland Act 1998 will bite. I cannot be sure of that. I have a feeling that this may end up in the courts, and perhaps the situation will be made clearer. We are at the end of the line for this Bill, and I regard the whole thing as being difficult to plot in terms of a clear path to any conclusion.

[Jonathan Edwards]

In the 10 years that I have been in this place, I think this is the first time that I have agreed with the hon. Gentleman on a substantial point. The concession last night in the Lords opens up a number of new questions, and there needs to be a well thought out process regarding how the common frameworks will work, where power will reside within the frameworks, and who has the power to create them. I would like a far more consensual approach than we have seen today.

[Sir William Cash]

I am glad to hear that. I am not sure—we cannot be sure—whether these provisions might eventually be declared void for uncertainty, and I am not clear about what they will do in practice. At least, however, we have got to the end of the Bill. I am in favour of the Bill in principle, and that is about all I need to say for the moment. As far as I am concerned, the future lies ahead with uncertainty built into these provisions.

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

Any improvement to the Bill would be welcomed, but the proposed amendment does nothing to protect the devolution settlement—the Minister said as much in his opening remarks—and the provisions will simply allow this Parliament to overrule Scottish Parliament and Welsh Parliament decisions. It is incredible to hear Labour Front Benchers trying to take credit. They say that they led the way, but they have actually paved the way for this Bill to do that to the Scottish Parliament. They talk about the guile they have shown, but it is gall that they have when they talk about this. You can understand, Madam Deputy Speaker, why Labour has only one MP in Scotland.

Instead of taking this Bill apart, as they should have done, those on the Labour Front Bench spend more of their time talking about the democratically elected Members of Parliament that they have here, who, as I pointed out, are in vastly greater numbers than the one Labour MP from Scotland. They are not listening to Scotland—they never do—and Labour has allowed this aberration to come forward in this way by abstaining in the House of Lords.

The amendment does not protect devolution, as I said: the Minister has laid that out clearly today for everybody to hear. Westminster Ministers will still have the right to impose lower food, environmental and other devolved standards on Scotland, regardless of the view of Holyrood. This Bill is the biggest assault on devolution in the history of the Scottish Parliament. It undermines devolved policy making, grabs spending powers, and removes state aid from being a devolved responsibility. The Scottish Parliament and the Welsh Assembly refused to give this Bill consent, and it is outrageous that the UK Government are once again ignoring the wishes of the people of Scotland as well as Wales.

In welcoming the amendment, Professor Aileen McHarg warned:

“There are still significant problems with this Bill: it changes the scope of devolved decision-making; it reserves additional powers to Westminster; it empowers the UK Government to spend in devolved areas that have nothing to do with markets (eg prisons, sport, international student exchanges); and above all—unlike EU law—it has an inherently asymmetrical effect on decision-making for England and for the devolved territories.

This is a Bill which squarely falls within the scope of the Sewel Convention, and the necessity of which is deeply questionable.”

But of course the Government have not listened to that, and Labour has capitulated on it.

The only reason for this Bill as it now stands is to demolish devolution. If the Government take this Bill forward today, as they obviously will, that is what they will be doing. Any pretence thereafter by the Scottish Tory MPs that they respect the democratic rights of the people of Scotland will be blown apart if they support this today. In fact, they have already supported it, because it seems that it will go through. They have done nothing to protect the democratic rights of the Scottish people.

People in Scotland are watching. People in Scotland, when they see the effects of this Bill, will be angry about the fact that their rights are being taken away by these Tory Ministers, aided by their Labour bedfellows. They will be furious about the fact that their rights are being stripped from them. They are listening, they are watching, and they are seeing developments in this place. They are understanding, now, that the only way to protect their Parliament, their rights and their democracy in Scotland is to go forward as an independent nation—and they will be voting for that, I am sure, in due course.

--- Later in debate ---

[Deidre Brock (Edinburgh North and Leith) (SNP)]

I suppose it is good to see that the Government have finally admitted that they have to listen to the concerns being raised about their appalling ignorance over devolution and how the UK currently works. Is it not bizarre that the unelected bunch along the corridor had more appreciation of the democratic deficit at the heart of the UK than the Government of “reclaiming sovereignty” fame?

It is appalling too—I have to say this—that the loyal and spineless Opposition betrayed generations of Scottish Labour activists and politicians who fought to establish devolution and battled their own party sometimes, but who learned to work across civic Scotland to deliver it. I think they must not have heard the warnings of Scottish Labour Action that a powerful devolved Administration in Scotland were not a frippery, but an absolutely essential counterpoint to Westminster and Whitehall blindness to issues anywhere outside the south-east of England. I expect nothing better from the Tories, but the Labour party has betrayed its own members and the activists who spent so long on the Calton Hill vigil. This desperate attempt to appeal to Tory values to try to bury the incompetence of the previous leadership might seem a decent old political strategy, but it renders the existence of the Labour party utterly meaningless.

In any case, we finally have a nod to the devolution settlement, even if it has been forced by the House of Lords. In yesterday’s debate, the Minister said this legislation was about devolution, demonstrated that it was about dismantling devolution and failed to answer any of the questions raised during the debate. It seems that Ministers in this UK Government no longer seek to engage in discussion, but instead merely fling pre-written barbs that they clearly think are clever. It is not clear whether they know how to debate and choose not to, or do not actually have command of their brief. Either way, it is unfitting for a Minister and no way to run a Government.

Instead of offering amendments to this elected Chamber yesterday or at any point during the passage of this Bill, the Government arranged their business in the unelected Chamber—somewhere it clearly feels most comfortable, among the privileged and away from the bother of the concerns of the people we represent. Those amendments, I will grant, go a little way towards addressing some of the concerns that have been raised, but I suggest that they were driven more by a desire to mollify cantankerous Lords than by the need to create decent legislation. They are tiny baby steps in the right direction at the time we needed giant strides and they leave, as we have already heard, reams of unanswered questions—how disputes between Governments will be resolved, for example, and how consumers can be protected from unthinking and uncaring Prime Ministers, for another.

The amendments will also embed an imbalance in the framework of a post-Brexit UK that will see England’s Government outweigh the other Governments in any negotiation, as the hon. Member for Stone (Sir William Cash) pointed out. He put his finger on the exact nub of this problem. England’s Government will outweigh the other Governments in any negotiation, because it continues to claim overlordship as the supposed Government of the UK. Labour might be interested in looking at that, because it echoes the democratic deficit that drove the creation of the devolved Administrations in the first place.

[Sir William Cash]

I personally have always believed that there should have been a referendum of the whole United Kingdom over the devolution question. I put down my own amendment back in 1997, and half the Conservative party went against a three-line Whip and followed me into the Lobby. That is the real way to get consent. I believe in the Union, and I believe that there should never have been devolution other than through a United Kingdom referendum, if it was going to happen at all.

[Deidre Brock]

I do not want to be rude to the hon. Gentleman, but he presents us with a glorious example of exactly why many on the SNP Benches want to get away from this House of Commons.

Scotland faces the same situation as we did in the last quarter of the last century: a UK Government of a hue that we did not vote for and would not support are riding roughshod over the interests of the Scottish people and will ignore them if they can. This Bill will pass today, but the debate will continue, and we have not yet begun to fight.

United Kingdom Internal Market Bill

William Cash Excerpts

Consideration of Lords amendments
Tuesday 15th December 2020 Commons Chamber

[Paul Scully]

The hon. Gentleman needs to speak to Scottish businesses more to see that they are concerned. They want to have the Bill in place to have the certainty, with 17 days to go until the end of the transition phase.

It is important to reiterate that the common frameworks are processes, not outcomes, and therefore broad exclusions are not suitable in this legislation. That leads me to amendments 1F, 1G, 1H, 1J, 1K and 1L. The common frameworks programme facilitates a conversation about a common approach and thus provides for consensus-based decision making in sectoral areas of the economy. However, it is neither the purpose nor in the purview of common frameworks to determine whether matters should or should not be in the scope of the market access principles. It is only right that the UK Parliament and parliamentarians from across the UK have the final say on this matter.

The Government also believe that the system that they have designed creates a proper balance between the independent operation of devolved powers and the automatic application of the principles that protect the market and give certainty.

[Sir William Cash (Stone) (Con)]

My hon. Friend has quite properly said that it is a matter for Parliament to make these judgments. As Chair of the European Scrutiny Committee, I had hoped that the Chancellor of the Duchy of Lancaster would come before my Committee. The Standing Orders quite clearly give us the right to examine questions relating to matters that are politically or legally important, and to report to Parliament accordingly. The problem that we have is that he has declined to do so three times in response to our written requests, and now this morning I have heard that he is not going to appear before the Committee. Would the Minister be kind enough to take that back where it belongs?

--- Later in debate ---

[Lucy Powell]

I disagree with the point that the right hon. Lady makes. We have been making the weather on the Bill, both in this place and the other place, which I will come on to discuss. We have been seeking safeguards for consent from the devolved Administrations when it comes to financial assistance powers. Now that we are trapped in groundhog day, perhaps today and tomorrow will be the moment when the Government listen and take on board some of the amendments from the other place.

[Sir William Cash]

The question of state aids very much lies at the heart of much of these debates. Does the hon. Lady accept that the EU state aid rules are a racket? I know very well the areas around Sheffield, Yorkshire and the midlands, where the coal and steel communities were destroyed, effectively, by the application and the discrimination that was made against—[Interruption.] And in Scotland. Does she accept that is why we need our own sovereign state aid rules, as I said yesterday on the Floor of the House?

[Lucy Powell]

It would be really nice if the Government used the powers that they already have, let alone those that it will soon acquire, to invest once and for all in British industry and British manufacturing. I am afraid that the Conservative Government do not have a great record when it comes to supporting our industrial heartlands, and that is plain for everyone to see.

I hope the Government will take on board the amendments from the other place, especially those in the name of Lord Hope and Lord Stevenson,  which have received clear support on each occasion.

In normal times it would be Christmas party season—I am sure we will debate that again at some point—but the Government’s hokey-cokey on the Bill really needs to end. We had part 5 in; now we have part 5 out. We were told the Bill would create a thriving internal market that would strengthen the Union and keep Scotland in, yet the reality is that it could lead to Scotland being out—something that Members on both sides of the House do not want to happen. The Government have been shaking it all about with the legislative games they have been playing in respect of the Bill, and I am not sure that has been good for anybody. I really hope that we can now see the end to some of these shenanigans.

On the amendments, I will not rehearse the arguments: we have heard them put eloquently by their lordships and Members of this House on previous occasions. [Interruption.] Sorry, did somebody want to intervene? Or is the hon. and learned Member for Edinburgh South West (Joanna Cherry) just trying to sledge me from behind? Just the usual.

--- Later in debate ---

[Lucy Powell]

No, I am afraid I will not; I am finishing.

I sincerely hope that the Government will reflect on that approach in future.

[Sir William Cash]

I have already made my point about the European Scrutiny Committee. I would now like to turn quickly to the issues that face us in these negotiations, because what is going on in the Bill is mirrored by the negotiations. We have not yet had a draft treaty text in black and white. We need to see it. We wish the negotiators well. As far as I am concerned, along with my colleagues who support my propositions, it is essential that we get this right, because it is about our national interests and the future of this country.

--- Later in debate ---

[Sammy Wilson (East Antrim) (DUP)]

I am glad that the hon. Member has highlighted the role that the EU would have in state aid, not only in Northern Ireland but in Scotland, Wales and England where those firms have any connection with Northern Ireland. Does he therefore find it surprising that, while Opposition parties have been complaining about state aid rules not being devolved to them, they are quite happy to have the EU plunder through any support given to industries in their own country?

[Sir William Cash]

They do not have a clue. They are going to get clobbered—they really will—and they do not get it. They just want to go on about devolution without regard to the effect that all this will have. I entirely agree with the right hon. Gentleman.

The Bill itself defines aid with reference to EU law—it refers to article 107 of the treaty on the functioning of the European Union. This is something that we will be affected by, because that amendment is not sufficient to enable us to maintain our sovereignty on all the matters relating to state aid rules. I look to the Prime Minister, I look to the Chancellor of the Duchy of Lancaster, and I look to the Government and the negotiators to get this right. This is the moment to do it. We are at a crucial moment. I trust the Prime Minister. I believe he will deliver. He said he will, and we will hold him to that promise.

It would go against UK national interest to accept EU demands of agreeing to legally binding commitments to mirror the EU state aid regime, given that EU state aid rules are created on the basis of objectives of common interest of EU member states, which no longer includes the UK, and are tested by the Commission on the basis of compatibility criteria that it has developed. They are non-binding guidelines, and therefore they can be changed at will. Under article 132 of the protocol and article 174 of the withdrawal agreement, provisions of the withdrawal agreement and the protocol referring to EU law or to EU law concepts or provisions are to be

“interpreted in conformity with the relevant case law of the Court of Justice of the European Union.”

That duty continues beyond the end of the transition period on 31 December and includes European case law handed down after the end of that period.

There is a real problem here. This is down to the negotiators as well as to those who are responsible for this Bill. We are faced with a very difficult situation, which impinges on our sovereignty and on our necessity to avoid, indeed to prevent, EU state aid rules from continuing to apply to the United Kingdom. This is a crucial moment in our economic, political and constitutional history. We must maintain the sovereignty of the United Kingdom. That is the message that I send to the Government and I trust that the Government and the Prime Minister will deliver it.

[Madam Deputy Speaker (Dame Rosie Winterton)]

This is what is going to happen. This debate has to finish at 3.10. I want to bring in the Minister at 3.06 to wind up. A lot of hon. and right hon. Members have been sitting in the Chamber from the beginning of the debate. If others come in and intervene, it does take time from those who have been trying to participate and have put their names down to participate. Before I bring in the SNP spokesperson, I have to say that I will now have to reduce the time limit to three minutes and, with that, I still may not get everybody in, so if colleagues want to take fewer than three minutes, I am sure that it would be appreciated by others.

United Kingdom Internal Market Bill

William Cash Excerpts

Consideration of Lords amendments
Thursday 10th December 2020 Commons Chamber

[Edward Miliband (Doncaster North) (Lab)]

I will try to be as brief as I can, Madam Deputy Speaker. I want to say to the Minister that we should note the progress made in the removal of the law-breaking clauses from part 5. What has essentially happened here is that the Joint Committee set up to deal with the outstanding issues on the Northern Ireland protocol has dealt with the issues on the Northern Ireland protocol. We are in a slightly through-the-looking-glass world here. The Chancellor of the Duchy of Lancaster this week described Maroš Šefčovič, the Vice President of the Commission, and his team as displaying

“pragmatism, collaborative spirit and determination to get a deal done that would work for both sides.”—[Official Report, 9 December 2020; Vol. 685, c. 847.]

These are the same people the Prime Minister described in his Second Reading speech in September as being

“willing to go to extreme and unreasonable lengths”.—[Official Report, 14 September 2020; Vol. 680, c. 42.]

He also said that they had engaged in an “extraordinary threat” and refused to take the “revolver off the table”.

There are two conclusions we can draw from this sequence of events. The first is that Mr Šefčovič has changed his whole character, attitude and personality in three months; the other is the Prime Minister has a man who will make up any old nonsense for political advantage. I tend to the latter view.

[Sir William Cash (Stone) (Con)]

Will the right hon. Gentleman give way?

[Edward Miliband]

I am going to make some progress; lots of people want to speak and there is not much time.

With the law-breaking powers that undermined our reputation in the world gone, we are left with the legal but, I believe, deeply flawed proposals for undermining our shared governance at home. I am glad that the other place has, by large majorities, stuck with the insistence on upholding the devolution settlement, particularly in respect of common frameworks. I say to the Minister that this is absolutely critical to the kind of country we want to build post Brexit. We want a functioning UK internal market, but we believe that can be achieved in a way that upholds high standards and allows devolved Governments both to have a voice in setting those standards and to make choices in devolved areas appropriate for each nation. The principle is clear: we have a system of governance based not any more on power hoarded at Westminster but on power shared. That should be respected.

All of that brings me to Lords amendments 1B, 1C and 1D. I hope that in the course of the coming days the Minister, with his colleagues, will reflect on this: the Government say that they support common frameworks, that they are a great innovation and that they are proud of them—and they are a good innovation in many senses—so why not give them legislative backing?

This is quite an arcane debate, so I wish to make it as simple as I can and return the example of single-use plastics, which I mentioned on Monday, to show the difference between the common frameworks approach proposed by Lord Hope and others and the Government’s approach. Environmental policy, including on plastics, is a devolved question. Under the EU rules we currently have, the Welsh Government, for example, could ban the production and sale of single-use plastics in Wales; under the Bill as it stood when it went to the other place, the Government of Wales would not be able to ban their sale because the UK Government do not propose to ban such plastics themselves. Because of the market access principle and the way it is implemented, the lowest standard in one Parliament will be the standard for all, which means that Welsh shops will have to stock these plastics. I do not believe that that respects the devolution principle. The power may be formally devolved, but in essence it is rendered ineffective by the approach taken in the Bill, which takes control back to Westminster. If the Minister can explain why it does respect devolution, perhaps he should do so, but I have not heard a good explanation.

What is the alternative to that? The alternative is the common frameworks approach, which provides a different way forward by attempting to find consensus for high standards among the four nations while respecting devolved powers and the ability to diverge through agreement. That is what Lord Hope’s amendments seek to do, which is why we support those amendments and will, indeed, seek a vote on them.

Lords amendments 8L, 13 and 56 also seek to preserve the ability for there to be higher standards in different nations, where they can be justified. Again, this is about our vision for the future. Instead of a race to the bottom, we want to see a race to the top on standards. We have seen this over the course of devolution: on the smoking ban, plastic bags and a whole range of issues, we have seen experimentation in different nations drive up standards. I say to the Minister that both sets of amendments are the right thing to do to respect the devolution principle, and I believe they are consistent with the internal market that we want to see.

I turn briefly to Lords amendments 48B and 48C, which would oblige agreement with the devolved Administrations before there was spending in devolved areas. If anything, this is a clearer and more simple test of the Government’s real intentions. They say that they believe in devolution. The city deals are worked out jointly with the devolved Administrations; the Government are taking enormously wide powers in the Bill on spending in devolved areas. If this is not about hoarding power to Westminster, the Government can surely agree to the proposal that such spending should have the consent of devolved Administrations. This is about the principle of shared governance. I make the point that that was certainly the case in relation to EU structural funds. The Minister set out some proposals on the shared prosperity fund, but the Bill proposes much wider powers in relation to spending in devolved areas. If this is not a power grab and is not about hoarding power to Westminster, surely it is possible to say, “Yes, this spending should be agreed with the devolved nations.” If the Government refuse to accept the amendment, they slightly give the game away.

I think there is a big picture here, which is that, as I said on Monday, all of us who believe in the United Kingdom must, I believe, go the extra mile to protect devolution. I think it is incredibly important. It is the key to keeping our United Kingdom together, in my view. While we welcome the removal of the offending parts of part 5, this Bill just does a bad job of doing that, I am afraid, and I think the other place is telling the Government that loud and clear. I am very struck, by the way, that the Conservatives who voted for the amendments yesterday—Lord Mackay of Clashfern and Lord Dunlop, to take two examples—are people who are steeped in this issue as Conservatives and are incredibly keen to protect both the devolution settlements and the Union.

I say to the Minister that we want the United Kingdom Internal Market Bill to reach the statute book. It must happen, however, in a way that does not ride roughshod over the way we are governed. I hope very much, for the sake of the United Kingdom and for the sake of respecting the devolution settlements, that the Government will reflect on this over the coming days.

[Sir William Cash]

In a nutshell, I am concerned about the fact that the Government have not insisted on this disagreement with respect to the notwithstanding clauses. I do not have time to go into all the detail, but I would simply say this. They remain needed, and I have put down amendments this afternoon to the Taxation (Post-transition Period) Bill for next week for the same reason.

The first thing is that this is to do with sovereignty and with judicial powers. It is to do with the fact that the notwithstanding clauses, with the use of the words “notwithstanding” and “whatsoever”, actually deal with the job effectively, and we should not take them away when we do not even know what the text from the Joint Committee is and we have just in effect been told that decisions are taken. There is this new clause talking about guidance. Guidance on what—on what agreement? We have not seen it, and we do not know what it means. I shall therefore almost certainly abstain on that at the very least.

The second thing is the question of what the right hon. Member for Orkney and Shetland (Mr Carmichael) said yesterday—he knew perfectly well when he used the word “Factortame” what he meant. It is what I have been talking about in respect of, for example, the quashing of Acts of Parliament: the ability of the courts under the rubric of European law to be able to take action to strike down UK law. Those principles may be retained—indeed, I believe it is more than possible that that would actually happen. There is a necessity to ensure that it does not happen when we have had a referendum, we have had Acts of Parliament and we have had section 38 of the European Union (Withdrawal Act) passed, all of which enables us to be able to provide for these notwithstanding clauses.

We should not remove these clauses on the basis of a jeu d’esprit or leave them out on the basis that everything is now all right in respect of these absurd allegations over breaches of international law, which are complete nonsense. Nobody has put forward a single argument in the House of Lords to substantiate the allegation that there is a breach of international law. In fact, the reality is that article 46 of the Vienna convention deals with these matters, and it is therefore perfectly proper for us to keep the clauses. I believe that we need to retain them not just as a safety net or as belt and braces, but because it may well turn out to be necessary to avoid, for example, either the House of Lords or the courts, in extremis, taking action the effect of which would be to undermine the Brexit process. That is the key issue. It is about sovereignty, which the British people have made clear is what they want—the same applies to the red wall seats, as the Labour party knows only too well.

The bottom line, therefore, is that I want an assurance from the Minister that measures will be taken in legislation—in primary legislation—to restore those notwithstanding clauses. I have discussed this with our team in the Whips Office today. I hope the Minister will simply say, “Yes, we will take note of what my hon. Friend has said, and indeed will give effect to it if we find that, at the end of this weekend, it is necessary to return those clauses to the taxation Bill and also, if necessary, to this Bill,” but without prejudicing the safety of the United Kingdom Internal Market Bill in its entirety as it stands at the moment.

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

This shabby, shambolic, pernicious Bill should never have seen the light of day. It has already been delivered a historic defeat in the Lords—they rightly tore it apart—yet this Government overturned all their amendments and sent the Bill back. No sooner had they done that than there came the press release—as ever, bypassing this House—to say that the Government would be retreating from breaking international law with clauses that should never have been in the Bill in the first place, and that have only served further to diminish this Government and the UK’s already tattered international reputation. They are now reinstating these amendments.

Of course, it is not just the other place that this Tory Government ignore; it is almost everybody. When it comes to devolution and the nations of the UK, they are still determined to ignore the democratically elected Parliaments. As we have already heard, both the Scottish Parliament and the Welsh Senedd have voted to withhold legislative consent on this Bill, yet this Government say that it is about working with the devolved Governments. It is not.

Lords amendments 48B and 48C pretty much deal with the shared prosperity fund that we have heard about. Under these amendments, the Government would have to agree with the devolved Governments on the way in which and where funds would be spent for matters within the devolved competences—roads, health and education, for example. The Government have said that the devolved nations will be represented, but Lord Thomas did not fall for that smoke and mirrors approach from the UK Government. He noted that,

“the clause without my amendments would enable the UK Government to spend in devolved fields and bypass the devolved Governments and Parliaments in Scotland, Wales and Northern Ireland who have been elected to be responsible for those fields. It would, in effect, hollow out the devolution settlements.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1293.]

It is disgraceful that we still do not have details of the shared prosperity fund, just weeks before we leave the EU. I was asking about this in 2017, and we have still not had anything from the Government.

Lords amendments 50B and 50C set out an attempt to agree a common framework, which is a regime that can govern the control of subsidies. Lord Thomas warned that, without this,

“Having changed the settlement for a policy that they have not yet devised, the Government then wish simply to consult…and then announce their decision. That is what I would call ‘way one’—the UK Government way.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1309.]

The SNP will not accept this brazen power grab. State aid must remain a devolved competence.

We welcome the changes through motion C1 in the Lords. The amendment removes the law-breaking clauses from part 5 of the Bill. Lord Judge said:

“They were constitutionally improper and a constitutional aberration. They subverted the rule of law.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1277.]

They have even been knocked down by former Tory leader, Lord Howard.

[Sir William Cash]

Will the hon. Gentleman give way?

[Drew Hendry]

I am not going to take interventions. We are very short on time, so I am going to press on; sorry.

Lords amendments 8B to 8L, 13A and 56A require the Secretary of State to seek the consent of the devolved Administrations before exercising the powers, setting a time limit for that and a process if consent is withheld. Lord Stevenson said:

“The purpose of our amendment is to preserve the potential for managed policy divergence that is central to the devolution settlement.”

Again, the UK Government just ignore that. Lord Stevenson also noted:

“The Government have failed to explain properly why their list of exceptions is so much more restrictive than that of the EU—well, we can probably work that one out”. —[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1268-69.]

Let us not forget that this covers a huge range of effects for people in Scotland, Wales and Northern Ireland:

“environmental standards and protection…animal welfare…consumer standards, including digital and artificial intelligence privacy rights…employment rights and protections…health and life of humans, animals or plants…protection of public health…equality entitlements, rights and protections.”

It has a massive impact on Scottish public society.

Lords amendments 1B, 1C and 1D seek to protect the role of the common frameworks in the Bill. The Minister thanked Lord Hope, but he was the one who pointed out that

“if there really is a will on the Government’s part to make this system work, a solution can be found.”

He also said:

“Traders from other parts of the UK who had no regard for the higher standard could simply ignore it, irrespective of how simple and easy it was to comply with. That is not where we should be going.”

He concluded:

“A balance needs to be struck here, if devolution is to be respected.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1249-50.]

Time after time after time, Members of the Lords pointed out the massive disrespect and contempt the Government have for the devolution settlement. Baroness Hayter of Kentish Town warned the Government

“to be very careful about clawing back decisions from our now quite long-established devolved settlements.”—[Official Report, House of Lords, 9 December 2020; Vol. 808, c. 1256.]

The Scottish Government, by the way, remain fully committed to the common frameworks process, as this Minister knows. I cannot use the language I would like to use in this House about what the Minister repeated, but he knows that the Scottish Government have remained 100% committed to the agreement that was set up to take the process through, and he should correct the record.

This Bill is unwanted and unwarranted and unashamedly undermines devolution. It is an attack on the democratically elected Scottish Parliament and the vast majority of the Scottish public who value it. Since 2014, promises to them have been routinely broken in this place. Their votes and their views have been ignored over Brexit. Now, Scotland will be the only country not to get what it voted for in that referendum. They will in the next one. They know that. The only way to protect their rights and their Parliament is for them to take the next logical step and for Scotland to become an independent nation.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the fact that the Government have accepted that it was unwise, if I can put it charitably, to have certain clauses in this Bill that might have impugned our international reputation for supporting the rule of law. I welcome the Minister’s approach and that of his colleague Lord True in the other place. The Bill is better off without those clauses. I had sought at the very least to ensure there was a parliamentary lock should such clauses ever be needed, but I hope that through the agreement achieved in the Joint Committee, thanks to the work of my right hon. Friend the Chancellor of the Duchy of Lancaster, they are not needed at all. It is better, therefore, to leave the Bill clean in that way to serve the other important purposes that it does have to achieve.

That is why, with all due respect to my hon. Friend the Member for Stone (Sir William Cash), I trust that the Minister and colleagues will firmly resist any temptation to try to reinstate such clauses, which would be unnecessary, provocative in more ways than one, and unhelpful to the purpose we all seek to achieve.

I read with care the speeches of two former Lord Chief Justices and the former leader of my party, my noble Friend Lord Howard of Lympne, who himself was a distinguished Queen’s counsel with many years in practice before he came into this place. They certainly were not talking nonsense; they were making legitimate and fair points about areas of concern, even though I perhaps was more content to go with the view of David Wolfson QC, who was quoted by Lord Naseby, that the taking of such clauses into the Bill was not of itself a breach of international law until such time as they were brought into force. We are none the less better off not going down that route, so I hope the Minister will resist any temptation to put anything of that kind back into this Bill or into the Taxation (Post-transition Period) Bill, because that would muddy the waters needlessly, legally and politically.

We are going to require political goodwill on all sides to make the coming days and weeks work. Were it ever to be necessary to take such extreme measures in such extreme circumstances that might occur, immediate primary legislation on an emergency basis could of course be done, and that would give the parliamentary lock that I was concerned should exist, but through another form. It is not necessary for us to go down that route now, because, frankly, to try to reinstate the clauses would be fatal to the progress of the Bill, and that would not be in the interests of the Government or anyone else. I thank the Minister for the way in which he and his colleagues have approached this matter.

[Sir William Cash]

Will my hon. Friend give way?

[Sir Robert Neill]

Nobody else has been giving way, with every respect to my hon. Friend. Other people want to get in. I have said what I have to say. In fairness, he and I could happily go on all day about this in a friendly manner of disagreement, but I think possibly that is for outside the Chamber, rather than in it. I say that in the nicest possible way.

--- Later in debate ---

[Paul Scully]

I appreciate everybody who has taken the time to speak today. My hon. Friend the Member for Stone (Sir William Cash) spoke about the “notwithstanding” paragraphs in the Bill. Clearly, we have made the arrangements. We have found an agreement with the Joint Committee, and I sincerely hope that that will continue through to the next stage, which will be getting a free trade deal, on which the Prime Minister is working very hard with Lord Frost and his counterparts in Brussels. We will always make sure that we look after unfettered access for Northern Ireland into GB, which comes to the points that my hon. Friend made.

[Sir William Cash]

I did ask for an assurance in general terms that the necessary measures would be taken in primary legislation if things were to go wrong for the future. That is all I am asking for. It is not very much, but it is really important in relation to the potential striking down in legislation.

[Paul Scully]

I appreciate what my hon. Friend says. I think we will give the appropriate measures and protections, whatever form that comes as—if it is indeed needed; I hope that it is never needed in the first place. We will look to make sure that we protect Northern Ireland and its unfettered access.

My hon. Friend talked about state aid rules in Northern Ireland. They will apply to Northern Ireland as agreed under the withdrawal agreement and the Northern Ireland protocol, but they are not the same state aid rules that apply today, because there are new flexibilities of service providers. We welcome that agreement in principle in the Joint Committee, which was about managing the risk of reach-back into Great Britain and guards against the Commission taking an extreme or irrational interpretation of article 10 of the protocol. That means that there is no longer a need for the safety net.

The hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) talked about the common frameworks and Scotland’s involvement. I hope I was correct in saying that I believed that the Scottish Government pulled away from discussions about the internal market, not common frameworks. I hope that is clear; if I did mis-speak, that was exactly what I meant to say.

We have now had 90 hours of scrutiny on this Bill across both Houses. I reiterate that I am grateful for how right hon. and hon. Members in this place have debated, scrutinised and engaged on the Bill. I said on Monday and again emphasise that we have been and will continue to be reasonable in discussions on this Bill. Since Monday, we have had a lot of good, positive movement and agreement and we welcome that, but ultimately, Government need to balance this with the need to deliver a Bill that provides the certainty that business wants and needs to invest and create jobs.

The Future of the High Street

William Cash Excerpts

Thursday 10th December 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Kelly Tolhurst)]

I beg to move,

That this House has considered the future of the high street.

There is no shying away from the fact that this pandemic has clearly had a devastating impact on the great British high street and on the businesses that occupy it. I have great sympathy with anyone whose business or job has been endangered by this pandemic, and I want to reassure the House that this Government are unwavering in our commitment to support our high streets and town centres in the weeks and months ahead. I am personally very passionate about our high streets and town centres. They are so much more than places to shop. They are where we meet our families, friends and neighbours, and where communities come together to work and to socialise. They are a focal point within our local areas. They are, of course, also home to thousands of people who are just as keen as the local businesses that occupy them to see their high streets bustling and thriving.

Prior to the pandemic, our high streets were already going through a significant evolution, with changing consumer habits and changes to what people are wanting to see on their high streets. People are shopping online more frequently, and our high streets are having to adapt to the 21st century to become more than just retail hubs. Since March, we have seen an acceleration in the trends that our high streets were facing. Online shopping has risen from pre-pandemic levels of about 20% to a high of 33% of total retail sales in May. Footfall has also decreased as a necessary consequence of the effort to protect public health, which is why businesses have been unable to trade as they normally would. We are proud to see so many businesses and communities coming together to support their local high streets. In my own constituency, independent retailers, businesses and local groups have come together in co-ordination with the business-led Rochester city centre forum to provide a covid-safe experience in the run-up to Christmas. Although closed, some outlets have created fantastic window displays and decorations and are offering click-and-collect services and working together to support the high street.

[Sir William Cash (Stone) (Con)]

rose—

[Kelly Tolhurst]

I know that a lot of people are keen to speak, so I should perhaps continue a bit further.

We value the support of trade bodies and representative organisations that are working with their members and the Government to plan for recovery. It is clear that covid-19 has dealt a major blow to the high street, as evidenced all too clearly by the well-known retail chains—including Debenhams and Arcadia Group Ltd—that have gone into administration.

The Government have put in place a range of support measures to assist businesses on the high street. We have provided a comprehensive package of support worth £200 billion, including the eat out to help out initiative to help to protect 2 million jobs in hospitality. We have also provided cash grants of up to £25,000 for retail, hospitality and leisure businesses with a rateable value of between £15,000 and £51,000; more than £50 billion in business loans; the coronavirus job retention scheme; and the deferral of income tax payments.

[Sir William Cash]

My constituency is extremely grateful for the moneys that have been provided for the high street, but does my hon. Friend agree that when consultations are taking place and project developments are being created, people in the high street in places like Cheadle in my constituency require proper consultation and should get proper consultation before matters are taken any further?

[Kelly Tolhurst]

I agree with my hon. Friend that local high streets are a valuable asset in our local communities and it is absolutely right that local businesses and stakeholders should be consulted and that we should get their buy-in. Any high street development should always be supported by local businesses and stakeholders.

We have acted quickly and our package of economic support is one of the most generous and comprehensive in the world. The Government announced in the spring that the business rates retail discount would be increased to 100% and expanded to all eligible properties across the retail, hospitality and leisure sectors for 12 months. We have sought to bring a much needed breathing space to business tenants by bringing forward a moratorium on commercial evictions and restrictions on statutory demands, and by winding up petitions.

The use of commercial rent arrears recovery has provided landlords and tenants with time and space to agree reasonable adjustments to rents and lease terms, including terms for the payment of accumulated rent arrears. I am pleased that so many stakeholder bodies have signed up to the voluntary code of practice to encourage constructive dialogue between tenants and landlords. We will continue to work urgently to identify further measures of support that can be put in place to assist them during this time.

We recognise that our high streets and the businesses located on them need to adapt to the changing way in which consumers are using high streets, so we are supporting areas by funding investment in infrastructure and place. Our £3.6 billion towns fund and the future high streets fund competition will create jobs and build more resilient local economies and communities as we begin to recover from the impact of coronavirus. We are now in the final stages of assessing the proposals from the shortlisted future high streets fund applicants and expect to announce the outcome of the competition soon. We have brought forward £81.5 million from the towns fund for investment in capital projects that will have an immediate impact. Each of the 101 towns selected to work towards a town deal has received accelerated funding dependent on their population.

The new £4 billion levelling-up fund for England that was announced in the spending review will be open to all local areas and allocated competitively. To support levelling-up opportunity across the country, we will prioritise bids to drive growth and regeneration in places in need—those facing particular local challenges and areas that have received less Government investment in the past.

A call for evidence was published on 21 July for the fundamental review of business rates, inviting stakeholders to contribute their views on ideas for reform in all elements of the business rates system, including future reliefs. Government are now considering the responses to the call for evidence, and the review will conclude in the spring.

We are also ensuring that our planning system is ready to support our high streets and communities in recovering from this pandemic and changing consumer habits. We have introduced reforms that create a new “commercial, business and service” use class, which encompasses a wide range of purposes, allowing businesses to attract people to high streets and town centres. That includes offices, shops, cafés, gyms and other uses that are suitable in town centres. The new class also allows for mixed use, to reflect changing retail and business models. The reforms also create new “learning and non-residential institutions” and “local community” use classes, ensuring that valued local assets such as community shops and libraries are protected. Businesses will have greater flexibility to adapt and diversify more quickly to meet changing needs and circumstances.

However, the success of a high street is about more than just funding. It requires local people to be empowered with the tools and resources they need to help their town centres and high streets adapt for the future. It is about having an ambitious vision for the future that the whole community can buy into. That is why Government are supporting local leadership through the high streets taskforce, which is doing this in four ways: building local authority capacity by providing on-the-ground experts; improving place-making skills through access to training; improving co-ordination nationally and locally, to ensure that high street plans reflect the needs of their communities; and improving the use of data and best practice.

The taskforce is being run by a consortium led by the Institute of Place Management. Over the next four years, it will provide expert guidance to those working in local authorities and business improvement districts, while supporting town centre managers and community groups to help their high streets adapt. In response to the pandemic, the taskforce published a covid recovery framework to inform local places in planning their response to the pandemic. I know that a number of high streets have found this useful and that St Helens, Norwich and Solihull have been among the early users of the framework. The taskforce will be providing in-person expert support to those high streets that need it most, offering expertise on subjects such as planning, design and place making. We continue to explore what more can be done to help our high streets and town centres quickly recover and adapt.

While covid-19 has posed huge challenges for our high streets, we have also seen some inspiring examples of businesses adapting and communities rallying round to support their local independent shops through the pandemic. For some communities, this lockdown has led to a reconnection with the local. We know that footfall has returned to our district centres at a quicker rate than it has in our larger town and city centres, with people wanting to shop and socialise closer to home. Research from PwC and the Local Data Company also suggests that independent shops have fared better than chain stores over the course of the pandemic. That may give a glimpse into the future of our high streets as places of commerce but also unique spaces that reflect the needs of the local community.

That has been underscored by my Department’s experience of running the Great British High Street awards. What linked all our winners was a unique offering and sense of belonging, and it is this sense of local community—this intrinsic link between our high streets, our town centres and our society—that we will re-establish and strengthen as we emerge from this pandemic. I believe that we can renew our mission to help our high streets adapt, not only to support their recovery from the effects of covid-19 but to help them continue to evolve and flourish for generations to come.

--- Later in debate ---

[Sir William Cash (Stone) (Con)]

Cheadle, in my constituency, also falls within Staffordshire Moorlands District Council. I asked for Cheadle to be included in the Government high street project, and I am glad that was agreed. However, SMDC has decided to package an additional set of contentious objectives into the mix outlined in its Cheadle town centre projects report to its cabinet on 6 October. This includes many of our main community assets, with the prospective closure of the South Moorlands leisure centre and of the community Cheadle Hospital, and prospective housing on our town centre car parks. I asked before the cabinet meeting for proper consultation, but my request to have a statement read out was refused. I proposed a local referendum on all this. The district council commissioned two sets of consultants in 2016, without discussion or engagement with the affected community. The lack of transparency on the brief and objectives used to commission these reports and on the full reports themselves is of great concern.

What is clear is that a plan from 2016, predating the reports, does not align with Cheadle’s community aspirations. The reports have cost £60,000, without proper consultation, and it is taxpayers’ and my voters’ money that has paid for them. The cabinet at SMDC has produced a stakeholder panel and delivery board within the prescribed set of limited options. The reports prescribe a stakeholder panel that omits key users of the facilities and is subservient to the delivery board; it contains only one member of the stakeholder panel, so the outnumbering is at least three to one. The delivery board has priority over the stakeholders. There is a set of prescribed options extracted from the yet-to-be-seen full reports. There is no assessment of the costs or environmental impact of demolition. There is already a petition of 4,400 signatures for the retention of the leisure centre. I ask the Minister to take appropriate steps to ensure and guarantee proper consultation for my constituents, and to hold SMDC to account. It is part of my constituency. I have two other councils in my area, Stafford Borough and Newcastle-under-Lyme Borough Council, and I have not had difficulty with them in this respect. I ask the Minister to take note and ensure that value for taxpayers’ money is properly achieved and that we have proper consultation. That is what we are asking for, because if we can have proper consultation, these projects—this levelling up—will all work, because people will know that they are getting the results that they have expected. It is terribly simple; it is just called proper consultation. Can we make sure we get it?

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.]

United Kingdom Internal Market Bill

William Cash Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 29th September 2020 Commons Chamber

[Paul Scully]

I very much do not hold the devolution settlement in contempt. It is right that we work together. I believe that the UK is stronger together. It is important that we give Scottish businesses—just as much as Welsh, Northern Irish and English businesses—the certainty that they want to be able to trade, so we will continue to engage with the Scottish Parliament and officials and politicians up there to achieve legislative consent.

Hundreds of powers will flow from the EU to the devolved nations and the UK Government in an unprecedented transfer. As we recover from covid, we must ensure that our economy is stronger than ever. That is why the Government have introduced this Bill and why it is essential that we pass it. We want to guarantee the continued functioning of our internal market, to ensure that trade remains unhindered in the UK.

I will begin by speaking to the amendments tabled by my right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy, starting with those that strengthen the Bill’s measures relating to the governance and functioning of the Office for the Internal Market. The office will sit within the Competition and Markets Authority to monitor and report on the internal market on an equal basis for all Administrations. The Competition and Markets Authority has a strong reputation for independence and impartiality. The Government have strived to preserve that reputation in setting out the functions to be carried out by the Office for the Internal Market. By providing non-binding, expert reporting and technical monitoring on regulations and proposals, it will provide robust evidence on the actual or potential impact of regulatory measures.

New clause 4 gives the Competition and Markets Authority the objective of supporting the effective operation of the UK internal market through the provision of economic and technical advice and expertise. That will exist in parallel to the existing objective of the Competition and Markets Authority to promote competition for the benefit of consumers.

New clause 5 enables Competition and Markets Authority functions under part 4 of the Bill to be carried out by an Office for the Internal Market task group and introduces a new schedule setting out the Government’s arrangements for the Office for the Internal Market panel and task groups. That mirrors the existing arrangements for the establishment of panels and groups that it has in place.

New schedule 1 establishes a panel of experts to lead the work of the Office for the Internal Market. The Secretary of State will appoint a chair and further members, following consultation with Ministers from all three devolved Administrations.

[Sir William Cash (Stone) (Con)]

Will the Minister confirm that the arrangements under the Bill regarding the CMA guarantee that we will not have any jurisdiction by the European Union or the European Court over the CMA and, furthermore, that one of the cardinal principles on which the European Union and the Commission are taking their stand is that they insist that we should not benefit competitively from leaving the European Union and we should not be able to compete with them on reasonable terms?

[Paul Scully]

I am grateful for that typically wise intervention. I am happy to provide that confirmation.

Amendment 1 provides absolute privilege against defamation for the Competition and Markets Authority when carrying out its functions under part 4. That will ensure that it can report and provide advice independently without needing to expend resources on preparing to defend litigation, and that businesses with deep pockets cannot sue or threaten to sue the CMA to obstruct it from carrying out its functions.

I shall set out briefly for the House the amendments that will improve the Bill’s drafting. Through amendments 31 to 34, we are taking the opportunity to put it beyond any possible doubt that alcohol minimum unit pricing-type regulation and any other sales requirements are not in the scope of the mutual recognition principle, unless they amount in practice to a total ban on a good being sold. That came up in Committee. We want to make sure that rather than politicking, we can return to a business continuity approach.

--- Later in debate ---

[Lucy Powell]

My hon. Friend makes a good point. Like him, I had a wry laugh when I saw that advert.

[Sir William Cash]

Will the hon. Lady give way?

[Lucy Powell]

I will just make some progress, if the hon. Gentleman does not mind.

Those noble contributions aside, we really have heard it all from those on the Government Benches during these debates. In trying to justify their latest cack-handed approach to public relations ahead of crunch trade talks with the EU, they have come up with a whole menu of reasons to support the Bill as drafted. Here is the highlights package. Do the Government break an international agreement—an agreement that the Prime Minister signed a few months ago? Do they break the law? Apparently, this Bill only breaks the law in a “limited and specific way”. Others on the Government’s own Benches, as we have already heard today, disagree. Some Members said that the Bill does not break the law in any way, but the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said that it was okay because other people break the law, too. So which is it?

[Sir William Cash]

rose—

[Lucy Powell]

Perhaps the hon. Gentleman might be able to answer that question. Which is it?

[Sir William Cash]

I would just like the hon. Lady to answer a simple question. Is she aware that, when in power, the Labour party frequently overrode treaties and has, therefore, in her own terms, broken international law. Is she aware of the number of times that that has happened and how egregious it was? The same applies to many of the matter to which she has just referred.

[Lucy Powell]

The hon. Gentleman has failed to give me an example, so I am not sure what he is referring to. He has spent his whole political career campaigning for us to leave the EU treaties, and the withdrawal agreement, which he supported and which his Government signed, did exactly that, and he is still not happy with it, so I do not know which it is.

The former Prime Minister said in a powerful speech last week that this Bill will tarnish and do “untold damage” to our reputation and weaken the UK in the eyes of the world.

--- Later in debate ---

[Sir Robert Neill]

One of the most salutary but, in retrospect, useful put-downs I ever had when I was a young barrister came when I perhaps overindulged in hyperbole in advancing arguments to the Court of Appeal and Lord Justice Cumming-Bruce said to me, “There’s no jury here, Mr Neill, you can cut out the hyperbole and stick to the arguments.” He was right and perhaps it is not a bad thing to try to do in the Committee on the Bill, as there has been a deal of hyperbole surrounding its passage, coming from those in all parts of the House. We might be better off cutting it out a little and getting back to the nuts and bolts of what we are discussing, because a lot of the Bill is perfectly reasonable and necessary. It is not a necessity I particularly like, because I wish we were not leaving some of the arrangements we currently share, but it has to happen as we exit the transition period. The real difficulty comes from the issues in part 5, which we have discussed on a number of occasions, so let me just return to them.

I listened with care to the Minister, and I do not doubt his sincerity and good intentions in this regard. He must have thought it a pretty rum do when, as a trade Minister, he found himself in the middle of a lawyers’ argument, but that has never stopped the lawyers making that case. I recognise that the Government have endeavoured to shift to try to make clear some of their intentions in relation to the difficult and sensitive matters that part 5 threw up. I will not pretend that we should have started from here; it might have been better to have contemplated the idea of some emergency legislation should we be confronted by what, I am glad to say, the Minister says is an unlikely eventuality, as this is what we all want to avoid if at all possible. I can see arguments the other way as well, so I welcome the constructive approach the Government have adopted towards myself and a number of my hon. Friends who had significant reservations with the Bill, as tabled, to try to make it clear that it is not the Government’s intention to act in a way that would undermine our reputation as a nation and jurisdiction that supports and upholds our obligations in international as well as domestic law.

[Sir William Cash]

I am glad my hon. Friend is referring to a constructive role. I gather from what he said the other day that he was talking very much in terms of last resort, and I want to be constructive, too. As he knows, I have already made the point that the Labour party has been passing Acts of Parliament that clearly and unequivocally override international law and that this has also happened in relation to other legislation in the UK, as I pointed out to my right hon. Friend the Member for Maidenhead (Mrs May). So will my hon. Friend bear that in mind when he is considering the question of last resort, the threshold he referred to the other day and the fact that this is more common and happens more frequently than he may appreciate and that sovereignty, above all else, is the keystone upon which the whole of Brexit depends?

[Sir Robert Neill]

I am not sure whether or not that is an argument for Brexit; on that basis, the Don Pacifico affair was a great statement of national sovereignty, but I do not think it was a great triumph of intellect, integrity or national interest. Leaving that to one side, I accept that there will be a number of occasions when Governments may have departed from their international obligations, but that does not make any of them desirable and it does not mean that we should not seek to limit the circumstances in which that might occur to the barest necessities. So I think we have some common ground there, or at least I hope that we have. That is why I welcome the statements the Government have made to flesh out their intentions on the way in which part 5 would be used.

I say to Opposition Members that I accept that there are certain circumstances in which we might find ourselves in difficulty because of the attitude of our counterparties in the EU. I hope that that will not come to pass and that we are seeing just a matter of the rhetoric of negotiation. There is, however, a respectable legal argument, which has not been ventilated before, although it is held by a number of senior lawyers I have spoken to, to say that, as we all know, the withdrawal agreement is binding on the UK as a matter of international law—that must be right—but that that is based upon the true construction of the withdrawal agreement.

The withdrawal agreement is clearly subject to the provisions that stipulate that Northern Ireland is part of the United Kingdom. There is an obligation on the parties in good faith to negotiate a free trade arrangement between the UK and the EU such as would render the need for checks on goods passing between the UK and Northern Ireland largely, if not completely, unnecessary. Provided that is done, I do not think any of us get into any difficulties. I accept that in negotiations there has been some language—I hope it is no more than the language of negotiation at this stage, a posture—that might suggest that the EU could argue for a substantial array of checks that might go beyond that which is compatible with the true construction of the agreement in so far as it must respect the role of Northern Ireland within the United Kingdom.

--- Later in debate ---

[Sir Robert Neill]

I recognise that that is a widely held argument.

[Sir William Cash]

Total tosh.

[Sir Robert Neill]

With respect to my hon. Friend, I do not regard it as total tosh. I happen not to agree with it in totality, but I do not think that we should ever dismiss serious legal argument from serious practitioners on either side of the question as being out of consideration. It is a matter that we ought to weigh carefully. I do think that there is an answer. Part of that answer is the one I have just been formulating, which suggests to me that there can be certain circumstances in which the breach of the true meaning of the agreement is such that the UK itself will be entitled to use its international law right.

--- Later in debate ---

[Sir William Cash]

I just wonder whether my hon. Friend would consider that bringing in a Bill was a matter of privilege for the House.

[Sir Robert Neill]

I am sure that it is a matter of privilege for the House, but I just come back to the point: I do not think that that engages with the issue we are concerned with here. Of course, it is perfectly within the rights of the House to bring forward any legislation it likes. I know my hon. Friend played a role in having section 38 inserted into the European Union (Withdrawal Agreement) Act 2020, but, with respect, that simply restates that which we already knew and probably picked up in the first week of the law course; that, essentially, Parliament is sovereign and of course it can legislate in the way that it wishes. It can legislate in a way that is incompatible with international law. That does not make it a desirable course to go down. I think that is the point that needs to be said. Of course, it may be possible and I do not think privilege is engaged. The point I am seeking to make is that the UK should be very wary about doing anything that breaches its international obligations. I do not think it has yet and there are reasons why we may be able to avoid that, but that is why I think we need to keep the debate a little more calm in terms of what the rights are.

--- Later in debate ---

[Drew Hendry]

Of course, the hon. Member is entirely wrong with his selective quoting. This absolutely underlines why the Tories have not won an election in Scotland since 1959. You have to be about 90 years old to remember voting in an election that the Tories won. Why? Because they do not listen to the people of Scotland and they do not have their interests at heart. Using this Bill, they are able to lower standards by holding a veto over Scottish Parliament decisions. The mutual recognition mechanism in the Bill starts a race to the bottom on standards, with the UK Government imposing their will.

As we heard, clauses 2 to 9 contain sweeping powers on animal welfare, food safety, environmental protections —every single aspect of Scottish life: the water we drink, the food on our table, the buildings we construct, and even our NHS. We know that chlorinated chicken is on the table and that it will be bloating our tables as a result—[Interruption.] They groan, but Donald Trump said that

“everything is on the table”—

and that means products from the States, including that and hormone-injected beef. What else will be presented to us while the UK Government desperately scratch around for a trade deal, leaving no stone unturned regardless of who or what is underneath it?

The Bill hamstrings the Scottish Parliament from protecting the highest standards of food safety, from protecting Scottish farmers’ livelihoods, and from protecting the highest standards in our environment and our building control. It hampers the Scottish Government’s ability to keep public companies in public hands, including preventing attacks on the NHS. Worse still, as I said earlier, it puts the power to overrule Scotland’s Parliament in the hands of one Tory Minister. The Secretary of State for Business, Energy and Industrial Strategy has the

“power to alter these exclusions”.

Professor Michael Dougan has warned of the impact of the mutual recognition principle and the effect that it will have on Scottish produce:

“The impact in practice of this Bill in many of the proposed exercises of devolved competence in relation to trading goods or services is to effectively penalise domestic producers or traders and not be able to enforce the same standards against imported goods or service providers.”

As I mentioned earlier on the teaching council, Scotland requires secondary teachers to have a relevant degree in the subject that they teach. However, part 2 of the Bill, on professional qualifications, forces Scotland to accept teachers with lower qualifications. The chief executive of the General Teaching Council for Scotland, Ken Muir, said that

“our key concern about the Bill is the extent to which we ourselves, and parents, and users of the education system would feel that”—

it—

“would be watering down the teaching profession in Scotland”.

The Minister mentioned that the Government have tabled a new technical amendment, amendment 32, with the purpose of

“further clarifying the freedoms of all parts of the UK to regulate pricing and manner of sales policies as long as they are non-discriminatory.”

Of course, that is the key line—

“as long as they are non-discriminatory”—

and they say that “we have now acted to provide increased legal certainty around this point”. The Minister conceded earlier that that was in relation to alcohol minimum unit pricing. I remind hon. Members that Ministers had told us that that was not affected by the Bill and did not come into account in it, and now they are admitting that it does and they have put this absolute sham of an amendment in place to cover that. All it does is leave this open to be overridden by the non-competitive clause.

We heard about financial assistance. In case anyone is seduced by the spending promises, I have been calling for clarity on the so-called shared prosperity fund since 2017 along with my SNP colleagues. As the Financial Times reported, an individual close to the discussion said:

“The current plan is an odd combination of reserving state aid [for control from London] but then agreeing to a free-for-all. They just want to be able to bung money at things and do not want UK internal market legislation cutting across that.”

That is odd, or is it just convenient?

The Tories’ Communities Secretary has spent millions of pounds from the towns fund on 61 towns, 60 of which happen to be Tory marginals, including his own seat. In the highlands, we understand that directly, because in 1992, Prime Minister John Major took money from the highlands to shore up flagging support in the south-east of England. We have experienced the altruism of Tory Governments.

The flood of amendments to fundamental aspects of the Bill, including from UK Ministers, shows that it is completely bad and shoddy. Clause 5 transfers the CMA functions to the OIM. Drafting errors abound throughout. Amendment 15 actually attempts to further undermine the rule of law. It says:

“No court or tribunal may entertain any proceedings for questioning the validity or lawfulness of…section 42(1) or 43(1).”

That is dangerous and toxic stuff. That follows an absolutely useless and terrible consultation that failed to include and engage the devolved Governments on aspects of the Bill that see the Government strip powers from Edinburgh, Belfast and Cardiff. The legislation was shared with the devolved Governments only hours before publication.

The recklessness of the Tory Government only creates more uncertainty. When their reasonable worst-case scenario is two-day delays to freight on the channel and 7,000 lorries in Kent, with an estimated 275 million new customs declarations each year post Brexit that will cost about £15 billion, they can add the words “absurdly” and “tragically” to reckless.

Poll after poll now shows that people in Scotland understand that the only way to protect their democratically elected Parliament, to protect standards and to keep their waters and NHS safe is through Scotland becoming a normal independent nation and taking its place in the international community. This Bill insults Scotland. We will not vote for this Bill.

[Sir William Cash]

rose—

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. Just another reminder: I am conscious that many of the initial contributors are speaking to amendments, so it is important that we are flexible, but I say again that if we want to get in the many Members who want to contribute to the debate, it is important that at this stage, Members are as brief as they can be while getting their important points in.

[Sir William Cash]

There has been a heated and, in many respects, misconceived debate about the question of our compliance with international law. I had something of an exchange with my right hon. Friend the Member for Maidenhead (Mrs May) on Second Reading. I made the point that UK law has, in the past, breached international treaties. That stands, because it is important for us to recognise that that has been the case.

Indeed, it is often forgotten that the EU guidelines of 29 April 2017, which my right hon. Friend’s Government allowed to happen, unilaterally imposed on us requirements contravening article 50 of the Lisbon treaty and insisted that we should obey the basis of the EU’s idea of the conduct of negotiations. As Clausewitz said, diplomacy is war by other means; I believe the gloves are about to have to come off.

The withdrawal agreement and the political declaration recognise the autonomy of the EU and the UK, but whereas the UK is a sovereign state, the EU is merely an international organisation. UK sovereignty is expressly recognised by the EU as of its own kind—sui generis. The EU manifestly contradicted that by insisting on European Court jurisdiction, thus subverting the constitutional status of Northern Ireland itself. It was even reported that that was the price we would have to pay. The EU continually denied our sovereignty during the negotiations with a wanton disregard of our unique, unwritten constitution and sovereignty, which it is bound to understand because we have been in a relationship within the same legal order for the last 40 years.

[Colum Eastwood (Foyle) (SDLP)]

Will the hon. Gentleman give way?

[Sir William Cash]

I do not have time, I am afraid.

At the same time, there have been a number of UK precedents, which I have explained already. I do not have the time to go into them; I will attempt, as other Members will have to, not to go into huge detail, but I will give a few examples. In 1945, a Finance Act passed by the Labour party overrode international law. The same applied to the Indian Independence Act 1947 and the Burma Independence Act 1947. In fact, in the case of India, more than 400 treaties were broken.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

I assure the hon. and learned Lady that I am not giving way. I am very happy to do so normally, but not today.

Furthermore, a Conservative Government, in the Income and Corporation Taxes Act 1988, provided clauses that were notwithstanding anything contrary to the arrangements of the Act. It goes on. It is a substantial list.

I will go further. Those who are interested can look at my previous contributions to other debates, where I extensively describe the myriad occasions when the EU itself has broken international law and, furthermore, when EU member states have egregiously broken international law and admitted it in their own Parliaments. For example, Helmut Schmidt, in the Bundestag, could not have been clearer, going through every single treaty that Germany deliberately broke in defence of its own vital national interest, because that is itself a reason why national law can have a degree of predominance over international law.

National and constitutional law, in certain circumstances —where it affects sovereignty, as in this case in the United Kingdom—can prevail against international law. I am extremely grateful to my good friend, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who I know recognises this. It has taken a bit of time for us all to come to terms with that, because it is a bit complex, but the reality is that it is well established in international law itself. The German federal court confirmed this as recently as 2015. I quoted the court in a previous debate, so it is already on the record that it is well within the framework of international law for a country—a democratic country, I hasten to add—to actually override international law in its own vital national interest, and most specifically, as in this case, on questions of sovereignty.

I will therefore just touch on my exchange with the hon. and learned Member for Edinburgh South West (Joanna Cherry). With regard to Miller 1, the Supreme Court unanimously confirmed that, under the dualist approach, treaty obligations only become binding in the UK system to the extent that they are carried out in domestic legislation, and that whether to enact or repeal legislation, and the content of that legislation, is for Parliament alone.

This principle was approved unanimously by the Supreme Court in Miller 1.

[Sir Robert Neill]

indicated assent.

[Sir William Cash]

My hon. Friend is nodding his head because he knows this is the case.

--- Later in debate ---

[Edward Miliband]

There is an important point here. To take the example of animal welfare or food safety, those powers remain devolved, but they are devolved in name only, because by imposing the minimum standard as the lowest standard for all legislatures, those powers are seriously undermined. I have to say to the Business Secretary that I fear that the Bill will only strengthen the hand of those who want to break up the UK.

On international law, nobody should be in any doubt about the damage already done by the Bill. I do not blame the Business Secretary, but this law-breaking Bill has been noticed around the world by not just the Irish Government, not just our EU negotiating partners, and not just Joe Biden and Nancy Pelosi, who the Government can dismiss. Even President Trump’s Northern Ireland envoy Mick Mulvaney visited the Republic of Ireland yesterday and said:

“I think anyone who looks at the situation”—

with the United Kingdom Internal Market Bill—

“understands there could be a series of events that could put the Good Friday Agreement at risk.”

When the Trump Administration start expressing concern about your adherence to international agreements and the rule of law, you know you are in trouble. That is how bad this Bill is.

[Sir William Cash]

Will the right hon. Gentleman give way?

[Edward Miliband]

I am going to carry on.

It is important to hear the words of the right hon. Member for Maidenhead (Mrs May) in her coruscating and brilliant speech in Committee. Government Members are rolling their eyes about the former Prime Minister. She said that,

“the Government are acting recklessly and irresponsibly, with no thought to the long-term impact on the United Kingdom’s standing in the world.”—[Official Report, 21 September 2020; Vol. 680, c. 668.]

That is what a former Prime Minister—the previous Prime Minister—of this country said.

[Sir William Cash]

Does the right hon. Gentleman accept that in fact, in the past, there have been substantial breaches of international law by Labour Governments as well as by other ones? Furthermore, does he believe that the Iraq war was lawful?

[Edward Miliband]

This is unprecedented in the following sense: the Government are coming along and breaking an international agreement they signed less than a year ago. I have heard the hon. Gentleman, and I have read the debates on the issue, and he certainly has not produced an example in any way remotely similar to what is happening in the Bill.

I want to develop my argument, because an important point has been understated in the debate since Second Reading. The clauses are not simply wrong, as so many hon. Members on both sides of the House recognise; they are not simply unnecessary, because the protocol has mechanisms to deal with the issues at hand; but there has been a notable event since Second Reading that has exposed the Government’s strategy even further, which is the cancellation of the Budget.

Let us recall the Government’s fig leaf designed to hide their embarrassment. The issue was at-risk goods travelling from Great Britain to Northern Ireland. The whole case made by the Prime Minister was that the Bill was necessary to prevent the blockade of goods from GB into NI. The threat was described as “extraordinary” and the very reason to break international law, but the measures, as we now know, to break the law in this Bill, do not, as he had to admit at Second Reading, deal with the issue of GB to NI trade.

The excuse was that GB to NI issues would be dealt with in the Finance Bill, as was explicit in the statement put out on 17 September by the Government, which said:

“Further measures will be set out in the Finance Bill, relating to tariffs on GB-NI movements, including the same Parliamentary process that the Government has committed to for the UKIM Bill.”

In case it escaped the House’s attention, the Budget has been cancelled and so has the Finance Bill. So where now is the mechanism to deal with the extraordinary threat that we face as a country? Can anyone on the Government side tell me where it is? The country faces an extraordinary threat that has to be dealt with, but the legislation we are considering does not cover it, nor does any legislation even in view.

I will give way to the Business Secretary if he would like to tell me how this will be dealt with. There is no answer—he would prefer not to. I do not blame the Business Secretary, because let us be clear what has happened here: the legislative hooligans in Downing Street who dreamed this up have moved on to something else, but the Bill is still with us, and so we are going through all this pain, all this grief, all this damage to our international reputation, and the central argument on which it is based is not even covered by any legislation.

What are we to conclude? Was this all a charade—a “dead cat” strategy, as I think it is known—to distract attention? Was it a trap designed to pretend that we were rerunning remain versus leave? Was it perhaps a Government strategy to pretend to their Back Benchers that the Government are willing to break the law in order to soften them up on accepting concessions in the endgame of the negotiations with the EU. Whatever the excuse, all of them reflect so badly on the Government.

We are at a grave national moment—our gravest for a generation, because of coronavirus. We are trying to conclude a Brexit deal, which is vital for our country. We need new trade deals, in which our word is our bond. Yet the Government play these appalling games, thinking so little of their Back Benchers that they think they can pull the wool over their eyes; willing to resile from a treaty that they signed, for a day’s headlines; playing fast and loose with the law for short-term gain.

The Bill will get its majority and go to the other place, but their lordships should know that, across this House, there is deep concern about it. That has been shown again and again by good people on both sides of the House in the last few weeks. I urge the other place to bring the Bill into compliance with the rule of law and salvage our reputation. But we in the House of Commons have a chance tonight to show our concern again. It is an indefensible Bill. It damages our country. It is wrong and self-defeating. I urge Members on all sides to oppose it tonight.

--- Later in debate ---

[Sir William Cash]

The right hon. Member for Ross, Skye and Lochaber (Ian Blackford) who has just spoken said he was going to push his amendment. I think he pushed the patience of this House to breaking point.

In the very few seconds I have left I will simply say, with regard to the speech by the right hon. Member for Doncaster North (Edward Miliband), that he completely failed to answer my question. The Labour party has, in fact, on a number of occasions broken international law. He knows it. He could not answer, and did not attempt to answer, whether he thought the Iraq war was lawful.

The bottom line is that the completely irrelevant questions raised in relation to breaches of international law are completely unfounded. The reality is that this country has on occasion in the past, in its own national interest for the sake of preserving its sovereignty and its economic sovereignty, had to occasionally break international obligations. There is no doubt about that, but equally and by the same token this Bill is about the sovereignty of the United Kingdom and preserving the economic sovereignty of the internal market and doing what it can to preserve the Union in all its character and territoriality. The right hon. Member for Doncaster North shakes his head, but the bottom line is that we have now got this Bill through. It has gone through with 100 votes time and again. That proves the point. This is the endorsement of the referendum. This is the endorsement of the manner in which the British people voted in the general election and that is the truth. We have won, and we will continue to pursue the independence of this country and to maintain its sovereignty.

United Kingdom Internal Market Bill

William Cash Excerpts

Tuesday 22nd September 2020 Commons Chamber

[Drew Hendry]

You will notice, Dame Rosie, that it is a very uncommon mistake I have made, in that case. I take the scolding in good grace. Thank you, indeed.

Perhaps the hon. Gentleman would like to ask his colleagues why they voted five times on the Trade Bill and the Agriculture Bill against protecting these standards. We know—the Scottish public know—what this is all about. They are not daft; they see this. They see that this grubby attempt to make sure that we can get a deal—any deal as long as it is not with the EU—is the reason these things are being sacrificed.

This Tory UK Government do not care about the views of the experts that we have quoted here today or of the groups that are concerned about these issues. They do not want to hear those views. They simply want to oversee the biggest power grab in the history of devolution.

Clause 48 reserves state aid. We know that state aid provisions will mirror those of the World Trade Organisation, making an already diminished deal option with the EU even more difficult. Incidentally, Tory claims about the constraints imposed by EU state aid rules are inevitably always exaggerated. Automatic approvals applied to nearly 95% of state aid last year, and this year the EU acted swiftly to sign off on a raft of Government help to aid industry during the pandemic.

[Sir William Cash (Stone) (Con)]

Is the hon. Gentleman aware of the manner in which authorisations are given? Stating that it has been approved is one thing, but the way in which it has been arrived at—behind closed doors and without anybody knowing how it has been done—is a really big problem.

[Drew Hendry]

It beggars belief that this kind of intervention attacking EU procedures is being made when the Bill will directly give powers not only to the UK Government to overrule devolution, but to the Secretary of State himself to overrule essentially anything that he wants to. I will return to that point in a moment. The Bill directly undermines the Scottish Parliament’s ability to protect Scottish farmers’ livelihoods. Cheaper meat will drive out quality production. The ability to choose the highest standards in environmental protection and in building control and the ability to keep our NHS and water in public hands will all be affected. The UK Government want private companies to be given a guaranteed right to trade unhindered in Scotland. The UK Government claim that there are exclusions from the principles of non-discrimination, but that is absolutely blown out of the water by the fact that the Secretary of State will retain

“a power to alter these exclusions.”

The hon. Member for Stone (Sir William Cash) wants a backdoor deal. Well, there is one for him; he can do it in the Cabinet Room.

[Sir William Cash]

Will the hon. Gentleman give way?

[Drew Hendry]

No, I will make some progress on this.

That is regardless of the views of the people of Scotland, Wales and Northern Ireland. It does not matter what the devolved Assemblies or Parliaments are saying, that is the ability that the Secretary of State has.

The Law Society Of Scotland warns that clause 8(7) empowers the Secretary of State to amend by adding, varying or removing an aim in clause 8(6). This is a very wide power, and regulations are subject to the affirmative resolution procedure. Unlike other order-making powers earlier in the Bill, the Secretary of State is under no obligation to consult the devolved Administrations before making such regulations. The Government should explain why clause 8 adopts a different approach from the earlier clauses in this respect.

The real threat to trade comes not from what could have been agreed on common frameworks across the nations of the UK, but from this Tory Government’s incompetent handling of the process to agree a deal with the EU. Their lofty ambitions are now, at best, low deal or no deal following their decision to remove Scotland against its wishes, and of course the rest of the UK, from the EU, a prosperous and highly integrated market no less, with an integrated trade and regulatory partnership of 450 million customers, along with the associated social vandalism that this has inflicted.

By the way, we hear that we should trust this Government. Just in case anybody is under the illusion that we can rely on the altruism of Westminster, they should listen to the words of Tory Luke Graham, who lost his seat in this place in December. Even he could see that it is foolish to do so. He said in this very Parliament:

“To reiterate my point and the frustration that I have felt since I have been in this place, sometimes…it appears that the Treasury is not so much a British Treasury but an English Treasury, which becomes incredibly frustrating for people trying to fight for projects in Scottish constituencies.—[Official Report, 15 January 2019; Vol. 652, c. 368WH.]

That was a Tory MP who was in this House until December last year.

The UK Government are breaking international law and devolution. The mutual recognition mechanism fires the starting gun on a race to the bottom on standards, with the UK Government imposing those standards on Scotland against our will. This Bill oversees the biggest power grab since the re-establishment of the Scottish Parliament. As I said earlier, the real threat to trade is the looming no deal or low deal that the Government are railroading through with the EU. It is now clear for all in Scotland to see that the only way to represent the public needs and to protect our way of life and our hard-won Parliament is through becoming an independent nation, taking our own place as an equal partner within the European Union.

[Colum Eastwood]

It is, of course, a pleasure to serve under your chairmanship, Dame Rosie. Did I get those words right? I think I did.

In my view, this Bill is unfixable. It is probably unamendable. It is an assault on international law and an assault on devolution, and I think it is the beginning of the biggest act of economic self-harm for many a year. Our proposed amendments address the fact that the Government have, once again, forgotten about—that is a generous way of putting it—frontier and cross-border workers in Ireland. That is why we have tabled amendments 81 to 85, in my name and that of my hon. Friend the Member for Belfast South (Claire Hanna).

Before I get on to those specific amendments, I want quickly to address the amendment in the name of the hon. Member for Bromley and Chislehurst (Sir Robert Neill). The amendment seeks to prevent from coming into effect, unless actively approved by the House of Commons, those parts of the Bill that give Ministers the powers to implement, against international law, parts of the Northern Ireland protocol. I fully believe that the hon. Gentleman is making a genuine attempt to inject some accountability into this process. However, let me tell hon. Members that people in Northern Ireland have been watching and they have absolutely no faith that this Government have one iota of interest in accountability, international law or the interests of people where I come from.

[Sir William Cash]

It seems to be generally understood that my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) will withdraw his amendment. I do not know whether that has been stated formally yet, but I wonder whether the hon. Gentleman could take into account the fact that that appears to be the case. I do not know whether Mr Speaker is aware of that. Sadly, my hon. Friend is not in his place at the moment, so it is rather difficult for us to be absolutely precise. I wonder whether I could have a ruling from the Chair on whether the amendment has been withdrawn.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

It is important to remember, as the hon. Gentleman has said, that Sir Robert Neill is not in his place at the moment. It is a question of the amendment having to be moved and withdrawn, neither of which has happened, so I think we need to wait until he is here. At the moment, we work on the assumption, obviously, that it is something that can be discussed.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Order. It may be helpful for me to clarify a point for the hon. Member for Foyle (Colum Eastwood). Under the programme order that the House agreed on 14 September, today we are debating: part 1, “UK market access: goods”, except clause 11, which was decided yesterday; part 2, “UK market access: services”; part 3, “Professional qualifications and regulation”; and part 7, “Final provisions”, except clause 50, which was decided yesterday. We therefore need to focus on amendments and new clauses relating to those parts of the Bill. It is quite important that we do not re-run the debates that were held last week and yesterday, which were on: part 4, “Independent advice on and monitoring of UK internal market”; part 6, “Financial assistance powers”; and part 5 “Northern Ireland Protocol”. Sir Bob Neill’s amendment was, in fact, debated yesterday—for the clarification of the hon. Member for Foyle. I call Sir William Cash.

[Sir William Cash]

After that very helpful clarification, I have to say that the issues that I was going to raise would have been related to the questions raised by the hon. Member for Foyle (Colum Eastwood). There appears to be some misunderstanding. In these circumstances, I understand that today we will not, in fact, be discussing amendment 66 in the name of the Secretary of State for Business, Energy and Industrial Strategy, my right hon. Friend the Member for Reading West (Alok Sharma). May I have your ruling on that, Dame Rosie?

[The First Deputy Chairman]

The hon. Gentleman is quite correct in saying that.

[Sir William Cash]

I shall refer, then, to the more general questions about the state aids that I have just heard and that I mentioned in an intervention.

I wish to explain the rationale behind the remarks that I made on Second Reading, when I spoke for only four minutes, and the short speech that I made yesterday dealing exclusively with questions relating to international law and the breaking of it, as is alleged by some. I made my position entirely clear then and wrote a piece published on “ConservativeHome” that has been seen and commented on by many people—with some approval, I am glad to say—and in The Daily Telegraph online. That is now out there, on the record. However, the question of state aids to which I referred in those articles was not really examined in a way that I regard as satisfactory by the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry). I say that because he made a lot of points about the manner in which the results would take place, in his view, under the new Office for the Internal Market, the new internal market arrangements and in the context of devolution.

At an earlier stage, with respect to the issue of the economic prosperity of the United Kingdom as a whole, which obviously includes the important issue of devolution, including our wanting to be properly aware of the issues for Scotland, I mentioned Adam Smith as a good example of a great Scot who really understood the nature of free trade. The problem is the EU itself. We must succeed in ensuring that the state aids policies of the EU no longer apply to the United Kingdom, including Scotland in this context. That is so important that, in the interests of the prosperity of Scotland, no attempt should be made such that Scotland could somehow find itself still following EU state aid rules. That is the burden of what I would like to address.

I have spent 35 years serving on the European Scrutiny Committee. I am Chairman of it now and have been for the past 10 years. I know a little bit about state aids and mentioned yesterday, in passing, my experiences, given the fact that I have been around for a certain amount of time, during the 1950s and ’60s, when I was brought up in Sheffield and witnessed the manner in which the European Coal and Steel Community acted. Of that supranational body, even Sir Con O’Neill, who was the prime negotiator for the United Kingdom in taking us into the European Community, as it was at the time, said in a book that I read fairly recently that nobody in Government really appreciated just how important, significant and, I would say, dangerous it was for the whole concept of state aids and all the things that went with the supranational policies that were imposed as a result of our membership of the European Community and the European Coal and Steel Community, and the effect it would have on jobs and businesses in England, Scotland and Wales.

Of course, in those days devolution was not an issue, but the comparison certainly still applies. The jobs of many people in the coal mining and steel industries in Scotland were decimated, as they were in Sheffield. The greatest and most important part of the world steel industry was in Sheffield. As a result of matters into which I do not need to go in detail, the bottom line is that the grandchildren of the coal miners and steelworkers, whom I got to know extremely well—I think I mentioned in an earlier debate that I played cricket and rugger with them; I knew these people—remember all this.



If we put the red-wall seats on a transparent map and placed it over a map of England, in particular, and Scotland, we would find a direct correlation with the seats where people even would not vote for the UK Independence party but voted Conservative because they knew that leaving the European Community was something they wanted to do, because their grandparents had been decimated by how state aid worked. State aid is not just about subsidies; it is also about taxation, incentives, free ports, carbon emissions and the whole of our trading relationships internationally. It is the most important specific question, which is why I congratulate the Government on what they are seeking to do, although I may prefer it to be a little tighter, but let us leave that for the moment because we have a Report stage to come. I simply say that the people of Scotland know and understand the impact of the policies of state aids in shipbuilding, for example, on Harland and Wolff, in Northern Ireland. These people are all well aware of the almost irreparable damage done.

--- Later in debate ---

[Jonathan Edwards]

rose—

[Sir William Cash]

Just a moment. This refers back to what I said earlier when the hon. Member for Inverness, Nairn, Badenoch and Strathspey wanted to intervene on me to suggest that somehow or other I was exaggerating the issue, as I am certainly not. The reality is that the EU takes all these decisions behind closed doors; nobody really knows how the authorisations are made; and—surprise, surprise—we could not stop any of those ports regulations, as indeed we could not stop any of the state aids authorisations. That is the essence of it, and he will not be able to explain to the people of Scotland why they will not benefit if the day comes when he gets his way, which I do not think he will, by our ending up removing the state aids from the EU. The people of Scotland would benefit so much by having a system in place that they can deal with on the Floor of the House.

The hon. Gentleman puts forward capable arguments. I notice how he weaves his way round these subjects. That is a compliment, in a way, but it does not alter the fact that the people in Scotland will suffer grievously if they continue to have EU regulatory arrangements inflicted on them. The Bill ensures that they will not. I dare say that the Minister is noting what I am saying—I hope that he is—because it is important to understand the damage that has been done.

[Liz Saville Roberts]

I have heard the hon. Gentleman’s arguments before and I understand the point he is coming from, but does he appreciate that the Bill would reserve powers out of the Government of Wales Act 1998 that would otherwise see powers over state aid going to Wales? Does he not see the possibility that there could be another point of view?

[Sir William Cash]

I am always extremely aware of other points of view—I have been subjected to them for the past 35 years in this House, but so far they have not prevailed. I am clear in my mind about the benefits of the United Kingdom as a whole, on all these matters—there are so many aspects that we do not have time to go into today—but state aid is central to the whole question of maintaining our spirit of enterprise. It is central to the degree to which we can provide tax incentives to facilitate and encourage UK jobs for the whole UK, including Scotland. It is central to our ability to encourage competitiveness, based on our own laws, and level up throughout the entire country, including Scotland. This is fundamental stuff.

[Drew Hendry]

The hon. Gentleman discussed the situation in the 1950s and ’60s, and I know that he likes to dwell on that era. I note that he conveniently airbrushed Margaret Thatcher out of the demise of the coal industry in Scotland. For his information, we have trust ports in Scotland, too. Does he get the irony of arguing about another body’s interference in an elected Parliament’s ability to make decisions while he is making this argument? That is exactly what is happening to the Scottish Parliament through the Bill.

[Sir William Cash]

That is interesting, because the counterpoint to that—the hon. Gentleman would expect me to come back with this—is to ask why on earth the people of Scotland would want to subjugate themselves to the European Union system, which we are escaping from, when it has such deleterious and tragic consequences for so many people and jobs in Scotland, as well as in Wales and England. He argues that Scotland can do this better, but I tell him that the consequences of staying in the European Union would be extremely damaging.

We have made it clear that the laws would continue under the protocol, as we discussed yesterday. I know that from the advice and analysis that we are doing in the European Scrutiny Committee, and the Cabinet Office Minister is coming to see the Committee very soon to discuss all these questions. Given the manner in which the European Union functions—as I have said, behind closed doors and without even a transcript—and with the wholly unelected European Commission making the authorisations, the system is very bad news for Scotland. It will be no substitute for having these things handled in an objective and down-to-earth way by the Minister; I have no doubt that he will ensure that the people of Scotland are looked after properly.

This is a bread-and-butter issue for those who work in our economy. It is about putting food on the table, into the indefinite future, for all voters, whether they are Conservative, Labour, DUP, SNP or others. It is similarly important for those voters’ representatives in this House. If Members vote against the Bill, they will have to explain to every one of their constituents, including those in Labour constituencies—I am not looking at anybody in particular or making a point about that, because we represent the whole country through different political parties—why our economy and voters’ jobs and businesses have continued to be undermined by unfair and discriminatory EU state aid and other uncompetitive lawmaking.

The Bill will ensure, among other things, that the UK escapes unfair discrimination under the EU state aid regime, which I mentioned yesterday in relation to the steel industry. The voters in the red wall know this, as do their parents, including those in coalfield communities. I became vice-chair of the all-party parliamentary group on coalfield communities—this is going back five or 10 years—because I understood, as did many Labour Members from Mansfield and all over the country, how important those communities are. I even got up the other day and spoke in the House about pension arrangements for coalminers. We need to take account of the fact that the state aid rules cause total misery and tragedy, and ultimately the destruction of our coal and steel industries.

[Jonathan Edwards]

As someone who represents two coalmining valleys, I think the hon. Gentleman might be guilty of some historical revisionism. The French, the Germans and the Spanish also went through a similar transition in coalfield communities, but they did it over a number of decades. It was a decision of the British Government to bring a guillotine over the coal industry and decimate it in one go, and that was a Conservative Government.

[Sir William Cash]

I voted against my own Government and nearly defeated them on the question of the closure of pits around Stoke-on-Trent. I actually challenged Arthur Scargill on a platform in Hanley and grabbed the microphone from him. It was recorded by BBC and apparently won an award. The issues to which the hon. Gentleman refers are very important, but I do not agree that this is revisionism at all. It is what happened and I objected to it.

Let us consider state aid. I will give the figures: Germany received as much as £4 billion a year in grants and subsidies, while our coal and coalfields in the United Kingdom were languishing. I know that coal is not popular now in quite the way it was, but none the less the principle is there: the state aid policy discriminated in favour of Germany and France. It is part of the deal: the European Coal and Steel Community, and supranationality—that is what it is all about. Our people in those communities were not compensated by grants and regional aid under various EU schemes and handouts, and they have never forgotten it.

Furthermore, the Court of Auditors reports that we debate in this House, although not on the Floor of the House, which we should, have genuinely never been signed off. Almost never has a Court of Auditors report ever been signed off. The money never got to those who really needed it. That was compounded by a wave of scandals—for example, over milk quotas, backhanders and fraud—all of which has been well documented over the years. The list is endless. In any case, our taxpayers—from the whole United Kingdom—paid for those inadequate grants through our own massive contributions to the EU of up to £18 billion a year and rising. If we do not fully disengage, this is what we—the people of Scotland, too—will be suffering from.

The Bill is therefore about the economic future of our future generations. It is about a new competition law administered on our own terms in our own country by our own courts. It will prevent our professional working voters from being trapped indefinitely in an EU economic satellite run by the unelected European Commission and Council of Ministers. We will have no veto. It will be imposed on us and it is an outrage that that should be the case. That is why the notwithstanding clauses, which I played some part in developing, are a matter of vital national interest and sovereignty. Otherwise, we will continue to be subjected to EU laws on terms and conditions imposed on us by them. The bottom line is that, for the vital national interest of this country, that situation cannot be allowed to continue.

I believe that my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) perhaps understands that a little better as we move forward. Yesterday, I got the impression that although he was very concerned about breaking international law, the reality is that there are circumstances—my exchanges with him yesterday are informative on this point—about which he is now very aware, as are other Members who signed that amendment, which as yet I do not think has been completely disposed of. This is about our sovereignty and our ability to maintain political and economic sovereignty and to save jobs, develop them and create enterprise.

This is not a small matter; this is monumental. It is all very well for the hon. Member for Inverness, Nairn, Badenoch and Strathspey to talk about this in terms of independence, but people will not thank him, and they will not thank the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) or anyone from any other part of the United Kingdom when the truth comes home to roost, which is that the EU will not allow us to compete favourably or at all. Its cardinal principle is to make sure that we cannot compete with it, and that is a reason in itself why we have to stand firm on the whole question of the notwithstanding clauses.

[Liz Saville Roberts]

Diolch yn fawr, Dame Rosie. It is an honour to follow the hon. Member for Stone (Sir William Cash). I rise to speak to amendment 9 to clause 54, which I tabled with my Plaid Cymru colleagues and the hon. Members for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry), for North Down (Stephen Farry), for Belfast South (Claire Hanna) and for Brighton, Pavilion (Caroline Lucas). This amendment seeks to rectify the anti-democratic nature of this shabby Bill by giving the devolved legislatures the opportunity to hold a vote on the Bill before its provisions become law. It would also ensure that no additional powers were reserved to Westminster through the Bill unless the devolved legislatures of Wales, Scotland and Northern Ireland gave their explicit consent.

United Kingdom Internal Market Bill

William Cash Excerpts

Tuesday 15th September 2020 Commons Chamber

[Drew Hendry]

That sort of attitude towards what should be co-operation over our common interest underlines the contempt that has been shown for the devolved nations. It is yet another example.

As I have said, we cannot and will not accept this legislation in any form. All the Bill does is simply and plainly underline why the democratic choices that represent Scottish people and the protection of our Parliament can only be delivered through the powers of independence for Scotland, so that it can take its place as an independent nation among the other independent nations of the world.

[Sir William Cash (Stone) (Con)]

The arguments that I have just heard from the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) are, in my judgment, completely unjustified. [Interruption.] He might expect me to say that; it is hardly surprising. The reality is that the Bill is intended to provide for independent advice and monitoring through the creation of this internal market within the Competition and Markets Authority arrangements. What the provision clearly states—far from it being just a bunch of nodding donkeys, which is more or less what the hon. Gentleman is saying—is that it will be a non-ministerial department, albeit sponsored by the Department for Business, Energy and Industrial Strategy, and it will have an enormous amount and range of experience and knowledge brought from its predecessor.

[Drew Hendry]

I am grateful to the hon. Gentleman for giving way, especially as I just recently concluded my remarks, but can he confirm two things for me? Who will be on the body, and who has—he will know the answer to this—the final say over this body?

[Sir William Cash]

What I can say for sure is that it will not be the European Union, and that summarises the argument in a nutshell. It is something I spoke about in the debate only yesterday, where I made it entirely clear that there is one thing we have to be absolutely clear about, and this Government, as compared with the previous Administration, have made it clear. In relation to that vast range of state aids that I mentioned yesterday—they are effectively decided by the European Commission and imposed on our own companies and our own internal economic sovereignty at the moment, but we are now going to insist on retrieving them, and we have retrieved them by leaving the European Union—the position is simply this: the manner in which the European Court and the European Commission operate needs to be revised, reviewed and abandoned for the purposes of ensuring that in the United Kingdom, we have a competition policy that enables us to be able to compete fairly, not only throughout the whole world, but also in relation to the European Union.

It is well known that the question of state aids, which goes across such a wide range of matters, as I mentioned yesterday, causes an enormous amount of problems in many sectors of the British economy. We have to be able to compete effectively. We have just heard a statement on coronavirus. The damage that has come about as a result of this uncontrollable—or virtually uncontrollable—disease, which has infected so many people, affects the operations of our businesses and has created a great deal of economic dislocation. We will need to be able to compete effectively throughout the world. This is a serious matter about a serious issue. What we cannot have, as I mentioned yesterday, is the situation that we have at the moment, which is where authorisations are given by the European Commission that either create discrimination against British businesses or have the perception or the potential for doing so. They will affect the voters in Scotland—and the voters in Sheffield, if I may say so. I was brought up in Sheffield. I saw what the European Coal and Steel Community did to the British steel industry. [Interruption.] I hear what the hon. Member for Sheffield Central (Paul Blomfield) says. The reality is that those businesses were driven out of business by, in many cases, unfair subsidies and unfair state aids that were given to other member states. I can give an example. I happened to know many people who worked at the coalface—I used to play cricket with them when I played for Sheffield—and I can tell Members that the Sheffield steelworkers, whom I also played with on occasion, sometimes it was rugger, found that they were very severely jeopardised by the massive state aids that were given to the German coal industry—it was as much as £4 billion—and authorised by the Commission. For a variety of reasons, we did not get the same kind of treatment here in the United Kingdom. This is all part of the problem of how to have fair and reasonable competition.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

Let us come to the here and now, looking at this Bill. Say, in the future, the Scottish Government want to support the Scottish farming industry, but the UK Government have decided that, as free marketeers, they want to pool all support for their farmers. Under these proposals, is it not the case then that Scottish state aid for their farmers would be ruled illegal and they would not be able to trade in the UK internal market?

[Sir William Cash]

As far as I am aware, the answer is no. The Office for the Internal Market will not be able to override decisions made by the devolved Administrations. What has happened—

[Alan Brown]

rose—

--- Later in debate ---

[Sir William Cash]

Just a minute. We have proposed in this Bill that monitoring and advice regarding the UK’s internal market should be provided on a non-binding basis by the OIM. That will support the development and monitoring of regulation across the UK.

[John Redwood (Wokingham) (Con)]

Will my hon. Friend confirm that the Bill says that these reports, which are not in themselves binding, are made to the Scottish Parliament as well as to the United Kingdom Parliament? Because of course, the Scottish Parliament will have enhanced powers as a result of our leaving the EU just as the Union Parliament will.

[Sir William Cash]

That is absolutely right. In fact, I argue that the provisions of the Bill as a whole maintain the Union, which is absolutely essential to the future of our competitiveness internationally. I do not expect SNP Members to agree with me, but what I am saying is that I actually believe that they should reflect very carefully on the advantages that come from being part of a Union. There are so many people—our friends and relations—who come from different parts of the United Kingdom and who work in different parts of the United Kingdom. When they are doing is contributing to the welfare of the Union as a whole.

[Stephen Doughty]

I am a Unionist, too. I believe in our Union and I believe that we are stronger together, but the reality is that the approach taken by this Government with this Bill disrespects the devolution settlement and rides roughshod over the wishes of the Welsh Government, which, let us not forget, is run by a Unionist party, Welsh Labour, but one that believes in devolution. So why does the hon. Gentleman think that the Welsh Government, who want to co-operate with this Government in finding common frameworks, are so unhappy with the approach taken in this Bill?

[Sir William Cash]

If Euro-integrationism were to get in the way, that would be a problem, but on the question of whether the UK Government are engaged in some kind of power grab while depriving the devolved Administrations of a say, the answer to that is no, too.

[Joanna Cherry (Edinburgh South West) (SNP)]

Will the hon. Gentleman give way?

[Sir William Cash]

Wait just a minute. The Office for the Internal Market’s provisions will be available to all four Administrations and legislatures on an equal and purely advisory basis. It will provide information to support separate political or legal processes, to resolve any disagreements and to enable intergovernmental engagement. Subject only to my overriding concern that in no shape or form should we end up having a continuation of European Commission decision making, authorisation processes and the rest, which have severely inhibited our capacity to compete effectively throughout the world—and for that matter within the United Kingdom as a whole—I believe that the arrangements here will respect the devolved Administrations on the basis that I describe.

[Joanna Cherry]

To take the hon. Gentleman back to his comments a moment ago, when he lectured myself and my colleagues on the importance of being part of the same political union in order to trade freely and competitively, if that applies to Scotland in relation to the United Kingdom, why does it not apply to the United Kingdom in relation to the European Union? Can he explain that?

[Sir William Cash]

It is a good question. In fact, I will answer it the other way: why on earth would the people of Scotland—

[Joanna Cherry]

No, answer my question.

[Sir William Cash]

No, I am going to put it the other way around and do it my own way. Why on earth would the Scottish people, in their desire to obtain independence from the United Kingdom, actually want to surrender to the European Union, which discriminates against us day in, day out?

[Joanna Cherry]

I am going to answer the hon. Gentleman’s question. The Scottish National party wants Scotland to remain part of the European Union—a single market of more than 500 million consumers. The SNP does not wish to put up trade barriers with England. It is his party that wishes to enforce upon us trade barriers if we dare to exercise our democratic right of self-determination, which he has spent the last 40 years banging on about in this House for England.

[Sir William Cash]

If I may say so, not unsuccessfully.

[Joanna Cherry]

That remains to be seen.

[Sir William Cash]

I am very happy to remain to be seen and to be heard. I will give an example of a company in my constituency that, because of certain economic problems, found that it needed help and wanted some state aid and grants and things of that kind. It so happened that the company owned another company that happened to be in Ireland, and strangely enough, when it came to it and applications were made—I do not know all the details, but this is the general thrust of it—the company in the United Kingdom that needed the benefit of state aid and subsidy unfortunately did not get it, but the company in Ireland did.

The point I make is simply that it seems most peculiar to me that a system that is completely fair should have what I regards as such wanton discrimination in favour of one part of the European Union as compared to another.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

Just a minute. I think the hon. and learned Lady is probably exhausting herself by her interventions. I gave the House but one example yesterday, on the issue of Lufthansa. There is a body of opinion and evidence demonstrating the serious discrimination that goes on, although I make the point that European Court of Justice cases on this have gone both ways. However, I think it is very important that we are absolutely clear and certain—because it affects jobs, businesses and people who work for the companies concerned—that the national interests of the United Kingdom, in our mutual interests, are reflected in the decisions taken by whatever the competition authority may be. I know that the previous Administration had in mind the idea of providing for some special reserved powers, which this Government have now decided should be displaced to ensure that we have a proper system—with proper external and internal advice that will be provided by the new Office for the Internal Market within the Competition and Markets Authority—in order to guarantee that we can be world-beating competitors. We have to be able to trade across the world as we have done.

If I may say this to the very distinguished Scottish National party Members, I am sure that they will not forget that Adam Smith was the Scotsman who defined the whole nature of free trade and the ability to compete effectively. The tradition in Scotland has always been to support the ideas of fair and free competition, and that is the essence of these provisions. I am afraid that I cannot come up with an example from Wales, but I am sure there is one. What I can say is that the objects of the Office for the Internal Market will not override decisions made by the devolved Administrations. That is my understanding, and we will hear what the Minister has to say.

--- Later in debate ---

[Neale Hanvey]

I thank the hon. Member for raising yet another very helpful point. The problem is not whether the quality of Punk IPA will be consistently high in the north and the south, or even in Europe if it is still able to import it; the problem is that the quality at the lowest level will have to be accepted everywhere. It is not the highest level that is the issue; it is the lowest level. I will now try to make progress. I hope that it is now beginning to make sense, Dame Rosie, why I had that preamble.

As I said, devolution is the settled and robustly expressed will of the Scottish people, and it is for them alone to decide if it should ever be restricted or changed in any way. If this law had been in force during the past 20 years of devolution, it would have affected Scotland’s ability to prioritise important issues like free tuition for Scottish students or to set important health policies such as minimum unit pricing for alcohol and introducing the smoking ban before other nations. Those would all have been at risk and may not have happened. Looking forward, there are things like the procurement of changes to food standards that can be imposed on Scotland as devolution is reduced to the powers of compliance, complicity or subjugation. Can you imagine the howls from Government Members if the EU had proposed such legislation? Yet they are content to do this to Scotland, and then tell us that we should be grateful. What a charade!

Well, Scotland is not buying it and we are having none of it. This legislation strips powers of decision making away from our democratically elected representatives in Holyrood. In an email to MSPs on 14 September, the Royal Society of Edinburgh warned that, while final decision-making power ultimately would remain with the UK Government, the use of that authority by the CMA against the wishes of devolved Administrations

“would constitute a failure of intergovernmental relations”.

The reality is that part 4 grabs the powers of devolution and gives them to an unelected, barely accountable quango. The Bill grabs the powers of devolution, animal welfare, forestry, voting rights, food standards and energy—all currently the purview of the Scottish Parliament. The Government say that they are empowering Scotland; the truth is that they are robbing Scotland of democracy itself.

[Sir William Cash]

How does the hon. Gentleman reconcile what he has just said with what the Scottish Retail Consortium has said, which is that protecting the UK internal market means that

“Scottish consumers”

will

“benefit enormously”?

It talks about the importance of the

“largely unfettered internal single market”.

In the consortium’s view, Scotland welcomes the measures to protect the UK internal market.

[Neale Hanvey]

The way that I reconcile it is that I am talking about democracy and the hon. Member is talking about trade, and I would say that democracy is slightly more important than trade.

The Bill would make Scotland’s Parliament and our law meaningless and smash devolution. And what of the protestations of this Government’s man in Scotland and his self-congratulatory talk of a power surge? It is crystal clear now that the only power surging is to the CMA, to the Office for the Internal Market and to the Secretary of State in Scotland.

Terrorist Offenders (Restriction of Early Release) Bill

William Cash Excerpts

Committee stage & 3rd reading: House of Commons & Committee: 1st sitting: House of Commons & 3rd reading & Committee: 1st sitting
Wednesday 12th February 2020 Commons Chamber

[Sir William Cash (Stone) (Con)]

I beg to move amendment 3, page 1, line 8, after “force”, insert

“and notwithstanding the Human Rights Act 1998”

The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

With this it will be convenient to consider:

Amendment 4, in page 1, line 12, after “force”, insert

“and notwithstanding the Human Rights Act 1998”

The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.

Amendment 1, page 2, line 34, leave out “two-thirds” and insert “nine-tenths”.

Amendment 2, page 2, line 37, leave out “two-thirds” and insert “nine-tenths”.

Clauses 1 and 2 stand part.

Amendment 5, in clause 3, page 4, line 2, after “force”, insert

“and notwithstanding the Human Rights Act 1998”.

The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.

Amendment 6, page 4, line 6, after “force”, insert

“and notwithstanding the Human Rights Act 1998”.

The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.

Clause 3 and 4 to 10 stand part.

That schedules 1 and 2 be the First and Second schedules to the Bill.

New clause 1—Review of prison deradicalisation programme—

“(1) The Secretary of State must appoint a person to review the operation of the provisions of the prison deradicalisation programme.

(2) The person appointed under subsection (1) may enter any prison premises in order to scrutinise the operation of the prison deradicalisation programme.

(3) The person appointed under subsection (1) must make a report to the Secretary of State on the operation of the provisions of the prison deradicalisation programme before the end of the period of 6 months after the date on which this Act is passed.

(4) The person appointed must make further reports at intervals of not more than three months to the Secretary of State on the operation of the provisions of the prison deradicalisation programme.

(5) The person appointed under subsection (1) may include in any review or report under this section consideration of the adequacy of resources made available to the prison deradicalisation programme, including resources made available for the supervision of probation and rehabilitation work.

(6) On receiving a report under this section, the Secretary of State must make arrangements to lay a copy of it before each House of Parliament as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings.

(7) The Secretary of State may, out of money provided by Parliament, pay a person appointed under subsection (1), such expenses and allowances as the Secretary of State determines.”

This new clause would require the appointment of an independent reviewer of the prison deradicalisation programme.

New clause 3—Review—

(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 9 to be carried out in relation to the initial one-year period.

(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to the imprisonment for offences of terrorism to conduct the review.

(3) The review must be completed as soon as practicable after the end of the initial one-year period.

(4) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—

(a) produce a report of the outcome of the review, and

(b) send a copy of the report to the Secretary of State.

(5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.

(6) The Secretary of State may—

(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of the review, and

(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of the review (including arrangements for the provision of staff, other resources and facilities).

(7) In this section, “initial one-year period” means the period of one year beginning with the day when this Act comes into force.”

[Sir William Cash]

I have already canvassed some parts of what I am about to say, but there is more to say, for a very sound reason. Parliament is full of opinions and Ministers are full of opinions. Two Ministers are sitting on the Front Bench at the moment, no doubt debating the issue before the Committee, but their opinions are not the law, and nor are those of leading counsel, whether senior Treasury counsel or those involved in academic discussion. I say that really seriously. I have been practising the law since 1967 and I know a little about how the law is interpreted. We saw the Gina Miller case the other day. How many times were we told that there was absolutely no question but that the Government were right in their interpretation? I served as the shadow Attorney General and saw the whole of the Iraq and Peter Goldsmith exercise. We were told over and over again in the House this, that and the other about interpretation—“This is what will happen. This is the way it will go.” That is no way to make decisions on matters of this kind of critical importance.

There are occasions on which the question of interpretation may merely be about a modification of policy; this is actually about saving human life. I repeat that: saving human life. Where it is possible for the House to ensure that human life cannot be unreasonably and wilfully disposed of by people who are intent on murdering for no reason at all, we need to take seriously the question of whether or not we can exclude the courts —because this is Parliament, not the judiciary—from making wrong decisions when matters come before them.

I heard with interest the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and the various cases he mentioned, and I have just heard the Minister refer to the Uttley case. There is also the Hogben case, which was of course in 1985, before the Human Rights Act 1998. Reference was also made to the del Río Prada case. As a matter of fact, the legislation does not depend on an interpretation of those individual cases by way of precedent, and that is not what we should be worried about; we should be thinking about the purpose and scope of the Bill and its objective, which is to do everything that we can to ensure that human life and public safety come first. I do not want this to become an argument about the interpretation of law, which is why I tabled amendment 3 to clause 1.

[Sir Greg Knight (East Yorkshire) (Con)]

On the subject of opinions, does my hon. Friend intend to test the opinion of the Committee, or merely the opinion of the Minister?

[Sir William Cash]

That is an extremely good question on which I have already given an indication. Being a realist, I know perfectly well that this is not a Bill to which an amendment is going to be passed—certainly not today—but I did say that the House of Lords, which is where the Bill is going, is full of lawyers, some of whom I will disagree with and have disagreed with for as many years as I have been in the House, but there are others who will take a different view.

I am interested to hear the views of the House of Lords on the question of my proposal to amend clause 1. The wording of clause 1 currently refers to an offence “within subsection (2)” and a sentence imposed

“whether before or after this section comes into force”,

at which point I propose to insert the words

“and notwithstanding the Human Rights Act 1998”.

The effect of that would be to put a complete bar on the use of the Human Rights Act, by interpretation of the courts, in any attempt, whether it is regarded as misguided or is a matter of culture—there is currently a load of culture in the courts relating to human rights questions that have built up over the whole of my lifetime in the law.

I am deeply concerned that we could allow legislation to go through that could be interpreted in a way that would result in human life being lost and public safety being infringed. That is my concern. [Interruption.] I see the Minister looking at me either apprehensively or with anticipation; I am not sure which it is and I do not really care. What I am saying is that I want certainty. I know that if the words “notwithstanding the Human Rights Act” are brought into the Bill, the effect will be to exclude completely, for reasons that I am about to give, any attempt by the courts to modify the effect that the Bill otherwise would have.

I have other concerns about the Bill that I have already made clear. I do not think that offenders should be considered for release after half or two thirds of their sentence. I have a lot of sympathy for what my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) proposes in amendment 1; he says it should be nine tenths. I do not know whether he will address that point later.

The bottom line is that we should not allow this situation if we can avoid it—and we can avoid it, because we are the Houses of Parliament, and as a result of Brexit, we have just regained an awful lot of our sovereignty. This is more a matter of the European convention on human rights than of the charter of fundamental rights—or, for that matter, of Brexit—but the amendment is an indication of the House’s determination to use our sovereignty to make law that will guarantee that we do not face people losing their life, or public safety being undermined.

If we do not include in the Bill the words that I propose in my amendment 3, I believe—as I said before with respect to the Lee Rigby case—that it is not a matter of if such a thing happens again; it is a matter of when. I concede that this is emergency legislation; that is why I support it, but it requires a full, thorough review, perhaps by the Justice Committee, to ensure that we deal with the issue properly and fully.

I applaud the Government for bringing in this Bill on an emergency basis, but I criticise the fact that the Bill does not go far enough. The Minister is, if I might say so, not a lawyer; he can only have received his information from others who are. He is taking a bit of a punt in saying that the words

“and notwithstanding the Human Rights Act 1998”

are not needed. He does not know that. I say that with not only respect, but knowledge and certainty. It is very difficult even for lawyers to be sure what the impact would be of allowing the Bill through without excluding the Human Rights Act 1998 from it.

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

I thank the hon. Member for giving way, despite my non-lawyer background. I am of course interested in what he says, and have been listening extremely carefully, as he has seen. How does he think his amendment would operate? In particular, does he think it would in any way disapply our ECHR treaty obligations? Even if we passed his “notwithstanding” amendment, could applicants not still go directly to the European Court in Strasbourg? We cannot disapply that route through this amendment.

[Sir William Cash]

I notice that the Minister is reading very carefully from the notes with which he has been provided, and I agree with the sentiment behind them, but I am putting the case in a different way. We are talking about serious questions of human life, and every step should be taken to preserve it. I was originally minded to use the amendment to exclude the European convention on human rights, too. I describe amendment 3 as a probing amendment, but I want proper consideration of it, not just someone saying, “I don’t think the wording would achieve the total effect that the hon. Gentleman would wish it to.”

The risk to human life is serious; we have to take every step to ensure no repetition of the instances of murder and terrorism that we have witnessed, and which, in recent times, from Lee Rigby onwards, have become more and more prevalent. We know that people are prepared to take such steps; it may be that some of them are mentally disturbed. Perhaps people do not think that these things will happen again, but as I said in debate on another counter-terrorism Bill four or five years ago, the question is not whether we have another Lee Rigby, but when. We have had one after another, at regular intervals. They are becoming more and more imminent, and more and more serious. I doubt whether this Bill, however worthy its objectives, will deal with the problem in the manner in which I am setting out and which is necessary.

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[Adam Afriyie (Windsor) (Con)]

I am another layperson —a non-lawyer. Can my hon. Friend see any downside to including the set of words that he is suggesting in his amendment? Would they limit something that might otherwise not be limited? I hear very clearly his arguments about its possibly being superfluous and the legislation being subject to interpretation, but is there any downside other than it being an additional safeguard that might not have been required?

[Sir William Cash]

Indeed. As usual, my hon. Friend is very perceptive. This is really the main purpose of my words on the subject, because there is no downside at all in this context. I can think of circumstances where it might be arguable that there could be, because somehow or other one might be infringing some genuine human right. However, given that we are dealing with this issue for the sole purpose of preventing people from being murdered in the circumstances and in the manner of these heinous acts, and for the purposes for which people indulge in them, there can be no downside in making this absolutely crystal clear, subject to comments that may be made by other lawyers as a result of what I am saying now and, for that matter, what is said in the House of Lords.

I am not pretending that I have all the answers to every question in matters of this kind, but I do think it is our duty, in the context of what we are seeking to prevent, to ensure that we are as crystal clear as we can be in our direction to the courts that they should not and must not allow human rights considerations to allow murder to take place. That is the problem and that is why I am so emphatic about it. I have noted from the Minister’s remarks and from other conversations I have had with senior Ministers that they are perhaps more interested in questions of interpretation than I am. I do not want any interpretation in this context.

The sole purpose of this Bill is to deal with people who are going to commit murder. Let us be under no misapprehension: this Bill has not been brought forward to deal with some questions relating to the whole generality of human rights law; it is specifically emergency legislation to deal specifically with preventing people who, for a variety of reasons or without reasons, intend to perpetrate murder from doing so. Human life is at risk. That is why this is such a good move on the part of the Government. There is nothing negative in my approach; it is entirely belt and braces. If the opportunity is to be given to Parliament to make sure that we have both the belt and the braces, then for heaven’s sake let us take it and not leave it to the vagaries and the uncertainties of judicial interpretation.

I have already referred to the Hogben case. I am not going to go through the analysis, because this is not something that depends on compiling a judgment about the interpretation of law based on precedents. I do not think that any case we put forward, coming back to what my hon. Friend the Member for Windsor (Adam Afriyie) said, could generate an upside or a downside. I just want clarity; that is the whole point. The words that I have used adopt the “notwithstanding” formula in section 38 of the European Union (Withdrawal Agreement) Act 2020, relating to the sovereignty of Parliament. I argued this in No. 10, and the Prime Minister, to his enormous credit, completely backed me. I said, “You have to include the words ‘notwithstanding the European Communities Act 1972’.” By doing this in a certain manner, one ensures that one achieves one’s objective, without the uncertainty that can arise in the circumstances that I have described.

We need to bear in mind that the Del Rio Prada case was a decision by the European Court of Human Rights. The Minister referred to the other cases. In the case of Uttley, there was an appeal on which the House of Lords concluded that article 7 would be infringed only if a sentence was imposed on a defendant that constituted a heavier penalty than that which would have been imposed at the time the offence was committed. The ECHR then declared that his application was inadmissible. The Del Rio Prada case was to do with Spanish policy, but there is no doubt that part of the argument put forward by the Government today has depended on administration, rather than the object of the Bill. That is another area that needs to be carefully considered, because the question of administration should not be the basis on which we make these decisions.

There we are—I have made my case. The Government could review the situation when the Bill goes to the House of Lords, and I will be interested to see how people develop this argument from now on.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I rise to speak to new clause 1, in my name and that of my hon. and right hon. Friends, but before I do I want to commend my hon. Friend the Member for Streatham (Bell Ribeiro-Addy), who has had to deal with the awful incident that happened on the high street in Streatham shortly after coming into the House. On her intervention on the Minister on Second Reading, the issue of various sentencing decisions over the last 10 years was touched on in a new clause that was not selected, but more broadly I commend the idea of strategically reviewing the sentencing regime, and I hope that the Ministry of Justice will consider that.

I made clear to the Minister previously that it is not my intention to divide the Committee on new clause 1, but scrutiny of the de-radicalisation programme and giving Parliament confidence that the programme is being monitored is very important, and I hope he will address that when he responds.

The new clause specifically requires the appointment of an independent reviewer of the prison de-radicalisation programme. On Second Reading, the Minister mentioned some figures with regard to resources, including £90 million on counter-terror policing and an uplift in the prison budget from £2.55 billion to £2.9 billion, but that does not tell us specifically how much is being spent on the de-radicalisation programme. That is the sort of information that an independent reviewer would be able to discover and then put in a format that the House could consider.

We have already discussed Mr Ian Acheson’s review of Islamist extremism in prisons, probation and youth justice. One of his recommendations was to have an independent adviser on counter-terrorism in prisons who is accountable to the Secretary of State. My new clause goes slightly further than that recommendation. It would require the Secretary of State for Justice to appoint a person to review the operation of the prison de-radicalisation programme, with the power to enter prison premises both to gather evidence and provide scrutiny. There would be a statutory requirement for a report to be laid before Parliament every three months on the programme. That could be regarded as too often, but the general point stands—this House would be in a position to properly judge the effectiveness of rehabilitation work in our prisons.

Subsection (5) of the new clause gives the independent reviewer the power to look into the resources available to the programme, including for probation and rehabilitation work. That proposal of an independent reviewer would give the opportunity for proper scrutiny of this very important programme. The Minister will be aware of the healthy identity intervention and other such programmes that currently exist. Through new clause 1, we seek to build on that and give real confidence in the Government’s work in the rehabilitation and de-radicalisation space. I am not absolutely clear of the extent to which those who have perpetrated these awful atrocities in recent months took part in de-radicalisation programmes, but I hope that will be considered and that the Minister will learn the lessons from that. It is vital that we use the time in prison of whatever length—I had a debate about that earlier with the right hon. Member for New Forest West (Sir Desmond Swayne)—in a constructive way to protect the public.

The broader point is such an important one. I have throughout the debate indicated that, while of course there is support for the principles behind the Bill, including the principle of Parole Board involvement, there must in addition be a focus on resources and on strategy in relation to de-radicalisation. The proposal I have put forward of an independent reviewer is one way of producing that, but I accept that there are others, and I look forward to hearing the remarks of the Minister.

[Sir William Cash]

Before the shadow Minister sits down, may I ask him a question? I am engaged in a probing exercise—I am not going to push amendment 3 to a vote—and I would like to know what the Opposition think about excluding the Human Rights Act 1998 and what reason he would give for saying that it was unnecessary.

[Nick Thomas-Symonds]

I am delighted to have a chance to respond. I will do so in a moment, but the first thing I would say is that I remember the criticism of me and my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) in the last Parliament when we were seeking disclosure of legal advice—not from the hon. Gentleman, but perhaps from others. It strikes me that Members are now discussing case law across the Floor of the House and Ministers are referring to legal advice, which perhaps shows that there is a change.

I do not support the hon. Gentleman’s amendment. First, the point made by the Minister is correct, and even if we put this into the legislation, the right to go to Strasbourg would still exist. The second reason why I am uncomfortable with what the hon. Gentleman is saying—I am quite happy to give way to him again if I am wrong in my interpretation—is that he, as I understand it, wants the House to pass legislation and then somehow prevent courts from being able to adjudicate on it, which surely is not what is meant by having a sovereign Parliament that is accountable to judges.

[Sir William Cash]

I can respond to that very simply by referring the hon. Gentleman to the speeches made on the introduction of the Human Rights Act 1998. I was in the House at the time, and it was made absolutely clear that this Act would not in itself impinge on the sovereignty of Parliament. That was made clear, and therefore as far as I am concerned—I understand where he is coming from, but I am afraid that his point is erroneous—it is implicit in the passing of the 1998 Act that we are able, if we wish to do so, to take the legislation that we pass in this House as the final word, and the courts are obliged to obey that.

With respect to the European convention on human rights, I would simply make the point that I made just now, which is that I could have included such words—yet again, that is another part of my probing amendment—and they could have been “notwithstanding the charter of fundamental rights” as a matter of fact, but that would have been destroyed by the existence at that time of the European Communities Act 1972, which was binding on us by Act of Parliament.

[Nick Thomas-Symonds]

With the greatest of respect to the hon. Gentleman, it is not an erroneous point. I taught the Human Rights Act for the best part of 11 or 12 years, but I will resist the temptation to give his contribution a grade. Yes, the Human Rights Act contains the power to make a declaration of incompatibility, thus preserving the concept of parliamentary sovereignty —it is absolutely right that Parliament does not have a strike-down power as, for example, the US Supreme Court does—but I have two fundamental problems with his amendment. The first problem is the one I have set out: this House passing legislation that essentially tells the courts, “Well, you can move aside: this is absolutely what we say”, without any scrutiny.

[Sir William Cash]

indicated assent.

[Nick Thomas-Symonds]

I know the hon. Gentleman nods his head, but I am not comfortable with that position.

The second point is that I firmly believe we can tackle this issue of terrorism and remain signatories to the European convention on human rights. That is essentially the Government’s position here today, and I really do not think that we need to get into this debate because the Government have clearly stated that the Act—or the Bill, as it currently is—is compliant with article 7. If people wish to challenge that in the courts, that is a matter for them, but the Government must be confident in their legal position.

Under the Human Rights Act, each Bill that comes before the House contains a sentence on its front page to show that Ministers have considered whether it is compatible with that Act. If they had wished, the Government could have stated in the Bill that they did not think it compatible with the Human Rights Act, but they wanted us to proceed regardless. They did not do that, however, and they clearly state on the Bill their belief that it is compatible with the Act. We have heard a case law of history from the hon. Member for Stone (Sir William Cash), and others, but that is the Government’s position, and for those reasons I cannot support the amendment. I understand that he will not push it to a vote, and the debate will continue in the other place, but this is not an amendment that would have found favour on the Labour Benches.

Let me return to new clause 1. I will not push the idea of an independent reviewer to the vote—I will not frustrate the passage of the Bill in that way. However, it would assist the Committee if the Minister set out how Members will be able to scrutinise the programme of de-radicalisation over the next few years, and how we can have the information before us—whether from the Ministry of Justice directly or in another way—to assess how it is working.

The former Prime Minister, the right hon. Member for Maidenhead (Mrs May), intervened on the Justice Secretary during his opening speech, and said that she felt there had been a lack of success in the de-radicalisation programmes. She is right, and we need to see some success in the years ahead. I will not push new clause 1 to the vote, but I hope the Minister will provide some assurances about how such scrutiny could take place.

[Sir Desmond Swayne (New Forest West) (Con)]

I do not intend to detain the Committee long, Dame Eleanor, and the Minister should consider this not so much a probing amendment as a prodding amendment—it is my intention to prod the Minister.

The purpose of my amendments is stunningly obvious. At lines 34 and 37 I wish to remove “two-thirds”, and insert the words “nine-tenths”. In reality, many sentences, even for acts of terrorism such as the possession of terrorist promotional material with intent, give rise to a surprisingly short sentence, such as four years. In such a case, the difference between half the sentence, as currently served, and two-thirds, is a mere six months. Admittedly, extending that to nine-tenths of the sentence does not address the nature of the problem—that is why this is a prodding amendment—but the fact is that sentences are too short.

There is a general problem of honesty in sentencing. When a judge hands down a sentence in court, all those in the know work out on the back of a fag packet what it means in terms of imprisonment, but the public, who are generally not in the know, do not understand that the sentence is not that at all. They would be scandalised if they knew.

[Sir William Cash]

Does my right hon. Friend remember a recent case of two treasure hunters who I think got as much as 10 years because they had not declared a treasure trove? Compare that with somebody who is intent on murdering people on the streets of London, or anywhere else.

[Sir Desmond Swayne]

That is the random caprice of the judiciary! Returning to the issue before us, on the specific point of sentencing for terrorist acts, we must be clear in our minds about what intention lies behind our whole sentencing policy. I believe that fundamentally it must be to secure the reformation of the offender before he is released. The problem is that existing strategies for reforming offenders, and de-programming them from their ideology, are somewhat untested. Those that are tested—such as the programme run in Saudi Arabia, which has been shown to be effective—take a relatively long time. I suggest, therefore, that that lends itself to an indeterminate sentence to detainment at Her Majesty’s pleasure until a licensing authority, the Parole Board, has decided that the offender is safe to be released. That is the purpose of my amendment: merely to contribute to that debate.

--- Later in debate ---

[Sir William Cash]

In the context of what is developing into a very interesting speech, I refer to Edmund Burke’s famous attack on Thomas Paine in respect of what he really thought about human rights. It was a brilliantly expressed metaphor—that we would not be “trussed” like chickens, or something of that kind, by the human rights proposals of Thomas Paine.

[Sir John Hayes]

Now I might really test your patience, Dame Eleanor, because my hon. Friend invites me to articulate a Burkean case against natural rights, which I will be happy to do, but perhaps on another occasion. Given that I offered the hon. Member for St Albans (Daisy Cooper) the opportunity to have a debate about this, that might be the very occasion. Perhaps my hon. Friend will agree to be my seconder in such a debate—what a humbling experience that would be for me and an elevating one for him. I hope we will do that on another occasion and we can indeed explore why so many people take for granted the existence of natural rights, as though they spring from the ether. As a Christian, of course I could not possibly take that view, but now is not the time to get into that discussion.

On the specifics of the amendment, my hon. Friend makes a belt-and-braces case, as I said, for a notwithstanding clause. The shadow Minister made the point that that was fundamentally disagreeable and made a constitutional argument against the notwithstanding clause per se. However, he also went on to say that he believed the Government were right, or were likely to be right, in asserting that they were clear that, in any case, this legislation did not contradict any existing rights legislation. We heard that today from the Secretary of State and again subsequently in the debate: the Government do not feel that the proposed legislation is likely to be successfully challenged, as my hon. Friend suggested it might. We have to assume that the Government have taken legal advice to make that claim.

--- Later in debate ---

[Sir John Hayes]

I would not have wanted to suggest anything other than that. The hon. Gentleman was very clear that he had heard what the Government said about having taken that advice and their confidence that a legal challenge would not succeed on that basis. My hon. Friend the Member for Stone may be more sceptical than others about that, but it is important to point out that the Government have made it clear that further legislation on counter-terrorism will be forthcoming. That legislation might in itself, on a primary basis, revisit the issue of how counter-terrorism measures interface with and may be contradicted by existing legislation. That would be a very fundamental debate, because of course it will oblige the consideration of exactly the kinds of points that he made. On that basis, I am happy to go with the Minister. Notwithstanding my temptation to follow the example of my esteemed hon. Friend the Member for Stone, I am happy, like the shadow Minister, to err on the side of the Government and to say that if they have taken legal advice, with the further opportunity to revisit these matters in the primary legislation that we hear will be speeding its way to the House, I am prepared to concede the argument about rights.

[Sir William Cash]

Will my right hon. Friend give way?

[Sir John Hayes]

My hon. Friend is going to try to persuade me not to.

[Sir William Cash]

My right hon. Friend will accept that this is primary legislation and furthermore that I have already said I am looking forward to a proper discussion about this in the future, with a view to getting it right, because the object of the Bill is to prevent people from being killed on the streets of this country.

[Sir John Hayes]

I am talking about the murderous intent of people I described earlier as wicked. I use that word advisedly: not all these people are mentally disturbed. Some may be, and we know from evidence that some are, but not all. Crime is not an illness to be treated; it is a malevolent choice, an act of wickedness, and wickedness is entirely different from mental illness. I know it is difficult for some to grasp that, but it is important to emphasise it.

--- Later in debate ---

[Chris Philp]

I am grateful for the hon. Gentleman’s confirmation that the Scottish Government support these provisions.

Clause 5 relates to the setting of licence conditions. Clause 6 makes further consequential amendments relating to transitional cases. Clause 7 makes further consequential amendments that apply to England and Wales. Clause 8 makes transitional provisions in relation to offenders in Scotland and, again, clause 9 makes further consequential amendments that apply to Scotland.

Finally, clause 10 specifies the Bill’s territorial extent and commencement. It is worth saying that commencement will be upon Royal Assent, and we therefore hope the Bill takes effect from 27 February, which is important from the perspective of the release of certain dangerous offenders.

I hope that covers the clauses and schedules, and that they will stand part of the Bill.

[Sir William Cash]

As I have already made clear, I am happy to ask leave to withdraw the amendment with the restrictions and conditions that I have already imposed with regard to the House of Lords.

Amendment, by leave, withdrawn.

Clauses 1 to 10 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading