Relevant documents: 14th Report from the European Union Select Committee, 24th and 26th Reports from the Delegated Powers Committee, 17th Report from the Constitution Committee and 8th Report from the Joint Committee on Human Rights
We now come to the group beginning with the Question that Clause 42 stand part of the Bill. I remind noble Lords that any participant wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear during the debate.
Clause 42: Northern Ireland’s place in the UK internal market and customs territory
Debate on whether Clause 42 should stand part of the Bill.
Lord Judge (CB) [V]
My Lords, it is only three weeks since an overwhelming majority of this House regretted Part 5 of the Bill. We regretted that the enactment of Part 5 would undermine the rule of law and damage our international reputation. It was a regret shared by members of all parties and none, and all political affiliations and none. Our procedures do not, however, permit us now to record that we are not content that Part 5 should stand part of the Bill. We must address the question clause by clause. I make it clear that at the end of the debate I intend to divide the House, if necessary, on every single clause in Part 5 to record what I hope will be an overwhelming majority view of the House: that we are not content.
Second Reading proceeded largely on the basis of the Government’s concession—maybe their confession—that the provisions in Part 5 breached international law. Clauses 44, 45, and 47, are not the only troublesome clauses. The Committee has not yet heard much criticism, but there is criticism to be directed about Clauses 42 and 43. I adhere to every criticism I made at Second Reading. It is very recent; I do not propose to repeat those criticisms. However, my concern about Part 5 is quite undiminished. Indeed, my criticism has been reinforced by attending the Committee stages of the earlier parts of the Bill, which highlighted the alarming extent of the secondary powers sought by the Government and utterly vindicated the criticisms of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.
However, for the purposes of today, my basic premise is that Part 5 should be seen as a whole, with each and every clause in it interlocking and related to each other. It is a complete, self-contained, cohesive whole: a programme, or a structure, of which Clause 42 is the starting point and foundation, and Clause 47 is the culmination. For a start: just because the clauses in Part 5 work together in the same structure, so they are all contaminated by the contamination of each of them.
However, this part goes further. It proposes that a Minister should be vested with unconditional power to disapply the Northern Ireland protocol. We have heard so much about this that I shall not go through what it amounts to—we all know. For example, the proposal does not require the Minister first to have tried the remedial provisions in the protocol or the withdrawal agreement; nor does it postpone any ministerial action until the negotiations with the European Union have broken down, or until such time as the Government wish to proceed on the basis that the EU has been acting in bad faith. It flies in the face of our binding agreement that we should refrain from any measures that could jeopardise the objectives of the withdrawal agreement.
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Clause 43 stands in the Bill with Clause 44; one follows the other under the heading “Unfettered access”. They are linked together. Noble Lords need look no further than Clause 43(3), which provides, first, for compliance with Article 6(1) of the protocol, but, secondly, expressly provides that it does not authorise any function to be exercised
“in relation to any international obligation or arrangement if”
it
“has ceased to have effect by virtue of regulations made under this Act”—
that is, Clauses 44 and 45, or by virtue of Clause 47. It does not take very much to realise that the pernicious, lamentable provisions in Clauses 44, 45 and 47 have direct application and relevance to Clause 43. Your Lordships all know that it has been admitted that each of them breaks international law. I suggest that this demonstrates the nature of the link.
Clause 46 provides a limitation to the notification provisions of Article 10 of the protocol. It is part of the unacceptable process envisaged in Part 5. It would in any event be an extraordinary provision to leave it standing on its own, as a single clause integral to Part 5, if, as I hope, the remaining clauses of Part 5 are omitted.
If and when it is advanced on behalf of the Minister, or by him, that Clauses 42 and 43 are not offensive and do not fall within the Government’s concessions, I invite your Lordships to reflect that those clauses, with Clause 46, are the foundation for and integral to the whole of Part 5. These are not guardian angels, pure and unsullied, which just happen to be in the wrong place at the wrong time and, by accident, get caught up with bad company. They are there for the same reason as the admittedly offending clauses in Part 5.
I shall not, as I said at the beginning, repeat the arguments I put to your Lordships’ House just three weeks ago, but I ought perhaps to remind us of just one of the obnoxious features of Clause 44: Clause 44(5). It is worth listening to it to remind ourselves. It is a regulation-based provision, the regulations of which may include
“provision for rights, powers, liabilities, obligations, restrictions, remedies and procedures that would otherwise apply, as a result of relevant international or domestic law, not to be recognised, available, enforced, allowed or followed.”
I add just this, and highlight to your Lordships that Clauses 44 and 45 are entirely regulation-based. The effect is to enable Ministers, by regulation, to breach international or domestic law. Can we just pause? We are being asked by the Executive to give a Minister authority to break international law, to subvert the rule of law, to damage our international reputation and to do so by secondary legislation, I regret to say, for the reasons your Lordships have now listened to me patiently expound for some time, with minimal, merely theoretical supervision by Parliament and, moreover, although simply through secondary legislation, effectively removed as far as possible from any examination of their lawfulness by the independent courts.
When will we check the pernicious, subliminal process of allowing the sovereignty of Parliament to be refashioned into the sovereignty of the Executive? In this part, the Executive seek powers that Parliament should never have been asked to give. But as we have been asked to give them, we must not be complicit or supine. The only way available to us to indicate that we are neither complicit nor supine is for us to say “Not content” to each clause in this part of the Bill.
My Lords, I am privileged to follow the noble and learned Lord, Lord Judge, and I find myself in support of his comments on the wider ambit of the Bill. I share his reservations coming, as I do, from one of the devolved parts of the United Kingdom. I speak to the amendment that is in my name and that of the most reverend Primate the Archbishop of Canterbury, the noble Baroness, Lady Ritchie of Downpatrick, and the noble Lord, Lord Hain. I thank each of them for their support.
This amendment has two purposes, and I stress that in light of the remarks by the noble and learned Lord, Lord Judge. I aim first to provide a degree of protection for a devolved nation, Northern Ireland, should the Bill progress in its present form. Secondly, I aim to allow a statement on the record on the vulnerable nature of the peace process in Northern Ireland in the face of the present nature of the Bill. Those two phrases justify my approach: its present form and the present nature of the Bill.
This amendment places a duty on the Secretary of State to take account of the effects of any exercise of authority conveyed by the Bill on the peace process and progress of reconciliation in Northern Ireland. As the Bill stands, there is potential for unintended consequence on the sensitivities of community peace and harmony in Northern Ireland. Brexit is already asking searching questions of that sensitivity. Issues of internal trade arrangements—north-south and east-west in the United Kingdom—are raising questions that have the potential to threaten the hard-earned progress of community understanding and stability in Northern Ireland, which is still a tender plant.
We have heard frequent reference in your Lordships’ Chamber to the Good Friday or Belfast agreement on Northern Ireland. That is how it should be. That agreement was a turning point in the troubled history of Northern Ireland. It was an episode of immense significance, but it was an episode. The peace process is not just one episode; it is an ongoing daily process, involving ordinary men and women in their lives, how they do business with and relate to each other and, above all else, how they address their fears. It depends on building bridges across traditional divisions. At times, it lurches from mistakes to just temporary success. Constantly lurking in the background is the threat of violence and terrorism. In the Bill is the potential to threaten the stability of Northern Ireland. That threat, as much as it lies in what the Bill questions of the devolved settlement, raises issues of the Northern Ireland peace process. There are issues for Scotland and Wales which, although not as sensitive as those on reconciliation in Northern Ireland, are equally about community stability.
My Lords, it is a pleasure and an honour to follow the noble and right reverend Lord, Lord Eames. His moving words carry great weight and merit serious consideration by the Government.
I hope I may be forgiven for beginning my remarks with a brief tribute to Lord Sacks, whose death was announced over the weekend. His profound wisdom will be sorely missed, both inside and outside your Lordships’ House.
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It is striking that Part 5 stands separate from the rest of the Bill. The Bill addresses numerous fundamental questions relating to the UK internal market. It does so identically for Scotland, Wales, England and Northern Ireland. You cannot draw the slightest distinction between the ways in which the legislation applies to the four nations, save perhaps for Clause 11, which deals with the Northern Ireland protocol and, importantly, how market access throughout the United Kingdom arising from the application of the protocol should work. That, as I emphasised, is how the protocol is to be made to work. Beyond that, every single provision in the Bill applies equally, with all its flaws, to all four nations, and Northern Ireland is rightly included equally with the other nations in the arrangements for a strong, open internal UK market—that is, until we come to Part 5.
There is no Part 5 that applies to Scotland, Wales or England. There is no special protocol for any of them. Part 5 is expressly confined to Northern Ireland—it says so. Why the difference? Why are the other nations not blessed with their own Part 5? I suggest that there is a short answer: because Part 5 has the single purpose of enabling the Government, as and when they wish, to nullify their international obligations—and, what is more, to do so unilaterally, without recourse to the dispute resolution created in the protocol and the agreement. Surely that is why there is no equivalent provision for Scotland, Wales or England. However, whether that is the purpose of Part 5 or not, in law, that will be its result.
I suspect it will be suggested that Clauses 42 and 43—and perhaps Clause 46—require a different approach from Clauses 44, 45 and 47. One obvious distinction between them is that Clauses 42, 43 and 46 do not fall within the Government’s concession that the other clauses break international law. With respect, that approach is flawed. The clauses in Part 5 cannot be cast into self-contained silos. Clauses 44, 45 and 47 are integral to the whole of Part 5 and pollute all the clauses. Beyond that, merely because the Government have made no concessions about Clauses 42 and 43, it does not follow that they are far from reproach.
Clause 42 starts with aspirational objectives but then comes down to define its relevant purposes, which, first, include implementing the Northern Ireland protocol and, secondly, extend to
“otherwise dealing with matters arising out of, or related to”
the protocol. “Otherwise dealing” are weasel words; they can certainly be seen to contradict “implementing”. This provides power to dilute the protocol, of course. More important, perhaps, here comes the rub: the purposes, as Clause 42(2)(c) provides, include the movement of goods in a country or territory outside the United Kingdom—that is, not Scotland, Wales, England or Northern Ireland. That is not a provision for the UK internal market. If enacted, that function conflicts with the protocol. I respectfully suggest that Clause 42, at the very least, undermines it.
I ask your Lordships to also consider my amendment in the wider context of the Bill. The decisions implemented by the Bill will have a profound effect on the future of the countries of the United Kingdom and the relationship between them, for the Bill represents a profound shift in how trading relationships within the UK will be regulated and governed in the years ahead. This will not be a return to the trade structure that was in place before the UK entered the EU; rather, it is the construction of a system to replace one that had emerged through careful negotiation over decades.
There is in the Bill a weakening of the principles and effect of devolved policy-making, a constitutional significance already noted by the Scottish Parliament and Welsh Senedd. If the Bill reaches the statute book without the consent and understanding of the devolved legislatures, which would occur if safeguards such as those in my amendment are ignored, then trust and good will among the devolved nations will be eroded. But there has been frequent reference in our debates to how, as it stands, the Bill offers the opportunity for a government Minister to break international law.
My amendment is worded with that opportunity in mind. Those of us who feel a moral responsibility to protect and encourage the process in Northern Ireland are particularly alarmed by that possibility. In particular, we feel that the Good Friday agreement, an international agreement that cements and underpins peace and stability within and between the United Kingdom and Ireland, is under threat. A recent article in the Financial Times by the current Anglican primates of the United Kingdom included these words:
“If carefully negotiated terms are not honoured and laws can be ‘legally’ broken, on what foundations does our democracy stand?”
I speak to noble Lords, through this amendment, with deep personal feeling. My professional life was lived out during the days and nights of the Troubles. I have seen suffering and hurt. I have seen the highest that human nature can reach and the lowest to which it can descend. I have seen suffering. I have presided over funerals and seen the tears of young people. I have no alternative but, with moral justification, to defend the peace process and what is being slowly but surely achieved in my native land. I therefore beg leave to propose this amendment.