The Internal Market Bill was passed by the House of Commons. During yesterday’s debate, Sir William Cash made the following interventions:
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.
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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.
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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.
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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.
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.
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Sir William Cash: 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.
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.
As the majority in Miller 1 explained, at paragraphs 55 to 57, the dualist principle is a necessary corollary of the fundamental constitutional principle of parliamentary sovereignty. It exists to ensure that Ministers, in the exercise of the royal prerogative to conduct international relations, cannot alter domestic law, which is the preserve of Parliament. Parliament, in the exercise of its sovereignty, is free to legislate in any way it sees fit, including contrary to the UK’s international obligations. Thus—I am quoting from another judgment—
“the sovereign power of the Queen in Parliament extends to breaking treaties”.
That is made clear in Salomon v. the Commissioners of Customs and Excise in 1967, as well as in Serbia v. the Secretary of State for the Home Department in 2010 and the Attorney-General of Canada v. Attorney-General of Ontario in 1937, in the words of Lord Atkin, so I think the case is well established.
There is nothing in this Bill that is breaching international law and, as I have referred to the laying of a Bill, I think it is an outrageous piece of tosh, if I may say so, that somehow or other we would be in breach of the law—of international law, for heaven’s sake—in doing so, despite what Mr Šefčovič has been railing about on 10 September and again yesterday. The reality is that we are entitled to do what we are doing, and that is precisely what we are doing in this Bill.
This is also what we did in relation to section 38 of the European Union (Withdrawal Agreement) Act 2020. I just take issue a little bit with my hon. Friend the Member for Bromley and Chislehurst regarding the point he made. Of course, he was very gentle about this, but he was saying, “You, the Member for Stone, really must try to understand that actually there is nothing particularly unusual about section 38. It’s just part and parcel of our sovereignty.” I just gently say to him—and I will read out the words in question—that section 38 says:
“It is recognised that the Parliament of the United Kingdom is sovereign.”
Well, we are in agreement on that. Then it goes on to say:
“In particular, its sovereignty subsists notwithstanding”—
and subsection (2)(b) says in relation to the European Union (Withdrawal) Act 2018—
“section 7A of that Act (other directly applicable or directly effective aspects of the withdrawal agreement)”.
That is the point, and it is absolutely clear. It then goes on to say:
“Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.”
In fact, if I may say so, that is the very wording I used when I put down an amendment—in precisely those words—to the single market Act in June 1986. Those were exactly the same words, so there is a bit of history to all this.
I simply make those points because I think it is really important that we put this into perspective. There has been a very heated debate over all this. All I can say is that I understand people’s concerns. It is extremely good that my hon. Friend has made the points he has. I know that he regards this as a last resort, and also as a threshold and the bar that he has talked about the other day. However, I will simply say this: nothing could be higher than the bar of the sovereignty of this House of Parliament in relation to its representative nature. It is right to be able to legislate on behalf of the voters of this country, and in December last year we got a majority of 80 from the British people. This legislation has been passed on that basis, and that is something I think we should be proud of.
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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.
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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.
