Wednesday, 21 October 2020

UK Internal Market Bill ~ House of Lords Second Reading

The government's UK Internal Market Bill is before the House of Lords and its second reading commenced on Monday 19 October (Hansard) and continued on 20 October (Hansard).  The Bill contains a number of clauses seeking to enable Ministers to breach international law (i.e. the Withdrawal Agreement).  Specifically, the repugnant clauses are 44 (Power to disapply or modify export declarations or other exit procedures), 45 (Regulations about Article 10 of the Northern Ireland Protocol), and 46 (Further provision relating to sections 44 and 45 etc.  Clause 46 seeks to prevent legal challenge on any ground whatseoever.

Lord Judge, a former Lord Chief Justice of England and Wales, moved a motion of regret that - "this House regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.”​ The Bill was read a second time (395 votes to 169) with Lord Judge's motion approved. Lord Judge's speech,

with which many peers agreed, is worth reading full.

"My Lords, I beg to move the amendment in my name on the Order Paper. If I believed in compulsion, and executive compulsion in particular, I would make an order that every member of the Cabinet should read the report from the Constitution Committee and the report from the Delegated Powers and Regulatory Reform Committee and understand what they mean. What I read in those reports we have read time and time again, and, so far, nobody has paid much attention to them. I can sit down now, can I not? Perhaps not. [Links added].

I do not want to grandstand, but the rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it. When those responsible for making the law—that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make—knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted. There is one consequence, and the damage is to our standing in the world. We have no real power now, except soft power—the English language and an understanding that we in this country have a traditional belief in the rule of law and we respect it. We hope that, one day, all the countries in the world that do not have respect for the rule of law will have it. Yet here we are, about to tear it into tatters. Our contribution to happier days around the world will be diminished.

I want to make it clear that I passionately believe in the sovereignty of Parliament. I extol it, I discuss it abroad, I explain its advantages over a written constitution, which includes the flexibility that we now have. I also accept that Parliament can make any law it likes; it can criminalise anything it wants to. Let me give you a silly example, which is not that far removed from what has been going on through Covid. I happen to support Leicester City FC. Parliament could make it an offence to be a supporter of Leicester City FC. They could make it an offence for 10 Leicester City FC supporters to gather together to support the club. It obviously will not do that, but in theory it can do exactly what it likes.

The rule of law requires properly enacted laws. I accept that; rule by properly enacted laws is one of the ingredients, but it is not definitive. When the sovereignty of Parliament is tossed against us—fair enough, it is important, it is crucial, it is our constitution—let us remember that every country in the world has a law-making body. Think of one that has not. It will produce the laws by which that country is ruled. Of course, it will. But some constitutionally, properly enacted laws are the antithesis of the rule of law. There are so many examples, but here is one that leaps to mind. Apartheid South Africa, where everything about you as a human being and the way you were treated by the law depended on the accident of birth: the colour of your skin. Depending on the colour of your skin, your rights were more or less; they were certainly different. We tend to forget—we should not—that apartheid South Africa’s abhorrent laws were the result of a perfectly clearly understood constitutional enactment. In law, they were utterly justified in making any law they liked, just as we are. But somebody tell me that apartheid South Africa, with its properly enacted laws, was a place where the rule of law could be found. It was miles away, the furthest constellation in the stars you can imagine.

We need to be careful to distinguish between the rule of law and rule by laws. It is the rule of law that carries us and gives us the protection that we need from the abuse or misuse of the constitutional power that is enjoyed by Parliament. It is our safest shield against authoritarianism. It is a phrase that was conjured up by the Commons for the first time in 1610 to tell an overweening king that he was seeking to exercise overmuch power. It is a phrase we should use to remind an overweening Executive that they are going too far.

I know that I am not alone in finding it offensive that we are asked by a Minister in Parliament to seek Parliament’s authorisation to allow him to break the law deliberately and knowingly. Saying that it will be done only in a very specific and limited way is a total obfuscation. A thief who steals only a tin of tuna is still a thief. Over the years, Parliament has heard many strange words, it has heard some very surprising words, it has heard some inspirational words. It is part of the history of our country. But I have not yet found an occasion—I have tried, and if the Minister can find one no doubt he will tell me—when Parliament was invited to agree that a Minister should be entitled to break the law.

We must look on the impact of Part 5 as a totality. It is not just Clause 47 that is pernicious. Let us go back. We became party to a new agreement with the EU, which provided sensible get-out clauses for both sides and which either side could use, and re-enacted the withdrawal Act this year, just before Covid hit us. The Northern Ireland protocol was integral to it, with its own get-out clauses. I recognise, if I may say so, the distaste and hostility with which some people in Northern Ireland regard what happened then. I suggest to them that this debate is not about the protocol; it is about the rule of law.

The Act gave legal effect to the withdrawal agreement and the protocol, and thus it became domestic legislation implementing an international agreement. Of course I accept that international agreements and treaties occupy a separate star in the firmament, but breaking international law is not different, in principle, from breaking domestic law. The rule of law is no less an ingredient of the legal relationship between nations as it is domestically. Let us get ourselves rid of the myth, the spin, that when the rule of law internationally is damaged, the rule of law domestically is nevertheless quite unscathed. It is absurd. The rule of law is indivisible. And let us disabuse ourselves of a further myth or spin that actions already taken have not diminished virtually to extinction the assertion by the Minister in the other place that we are a beacon around the world for the rule of law and international law. The light given by that beacon is being extinguished.

Finally, we must not be beguiled by the recent argument that the legislation would be used only if necessary, in an emergency. It does not cure the fault, does it? What is not a myth is that not a shred of evidence has been produced that would justify the use of the get-out clauses; hence this proposed legislation. Part 5 provides that a Minister of the Crown shall be vested with the power to use secondary legislation in effect to repeal an Act of Parliament that Parliament has only just enacted, almost before the ink on it is dry. That is not how the sovereign Parliament should be treated by the Executive. We do not have executive sovereignty.

But this is worse than the standard Henry VIII clause. To talk about a standard Henry VIII clause is itself a shameful thing to have to do, but we are faced with them in every piece of legislation, like blossom in spring when the wind blows. And, despite the recent arguments by the Lord Chancellor, Part 5 as a whole was obviously intended to prevent any legal challenge to ministerial decree—and the Lord Chancellor himself accepts that such rights will be reduced.

This is not an attempt to limit the court’s jurisdiction over primary legislation: it is now being extended to secondary legislation. The House has heard me speak before on the subject of the inadequacy of parliamentary control of secondary legislation but, if Parliament will not exercise control, and the courts cannot do it, where then are the controls on the Executive? They are vanishing into the air. So now we are being asked to give a Minister of the Crown, on behalf of the Executive, the lawful authority knowingly and deliberately to repeal recent domestic legislation and to break international treaties, all through secondary legislation over which parliamentary control has crumbled through disuse and the normal scrutiny of which by the courts has been reduced to a whimper.

I am nearly done. The rule of law has served us well. It has not made a perfect society—nor could it. But we all know that without it our society would have been, and would still be, catastrophically worse. We must defend that bulwark, and I hope that I shall be supported, because I intend to take this issue to a Division, so that the House can give its own opinion on this dangerous legislation. I say, “Not in my name.”

The Bill has now moved to its House of Lords Committee stage.

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