The government suffered the largest defeat in the House of Lords this century in votes on 9 November on the parts of the Internal Market Bill which would break international law. When the amended Bill limps back to the House of Commons in early December, the Government will face a choice.
By then it will be clear whether or not the UK and EU have reached an agreement on their future relationship; if there is a deal, the Prime Minister will probably let the clauses drop, claiming they helped secure victory.
But in the event of no deal, could the Government add to the ensuing crisis by forcing through this legislation, thereby tarnishing its reputation as a country that upholds the rule of law?
The historic votes on 9 November, by margins of 268 and 259 respectively, came after five hours of passionate debate in the Lords Committee stage on the part of the Bill (Part 5) which seeks to define Northern Ireland’s place in the UK’s internal market and customs territory.
This would give ministers sweeping powers to override provisions in the Northern Ireland Protocol, which is an integral part of the Withdrawal Agreement, an international agreement signed with the EU in November 2019 and ratified by Parliament in January of this year.
The strength of feeling in the Lords against Part 5 was evident in the fact that 44 Tory peers voted against the Government, including senior figures from both sides of the Brexit argument including Michael Howard, William Hague and Ken Clarke.
The broad cross-party support for striking out the whole of Part 5 of the bill rested on two main arguments.
The first argument was that it would give ministers unconditional powers to “renege on a treaty they signed barely a year ago”, in the words of Michael Howard.
It would enable them to set aside provisions in the Northern Ireland Protocol on the movement of goods between Great Britain and Northern Ireland, and on Government subsidies to businesses in Northern Ireland.
And ministers would be able to exercise these powers unilaterally, without first having invoked the mechanism set out in Protocol for settling disputes with the EU.
The second argument was that the Bill would give ministers unprecedented powers to make regulations ‘notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent’ (Clause 47 (1)).
The Lords Constitution Committee in its Report on the Bill (HL Paper151, paragraph 195) concluded that ‘if enacted, such an exclusion of the judicial function would put ministerial regulation-making powers above the law in an unprecedented manner. It would be an unacceptable breach of the rule of law’.
There were passionate speeches as well on the other side of the argument. Those defending the Government’s position argued that the Bill was essential to protect Northern Ireland’s place in the UK internal market in the case of extreme bad faith by the EU, although no evidence of bad faith was produced. Some described the measures as a safety net only to be used if differences could not be resolved in any other way.
The great majority of peers preferred the argument that the Government should respect the international agreement it had signed with the EU only nine months before, and that if serious differences arose, these should be handled through the mechanisms set out in the Protocol.
I and others also pointed out that Part 5 of the Bill would damage Britain’s wider reputation for upholding the rule of law, and weakening our credibility for example in condemning China for breaching its international obligations over Hong Kong.
What happens next? The Internal Market Bill will now complete its Report stage in the Lords and return to the House of Commons in early December. The Prime Minister has made clear that he then intends to reinstate Part 5 of the Bill. But there will be two new factors to consider at that stage.
First, President-elect Biden has made plain his concern that nothing should be done which could put at risk the Good Friday Agreement. He clearly had in mind the prospect of the UK overriding its agreement with the EU on the handling of the Northern Ireland border.
Second, the seemingly interminable negotiations between the UK and the EU will be over by early December, one way or the other. If there is an agreement, the Government may well conclude that there is less need for a safety net to guard against extreme scenarios, and decide to leave Part 5 in the dustbin of history.
If there is no deal, the Prime Minister would have a more difficult dilemma: he would face strong calls from within his own party to try to force Part 5 back into the Bill. But that would set him at odds with President-elect Biden and the US Congress, and jeopardise a US-UK trade deal.
The Government would also face a major timing issue. They need the other parts of the Internal Market Bill on the statute book by the end of the year, since its main purpose is to divide up between London and the devolved administrations the economic powers that come back to the UK from Brussels at that point.
Ministers would do well to listen to the senior Peers, including some on the Government benches, who argued that the constitutional issues involved in Part 5 of the Bill are so important that the Lords should stand their ground and continue to vote them down if necessary.
The Government would not have time for a major constitutional clash in addition to everything else that would be going on in late December in the absence of a deal with the EU. The conclusion is inescapable: Part 5 of the Bill should be dropped.
By Lord Peter Ricketts GCMG GCVO, cross-bench peer in the House of Lords and former British diplomat.