Committee stage votes on part 5 of the bill

On 9 November 2020, the House of Lords voted by a majority of 268 to remove clause 42 from the United Kingdom Internal Market Bill, and by a majority of 259 to remove clause 44. These clauses were in the part of the bill that dealt with the Northern Ireland Protocol, part 5 of the bill in the version introduced in the House of Lords. The ‘usual channels’ agreed that the other clauses in part 5 (clauses 43, 45, 46 and 47) were consequential on the two that were removed. As a result, the rest of part 5 was also deleted without further votes. However, the Government intends to reintroduce these clauses when the bill returns to the Commons for consideration of Lords amendments.

The UCL Constitution Unit has described these votes as two of the three largest Lords defeats since the chamber’s 1999 reform. The third took place at the bill’s second reading on 19 October 2020, when the Lords voted by a majority of 226 to express regret 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 vote to remove clause 42 was the largest in terms of turnout since remote voting was introduced in the Lords, and the third largest since the House was reformed in 1999.

What did part 5 of the bill do?

Part 5 of the bill contained provisions relating to Northern Ireland, in light of the protocol on Ireland/Northern Ireland that is part of the withdrawal agreement agreed between the EU and the UK in October 2019 and ratified in January 2020. Part 5 sought to give ministers the power to unilaterally interpret, modify the application of or disapply parts of the protocol. Its provisions specifically sought to allow ministers to do this in relation to:

  • export declarations for goods travelling from Northern Ireland to Great Britain; and
  • the application of EU state aid rules to measures that affect the trade between Northern Ireland and the EU that is covered by the protocol.

It specifically sought to allow ministers to do this notwithstanding their obligations under international and domestic law to implement the protocol. Brandon Lewis, the Northern Ireland Secretary, acknowledged before the bill’s introduction that it would “break international law in a very specific and limited way”. The provisions are covered in more detail in section 3 of the Lords Library’s briefing for the bill’s second reading.

What was said in the debate?

Opening the debate, Lord Judge (Crossbench), former Lord Chief Justice of England and Wales, said the House was “being asked by the executive to give a minister authority to break international law, to damage our international reputation and to do so by secondary legislation”. He argued that the “only way available to us to indicate that we are neither complicit nor supine” was to reject each clause in part 5. He suggested the Government might try to argue that not all of the clauses in part 5 broke international law. However, in his view, clauses 44, 45 and 47 “are integral to the whole of part 5 and pollute all the clauses”.

Lord Falconer of Thoroton, speaking for Labour, argued the bill would “place the UK beyond the pale of law-abiding nations” at a time when the UK depended on its relations with the US and the EU for security and trade, to tackle climate change, the coronavirus pandemic and the economic downturn. He said there was no justification for part 5 of the bill, as the House of Commons had entered into the Northern Ireland Protocol “with its eyes open” and it was “misguided” to suggest the UK could change an international agreement “as a matter of parliamentary sovereignty or democracy”. He said there was “not a sliver of evidence that the European Union is not acting in good faith”, as the Government had claimed.

Lord Newby, the Liberal Democrat leader in the Lords, argued that the Lords was “completely within its constitutional right to delete Part 5 if it thinks fit”. He said that if the House “cannot take a view on a matter of deliberate law-breaking by the Government, we may as well pack up our bags now”. Others disputed this view, however. For example, Baroness Fox of Buckley (Non-Affiliated), a former Brexit Party MEP, said the Lords’ job was “not to act as a block to democratic decisions”, warning “it does so at its peril”.

Some Conservative members spoke against part 5, including Lord Howard of Lympne, former leader of the party. He argued it was “dangerous” to imply that “opposition to this part of the bill is in some way the last charge of the remainers”. He said he did “not for one moment regret or resile” from voting in favour of Brexit, but explained he wanted “the independent sovereign state that I voted for to be a country which […] keeps its word, upholds the rule of law and honours its treaty obligations”. Others supported the bill’s provisions. For example, Lord Lilley argued that having the provisions on the statute book would “make it less likely that the European Union will refuse to negotiate ‘in good faith’ and with respect for the other party’s ‘legal order’”, as set out in the withdrawal agreement. At the same time, he believed the UK needed the powers in the bill in case the EU “refuses to resolve these issues by negotiating in good faith”.

The Archbishop of Canterbury expressed his concern “that the bill in its current form fails to take into account the sensitivities and complexities of Northern Ireland, and could have unintended and serious consequences for peace and reconciliation”. This echoed points raised by Lord Eames (Crossbench), who spoke about the bill’s “potential for unintended consequence on the sensitivities of community peace and harmony in Northern Ireland”.

Similarly, Baroness Ritchie of Downpatrick (Non-affiliated), former leader of the Social Democratic and Labour Party, said she supported removing the clauses from the bill because they were “difficult, challenging and undermine the very principles of healing, reconciliation and partnership that we were able to achieve through the Belfast Good Friday Agreement”. However, she said she shared the concerns of unionist colleagues about frictions on goods travelling from Great Britain to Northern Ireland.

Lord Empey (Ulster Unionist Party) argued that the Belfast Good Friday Agreement was “balanced”. He emphasised that “a border in the Irish Sea is just as injurious to that agreement as a land trade border on the island would be”, but he felt that too often the focus was “almost exclusively” on the latter. Lord Dodds of Duncairn (Democratic Unionist Party) argued that whether a business in Belfast was owned by a unionist, a nationalist or someone of no political persuasion, they were all “united on the fact that it would be disastrous to have checks between Northern Ireland and the rest of the United Kingdom to fetter trade unnecessarily”. Lord Empey and Lord Dodds both regretted the arrangements reached in the Northern Ireland Protocol.

Speaking for the Government, Lord True, Minister of State for the Cabinet Office, said that nothing in the bill was conceived to undermine the Belfast/Good Friday Agreement. However, he said the Government would “never accept that a foreign power, in the form of the EU, could unduly disrupt the free movement of goods within the United Kingdom’s customs territory”. The bill’s provisions were designed “solely and specifically against such an unwanted, disproportionate and unnecessary potential intervention”. Lord True disputed the case made by Lord Judge that all the clauses in part 5 were interlocking and should therefore all be removed together.

In terms of the role of the House of Lords, Lord True argued that: “To strike out these clauses, in committee, with little discussion of the detail, would be an unusual step”. He warned that the Lords had “a right and duty to revise, but a responsibility not to wreck”, and removing the clauses from the bill “would look more like wrecking than revision”. He suggested that if the Lords voted the clauses down, there was “no doubt” that the Commons would seek to return the provisions to the Lords in the form the Commons had approved them.

What next?

Further parliamentary stages

The House of Lords report stage on the bill is due to take place on 18, 23 and 25 November 2020. After third reading, the bill is then due to return to the House of Commons. The Government has said it will re-table the clauses removed in the Lords when the bill returns to the Commons.

During the committee stage debate, some members (for instance Lord Cormack (Conservative), Lord Carlile of Berriew (Crossbench) and Lord Falconer of Thoroton (Labour)) suggested they would be prepared to vote against these clauses repeatedly in future. However, this may not necessarily be the view of all members who voted against part 5.

If the Commons were to continue to be in favour of retaining these provisions, and the Lords in favour of removing them, it is possible that deadlock could arise between the two Houses. Erskine May, a guide to parliamentary practice, notes at paragraph 30.25 that: “A situation where one House insists on its amendment after the other House has insisted on its disagreement to it is described as ‘double insistence’. A bill is normally lost on ‘double insistence’”. The MPs’ Guide to Procedure notes that: “In practice, considerable efforts are made to avoid this, usually by the Houses suggesting alternative amendments when they disagree”.

Erskine May also notes at paragraph 30.28 that when a bill has been lost through disagreement, “it should not, according to the practice of Parliament, be reintroduced in the same session”. However, “when an element of a bill has been omitted by the Lords, and the Commons have agreed to such amendment, the element so omitted has been renewed in the same session in the form of a separate bill”.

Under the Parliament Act 1911 and 1949, certain public bills may be presented for royal assent without the consent of the Lords. However, certain deadlines apply to this process. As the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords explains, unless the bill has been certified as a money bill by the Speaker of the House of Commons, “[t]he effect of the Parliament Acts is that the Lords has the power to delay enactment of a public bill until the session after that in which it was first introduced and until at least 13 months have elapsed from the date of second reading in the Commons in the first session”.

Impact on international negotiations

Simon Coveney, Ireland’s foreign minister, said on 15 November 2020 that if the UK Government went ahead with restoring the provisions of part 5 in the bill, then the EU would not agree to a future relationship agreement with the UK. Mr Coveney said: “there’s no way the EU will agree to ratify a new agreement if the British Government is breaking the existing agreement that’s not even 12 months old and breaking international law by doing that”.

The European Commission launched infringement proceedings against the UK in October 2020. The Commission argued that the UK Government’s failure to withdraw the contentious parts of the bill meant it had “breached its obligation to act in good faith, as set out in article 5 of the withdrawal agreement”. The leaders of the political groups in the European Parliament and the European Parliament’s UK coordination group stated in September 2020 that “should the UK authorities breach—or threaten to breach—the withdrawal agreement, through the United Kingdom Internal Market Bill in its current form or in any other way, the European Parliament will, under no circumstances, ratify any agreement between the EU and the UK”.

Responding to Mr Coveney’s remarks, George Eustice, the Environment Secretary, said the Government would be putting the measures back into the bill. He argued that “if there’s not an agreement then these changes will be needed, if there is an agreement they won’t be needed”.

There has also been speculation about what the bill might mean for the prospects of negotiating a trade deal with the United States under Joe Biden’s presidency. Mr Biden tweeted in September 2020 that a deal was “contingent upon respect for the [Good Friday] Agreement and preventing the return of a hard border”. Asked about the bill after US media outlets called the presidential election for Mr Biden, Boris Johnson said: “The parliamentary timetable goes ahead”. He argued that “the whole point of that bill […] is to protect and uphold the Good Friday Agreement and the peace process in Northern Ireland”. Mr Biden reaffirmed his support for the Good Friday Agreement in his first phone call with Mr Johnson on 10 November 2020.

Cover image by Pedro Lastra on Unsplash.