It is a great pleasure to follow the hon. Member for Argyll and Bute (Brendan O’Hara). My reservations about clauses 42, 43 and 45 of the Bill were expressed, I hope clearly, on Second Reading, so I do not need to repeat them. Those of us who have reservations and understandable concerns about the effect on the rule of law of what the Government are proposing need, I think, to answer one question, which is whether there are any conceivable circumstances in which international law could properly be broken by this country. I cannot come to the conclusion that there are no conceivable circumstances in which that might be the right course of action. If there were to be a fundamental threat to the social or economic fabric of this country and breaking the international law was the lesser evil, I can accept that that might be the right thing for this country to do it, but if we were to contemplate such a course of action three things would need to be true.
The first thing would be that there was specific authority to break international law, not general latitude. It seems to me that we have made progress on that. I congratulate my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) and others on negotiating with the Government in the way that they have. I am delighted to see amendment 66 brought forward in the Government’s name as a consequence; and as my right hon. Friend the Member for Ashford (Damian Green) said a moment or so ago, it is perfectly right that the House of Commons should have the opportunity to give its specific view on the specific circumstances that may obtain at that point.
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The second thing that I think would be required is that the circumstances were wholly exceptional. On that, again, we have made some progress. The statement the Government produced on 17 September, which has been referred to already in this debate, sets out some examples of the type of behaviour on the part of the European Union that would trigger those wholly exceptional circumstances in the Government’s view. They almost all relate to a breach of faith by the European Union, and I would concede that they are, in that list, indeed wholly exceptional. It is therefore helpful to see that list.
There is in my view, however, a third requirement on top of the requirement for a specific sanction and in addition to exceptional circumstances, and that is that there is no alternative to breaking international law. On this, we do need absolute clarity. Again, the Government’s
statement on 17 September is helpful up to a point, but it does in my view present a problem. Where one of the unacceptable scenarios the Government have described occurs, that statement says that the Government would activate the appropriate formal dispute settlement mechanisms
“in parallel with the use of the provisions”
in these clauses.
I am afraid it is the use of the phrase “in parallel with” that causes me concern.
I am not convinced that the world “in parallel with” are consistent with the last resort that breaking international law surely must be. It must be the case, must it not, that the United Kingdom will do all within its power within the provisions of the withdrawal agreement and the Northern Ireland protocol before stepping outside it. Given the reputational damage that a breach of international law would undoubtedly do, that would only be right. To be fair to the Minister, I thought I heard him say at the beginning of this debate that in that scenario the Government would use measures within the agreement before using measures in the Bill. Again, that must be the right approach. But that needs to be reconciled, I am afraid, with the phrase “in parallel with” in the Government’s statement on 17 September.
This matters, not because I believe that the Government should be obliged to follow through on an arbitration procedure beyond the last moment at which the Government would be able to take unilateral action in the face of one of these very severe threats that we are discussing, but because there needs to be absolutely clarity that a breach of international law would be a matter of necessity, not a matter of preference, and that everything possible would be done to keep within international law, within the agreements we have negotiated, before we feel the need, if we ever do, to step outside it. I am afraid that the Government still need to provide me, and I am sure other Members of this House, with greater clarity on that very important point.