To ask Her Majesty’s Government what role the Law Officers have in ensuring that the rule of law is maintained in (1) the development of domestic legislation and (2) their policies relating to the United Kingdom’s withdrawal from and future relationship with the European Union.
My Lords, the duty of the law officers is to give the Government full and frank legal advice, to advise and to stipulate adherence to the rule of law. Our advice is confidential, and it is fundamentally important that it remains so. As I have said previously, the freedoms and protections that we all enjoy rely on the rule of law. It is an important constitutional principle and, as a responsible Government, we remain committed to it.
My Lords, is it not difficult to retain confidence in the Lord Chancellor and the law officers of the Crown when they acquiesce in the Government’s declaration of willingness to break international law? Are these officers of the Crown not charged with responsibility for ensuring that Ministers respect the rule of law, national and international, in all circumstances—a duty with which permitting threats to break it is hardly compatible.
My Lords, I would find it difficult to disagree with any of the observations made by my noble friend. Of course, we must advise Government—as we would advise others—to temper the rule of law at the level of both domestic and international law. I have to say to this House that, in my opinion, the present Bill does not of itself constitute a breach of international law or of the rule of law.
The key characteristic for law officers is not brains—they can get all the advice they want from the English Bar or the lawyers—but backbone. The Secretary of State for Northern Ireland confirmed that a breach of international law would be caused by the passage of the United Kingdom Internal Market Act under Article 4 of the withdrawal agreement.
The Advocate-General produced a load of rubbish to the EU withdrawal committee this morning when he said that Article 16 justified saying that it was not a breach. The party that changes its story on the law—as this Government do—shows it lacks backbone. How does the Advocate-General feel able, consistent with personal honour and professional duty, to remain as Advocate-General?
My Lords, let us be clear that I have satisfied myself as to the correct legal position in this context. As I indicated to the EU Justice Sub-Committee this morning, it is my view that the Secretary of State for Northern Ireland essentially answered the wrong question.
I hope that the noble and learned Lord has not become unwell in view of the noises emanating from him—but, if he has, I wish him well for the future.
Let us be clear that we are in a situation where we have rights under an international treaty. Those rights include our response to any breach of obligations by the counterparty, be that a lack of good faith or such action as would fundamentally alter the obligations under the treaty, giving rise to a position—under Article 62 of the Vienna Convention—where we could withhold our operation of the treaty.
It has been suggested to me by no less a legal authority than the noble and learned Lord, Lord Falconer of Thoroton, that we can simply rely on Article 16. This has immense novelty value. The idea the Executive can enter into a treaty at the level of international law and then rely on that to displace primary legislation passed by the domestic Parliament is, I respectfully suggest, extraordinary. That requires these mechanisms in the UKIM Bill to address the contingency of a material breach that we need to address.
My Lords, the noble and learned Lord told the Scottish Public Law Group in Edinburgh in June 2018:
“If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively—any government is simply shooting itself in the foot if it undermines the rule of law.”
The contingent powers in this Bill to change the Northern Ireland protocol unilaterally trash the dispute resolution provisions in the treaty that Boris Johnson signed, and on any sensible reading undermine the rule of law, as Brandon Lewis candidly acknowledged. Will the Minister acknowledge that for him to promote their use by introducing a statutory instrument under these provisions in this House would violate his overarching duty under the Ministerial Code to comply with the law, including international law and treaty obligations, as the Court of Appeal found and as the noble and learned Lord is reported by the Guardian correctly to have advised the Prime Minister? Does he acknowledge that it would also violate the law officer’s oath that he took as Advocate-General of Scotland, and would be a gross dereliction of his duty?
My Lords, with great respect, I adhere completely to my previous observations about the importance of the rule of law, and I have no difficulty with those statements. What is contemplated is a contingent situation, one in which we find that the EU has materially breached its treaty obligations and in which we find that it may have acted in such a way as to fundamentally alter our obligations under the treaties. In those circumstances, we have Article 16 of the Northern Ireland protocol. We also have Article 62 of the Vienna convention with regard to withholding our operations. However, we have to look at our dualist system: not only do we have obligations at the level of international law, pursuant to Article 4 of the withdrawal agreement, but we have drawn them down into domestic law by virtue of Section 7A of the withdrawal agreement Act. Article 16 of the international treaty does not confer upon the Executive the power or right to ignore that primary legislation. That is why an instrument and means of dealing with this matter rapidly and effectively needs to be in place lest there should be such a material breach.
Can my noble and learned friend confirm that, if the Government invoke Article 16 to tackle the problems that they foresee, they would still need legislation like the Internal Market Bill to implement it? Do not we need that legislation on the statute book before the end of the transition period to reassure businesses that they will not have to either submit export declarations or pay tariffs on all goods between Great Britain and Northern Ireland?
My Lords, I entirely concur with the observations of my noble friend. As I indicated before, it is one thing for the Executive to determine an issue at the level of international law in terms of a treaty, but they cannot utilise that in order to ignore primary legislation of our domestic Parliament. Therefore, a means has to be in place to address the effect of that domestic legislation, and that is the purpose of Part 5 of the UKIM Bill. It will enable us to bring forward regulations that will do that—and, indeed, regulations that will require explanation and the affirmative approval of this House.
In view of the fact that the Minister accepts an obligation on the Attorney-General to protect and safeguard the rule of law, in regard to this matter where there are different views, what action is the Attorney-General taking, along with the other law officers, to show the importance of upholding the rule of law?
My Lords, I sought to explain this morning to the Security and Justice Sub-Committee the position that I adopt with respect to this matter, and why I consider that the provisions of the Bill are entirely limited in their intent and effect and fall within the rule of law and the requirements of international law. I certainly do not anticipate that those provisions would be abused. Indeed, if they were, I cannot foresee that either House would contemplate passing the relevant regulations. If they did, I would certainly have to consider my position as a law officer, because I owe my obligations to Parliament as well as to the Government.