Great consternation is felt in Scotland about the way in which part 5 of the Bill seeks to flout international law by breaking a treaty into which the Prime Minister entered freely barely a year ago. There is a long tradition in Scotland, going back to the declaration of Arbroath, that neither the monarch nor the Government are above the law. The Prime Minister should really remember that, because it was Scotland’s Supreme Court that led the way last year in ruling his Prorogation of Parliament unlawful, but it seems that he has learned nothing from that debacle.
Nor has the Prime Minister learned anything from the revulsion that was felt when he allowed his adviser Cummings to flout the lockdown restrictions that the rest of us had to obey. Over the past few days, we have watched a succession of Tory Government lawyers make mealy-mouthed excuses for what the Bill seeks to do. The Lord Chancellor says that he will resign only if the Government break the rule of law in a way that is “unacceptable”. What—pray tell, Lord Chancellor—is an acceptable way to break the law? I am sure that the thousands of ordinary men and women who have been fined for breaking lockdown restrictions will be very interested to know the answer to that question.
The Attorney General tells us that the English doctrine of parliamentary sovereignty means that she is happy to support the Bill; she cites the case of Miller I. Seemingly, she is in ignorance of the fact that at paragraph 55 of its judgment on that case, the UK Supreme Court affirmed that
“treaties between sovereign states have effect in international law and are not governed by…domestic law”.
If she were capable of applying the most rudimentary legal analysis, she would realise that that means that, so far as international law is concerned, the English doctrine of parliamentary sovereignty cannot supersede the UK’s freely given agreement and obligations in the withdrawal agreement.
I am ashamed to say, as a member of the Scottish Bar, that my fellow Scottish advocate, the Tories’ man in Scotland, the Advocate General, also seems to think it is okay to defend the Bill. I can only assume he is happy to ignore the fact that, in seeking to oust the jurisdiction of the Court of Session in respect of judicial review, clause 45 breaches another treaty—the treaty of Union, of which we have heard much this evening, article 19 of which protects the supervisory jurisdiction of the Court of Session.
The Prime Minister and others have described the Bill as a necessary safety net to protect the Union, but if he looks at the opinion polls in Scotland, including the one commissioned by his own Government, or reads the newspapers over the weekend, he will realise that far from protecting the Union, the Bill will put a final nail in the Union’s coffin.