Domestic and International Law Compliance

Attorney General – in the House of Commons on 24th September 2020.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

What recent assessment she has made of the effectiveness of her role in ensuring compliance with (a) domestic and (b) international law.

Photo of Suella Braverman Suella Braverman The Attorney-General

On 10 September, I wrote to Select Committee Chairs to set out the Government’s legal position on the withdrawal agreement and the provisions in the UKIM Bill, and that position has not changed. We will ask Parliament to support the use of clauses 42, 43 and 45 of the UKIM Bill, and any similar subsequent provisions, only in the case of the EU being engaged in a breach of its legal obligations and thereby undermining the Northern Ireland protocol and its fundamental purpose. This creates a legal safety net and takes powers in reserve whereby Ministers can act to guarantee the integrity of the United Kingdom and protect the peace process. We are very clear that we are acting in full accordance with UK law and the UK’s constitutional norms.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

The Attorney General has justified her support for the Bill by reference to the domestic legal principle of parliamentary supremacy and the judgment of the UK Supreme Court in Miller. But in that case, the UK Supreme Court also said, at paragraph 55, that “treaties between sovereign states”, such as the withdrawal agreement,

“have effect in international law and are not governed by the domestic law of any state.”

The Supreme Court was quite clear that such treaties

“are binding on the United Kingdom in international law”.

Why did the Attorney General omit reference to that part of the Supreme Court’s judgment? Did she not learn the rule against selective citation when she was at law school?

Photo of Suella Braverman Suella Braverman The Attorney-General

On the principle, the dualist nature of our constitution makes it clear that international law and international treaty obligations only become binding in the UK until and unless Parliament says they do. That is a reflection of the supremacy of Parliament and of how, effectively, international law gives way to domestic law.

I am grateful to the hon. and learned Lady for several reasons. The first is for intervening in the Miller litigation. Her intervention allowed the Supreme Court to find unanimously, and hold on this point, for the sovereignty of Parliament when it comes to international law. Secondly, she has allowed me to give examples of where domestic legislatures have acted in breach of international obligations. She will be familiar with the controversial “named persons” legislation that was introduced by the SNP at Holyrood. It was ruled by the Supreme Court to be in breach of international law, namely article 8 of the European convention on human rights. Finally, I thank the hon. and learned Lady for allowing me to refer to her point about breaching the rules and the rule of law. May I gently suggest that she directs her anger closer to home: towards her SNP colleagues and those who sit on the National Executive Committee, who, as we speak, appear to be changing the rules to prevent her exclusively from standing as an MSP? Breaking the rules—the SNP could write the textbook on it!

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

The Attorney General referred to the letter that she sent to me and other Select Committee Chairs on 10 September, which included a statement of the Government’s legal position on the United Kingdom Internal Market Bill. What support, input and advice did she receive from any legal officials in her Department, or from Treasury counsel, in drawing up that statement of the Government’s legal position?

Photo of Suella Braverman Suella Braverman The Attorney-General

I thank my hon. Friend for that question. He will be aware of the Law Officers’ convention, which forbids me from confirming the fact of legal advice or the content of it, so I will not divulge any details about who may have assisted me in the drafting of legal advice. However, I am grateful to him for his contribution in finding a resolution, and particularly for his support on the Government amendments tabled earlier this week, which introduce a break-glass clause. That upholds the supremacy of Parliament, giving it an extra check and opportunity to look closely at and examine the case for taking this action. I believe that is lawful and constitutional.