My Lords, it is a great pleasure to follow the noble Earl, whose work as chair of the EU Committee has illuminated the issues on this Bill, as on so many other issues that we have been debating over the years.
I agree with the speech made by the noble and learned Lord, Lord Judge. There are occasions, as this debate confirms, when clauses in a Bill raise issues of political, and indeed moral, principle of fundamental importance. This House has a responsibility to identify when that occurs.
I will make some observations on Clause 47, which has not featured in detail in this Committee debate. Clause 47 is innocuously titled “Further provision related to sections 44 and 45 etc.” Clause 47 is, however, a very substantial interference with the rule of law. Clause 47(1) says that any regulations which Ministers may make under Clauses 44 and 45
“have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.”
Clause 47(8) defines
“relevant international or domestic law” to include
“any other legislation, convention or rule of international or domestic law whatsoever.”
So whatever Ministers produce by way of regulations cannot be challenged in a court of law on any grounds.
It has been the role of the courts for well over 100 years to declare regulations null and void if, for example, they lack certainty, or if they purport to impose criminal sanctions without specific authority, or if they purport to impose retrospective penalties, or if they unreasonably discriminate between different persons or groups of persons. The Government now seek the power—an unprecedented power—to make regulations that are not subject to judicial controls, even if the regulations impose retrospective criminal penalties at the complete discretion of the Minister, for example, only in respect of supporters of a particular political party.
For Ministers to arrogate to themselves such a power, free from judicial control, sets an appalling example to future Governments and, of course, to Governments abroad. As your Lordships’ Constitution Committee, of which I am a member, concluded in its report, HL Paper 151, at paragraph 195:
“If enacted, such an exclusion of the judicial function would put ministerial regulation-making powers above the law in an unprecedented manner. It would be an unacceptable breach of the rule of law.”
I shall also say something about the argument advanced at Second Reading and repeated today by the noble Lord, Lord Lilley, that for Part 5 to confer power on the Government to breach international law is consistent with international precedents. The noble Lord said that no other Lord had answered his point, so let me try. I accept that there may be, as he says, extreme circumstances in which a state may breach international law if that is necessary to protect its own constitutional values. But one of the problems with that argument is that, in the context of the Bill, the Government are seeking the power to resile from a treaty which they entered into last year and which contains specific arbitration provisions to resolve disputes. If there are conflicts between the treaty that we signed and our constitutional values, it is extraordinary that the Government did not identify them last year before signing up to the treaty, and it is quite extraordinary that the Government are bringing forward these provisions without identifying with precision and evidence what the alleged conflict now is.
Most of important of all, even if the noble Lord, Lord Lilley, were right—and he is not—on the issues of principle, we should not be asked to authorise regulations to breach international law at the complete discretion of Ministers, without any legal controls in the way that I have sought to explain. When the noble and learned Lord, Lord Judge, divides the Committee, I shall be supporting him in the virtual Division Lobby.