United Kingdom Internal Market Bill - Committee (5th Day)

Part of the debate – in the House of Lords at 9:30 pm on 9th November 2020.

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Photo of Lord Naseby Lord Naseby Conservative 9:30 pm, 9th November 2020

My Lords, I am not a lawyer. Nevertheless, I am in my 47th year in Parliament, of which 23 were as the Member of Parliament for Northampton South. My first majority was 179. As an aside, bearing in mind what has been happening in the States, on the first count I lost by 183. On the second count, I won by seven and on the third count by 179—so who knows what might happen in the States?

In 1979, I was honoured to be a Parliamentary Private Secretary in Northern Ireland. It was a delightful two years, I have to say. It taught me patience and understanding, and it taught me to understand the sensitivities and, above all, the commitment of the vast majority of the citizens of Northern Ireland to the United Kingdom.

In May 1992, I was proposed, unopposed, to be Chairman of Ways and Means and Senior Deputy Speaker in the other place. A couple of months later, I found myself facing the Maastricht Bill—one of the two longest Bills on the Floor of the House since the war. There were 500-plus amendments and four clauses. It was on the Floor of the House for 25 days, including three all-night sittings.

Three principles drove me and my two deputies. First, there should be no tedious repetition—I wonder whether that should not be included in your Lordships’ House. Secondly, the House should make progress. We did, but we only had four clauses. Above all, the clerk said to me, “You have to remember, Michael”—I was Michael Morris then—“that the basic principle of our constitution is that ultimate sovereignty lies with the Crown in Parliament”. She drilled that into me and I have never forgotten it. It is that sovereignty to which the Government are answerable and which the rule of law upholds.

Bearing in mind this debate, during the weekend I decided to investigate in depth the legality of any Government introducing any Bill that may or would breach a treaty obligation. As it happens—because I have a few friends in the law—my attention was drawn to an article written by a highly respected QC, David Wolfson. On 10 September, he wrote an article in the Spectator. I will quote from one or two paragraphs. He says:

“The mere act of laying a bill before Parliament which, if it were passed into statute, would breach a treaty obligation (and would amend domestic legislation bringing that treaty obligation into effect in domestic law) is not itself a breach of the treaty or of international law. Nor would merely laying such a bill be itself a breach of the rule of law.

“If the legislature passed such a bill and it became an Act of Parliament, the rule of law requires the Government to proceed in accordance with it. That is what parliamentary sovereignty, or to be more precise the sovereignty of the Crown in Parliament, means. Whether passing such an Act of Parliament gives rise to a claim under the treaty ... is a separate issue. But again, there is no breach of the rule of law.

“And what is the alternative proposition? That a government is precluded by the rule of law from even laying a bill before parliament which, if passed, would put the UK in breach of a treaty obligation? Or is it to be said that the rule of law requires that such an Act of Parliament should itself be deemed by our courts to be unlawful or of no consequence?

“I see no legal basis for any such proposition. Such a bill and resultant Act of Parliament might be unwise or foolish or damaging to the UK’s interests (or wise or clever or a show of strength)—those are matters of political debate. But those are not legal questions. Nor can it make any principled difference to the analysis that—to take two points which have been made repeatedly over the past few days—the treaty in question was signed recently, or by the same government.”

Contracts—yes, they should be honoured. He says so and I believe that they should. I understand that there is a phrase: “pacta sunt servanda”. I had some difficulty passing O-level Latin. But a breach of contract does not of itself entail a breach of the rule of law. I certainly learned that in the commercial world. Breaching a treaty obligation because Parliament has so legislated does not do so either.

So none of this is to suggest, as some still say, that international law does not exist, nor that treaties do not matter. Of course it does—and they do. But for their part, the Government will argue that preventing part of the territory of the UK from being cut off economically justifies their approach, and I—and I suspect the vast majority of the British people—totally concur.

I also found out over the weekend, because I take a great interest in aeronautical matters, that Boeing is challenging the EU in the World Trade Organization court for breaking state aid rules regarding Airbus. To go back to the QC, he asserts

“a more basic—and (at least formerly) orthodox proposition: in our constitution, ultimate sovereignty lies with the Crown in Parliament. It is that sovereignty to which the government is answerable, and which the rule of law upholds.”

He then says quite clearly:

“I do not consider there is a breach of the law in the Government’s approach” and, frankly, nor do I.

People are saying that we must remind ourselves occasionally that we are not the elected House. Some of us have had the privilege of serving in the other place. They have that responsibility, not us. We are a revising Chamber, and we should do so properly. At this juncture, I see no evidence that my Government are in breach of the rule of law.

The people of Northern Ireland require our understanding. I was so grateful to listen to the speech from a former friend, the noble Baroness, Lady Hoey, who has joined us.