Rule of Law

– in Westminster Hall at 10:57 am on 7th October 2020.

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Photo of Patrick Grady Patrick Grady SNP Chief Whip 10:57 am, 7th October 2020

On a point of order, Mr Hollobone. Would it be okay if I stayed here while my colleague makes his introductory speech?

Photo of Neale Hanvey Neale Hanvey Shadow SNP Spokesperson (Health Team Member) 11:01 am, 7th October 2020

I beg to move,

That this House
has considered the rule of law in the UK.

Although I may not be a lawyer, as a professional I understand the need for the highest standards of professional conduct and, like every parent, I cherish my responsibility to instil in my children a deep understanding of right and wrong. How that develops is vital to their future and how they make their way in the world. When our children are little, we guide their understanding through the language of good choices and poor choices, working with their teachers and others to celebrate their successes and to use natural and restorative justice techniques to support their understanding of the impact and consequences of the choices they make.

As our children move into adolescence, we necessarily begin a process of refining that understanding, which manifests in a natural pushing against the boundaries of childhood and a process of reflection, leading to the development of their internal moral and ethical codes, which they then carry into adulthood.

Like any parent, I want the very best future for my children, so I take great care to act in a way that supports and guides the development of the values of honesty, integrity, respect and compassion, underpinned by a strong sense of self and a high degree of self-awareness. It is not always easy, but I always strive to demonstrate that I am a human, that I am fallible and that I am able to take ownership of any error in judgment, to apologise for any harm I may have caused, however inadvertently, and to embody the principles of restorative justice by making amends in a sincere and transparent way.

My hope is that, by my actions, my children will understand the value of truth, contrition and atonement. However, that is increasingly difficult when the actions of those in power suggest that such values and principles only exist for others—that their word is always negotiable and never their bond or guarantee. What does that say about the character of those who lead us?

We have a Prime Minister whose past includes well-documented and repeated incidents of racist language. Despite having been given ample opportunities to apologise, he has steadfastly refused to do so. In the absence of any sense of responsibility or of the value of truth there can be no apology, no contrition and no atonement. While the Government may wish those matters away, they still stand as a measure of the man and of all those who stand in his defence.

However, the PM is not alone in that regard. At the height of the global pandemic, in which the UK has one of the highest mortality rates in the world, this Government’s Health Secretary regularly obfuscates when pressed on matters of importance. And what of the UK Government’s man in Scotland, the right hon. Member for Dumfries and Galloway (Mr Jack)? He is stuck on his repeat with his claims of a “power surge”, so lacking in substance that he cannot produce any evidence to support its existence. I could question his motives, but I do not need to. Speaking at the Conservative party conference yesterday, he said about the United Kingdom Internal Market Bill that “they”—the SNP

“don’t like the bill, which makes me like it even more.”

If that is what passes in the Conservative party for an appropriate motivation to enact legislation—legislation that will have a demonstrably damaging effect on people’s livelihoods, jobs and businesses and Scotland’s democracy —that is shameful.

The right hon. Gentleman’s words reveal the dangerous and ideological grip that this Government are in, not just in observing the law but in writing it. If that type of casual comment is anything to go by, it is little wonder that the Prime Minister and his Back Benchers get such pleasure from their contentious behaviour towards Scotland, where the wildly exaggerated promises of Brexit are readily discarded but a casual comment made during Scotland’s 2014 referendum is held as inviolable. The Prime Minister should consider that the tissue of lies that was the vow used to secure that vote and its immediate betrayal will never be forgotten in Scotland. Those promises of devo-max ring hollow like never before as this Government impose their will on a Scotland that did not vote for them.

Prior to 2016, the Sewel convention performed a useful function, ensuring that the devolved legislatures engaged with the UK’s legislation to address problems early on. It engendered a culture of mutual respect and was based on trust, compromise, and transparent and open dialogue, but Brexit has exposed the vulnerability of devolved power in the face of a Conservative UK parliamentary majority.

Despite a clear majority remain vote in Scotland and Northern Ireland, the unilateral enactment of the European Union (Withdrawal) Act 2018 without the consent of the Welsh or Northern Irish Assemblies or the Scottish Parliament was described by Aileen McHarg, professor of public law at Durham University, as threatening the Sewel convention “almost to destruction”. She went on to say that while it was possible to depart from the Sewel convention, UK ministers had failed to give constitutional grounds for doing so, and that

“To make an exception to a rule, what is required is an explanation of why its underlying rationale either does not apply, or is overridden by some competing principle.”

Perhaps that is a point that the Minister could clarify today. Professor McHarg further cautioned that such a

“radical re-reading of the Sewel Convention…would seriously undermine the protection it offers for devolved autonomy.”

So much for a power surge.

Professor McHarg is not alone. In January, the Institute for Government stated that the Sewel convention had been broken by Brexit, and that reform is now urgent. Although both the Scottish and Welsh Governments put forward substantive proposals for such reform, such as making the convention legally enforceable or adding a stage to consider the views of the devolved Administrations, this Government were reluctant to engage. The United Kingdom Internal Market Bill makes it abundantly clear that their idea of reform has been to do the complete opposite. As my hon. and learned Friend Joanna Cherry recently opined,

“The Sewel convention is about as much use for defending devolution as a chocolate teapot”.

The Bill also shows a flagrant disregard for the Sewel convention, one of the key planks of the UK’s unwritten constitution. Clause 46 attempts to strip away powers from Scottish Ministers in clearly defined devolved areas of power. As Baroness Helena Kennedy QC said of the Bill last week,

“It goes against the Sewel convention. It goes against our traditional constitutional workings and conventions. This is a really shocking business, and we shouldn’t take it lying down”.

Indeed, the very mechanism that exists to protect devolution is toothless in the face of the United Kingdom Internal Market Bill and its facility to drive a coach and horses through the devolution settlement.

However, the further betrayal of the promises made to Scotland in 2014 is not the only impact of the Bill. It has also alerted the international community of something Scotland has known for a considerable time: that the word of the UK Government means nothing. Legislating to break international law in the midst of efforts to forge trade agreements with the EU and other nations across the globe—agreements that the UK Government presumably hope will be binding on both sides—is a very peculiar way to demonstrate the necessity of good faith.

On 24 September this year, the Attorney General asserted in this House that, as a matter of domestic law, it was proper for Parliament to pass legislation that might breach

“international law or treaty obligations.”

Fortunately, my hon. and learned Friend the Member for Edinburgh South West was on hand to raise the following question:

“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’.”

She then asked:

“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?”—[Official Report, 24 September 2020;
Vol. 680, c. 1125-1126.]

However, it quickly became evident that not only had the Attorney General missed the point of law by confusing Miller 1 with the Miller 2 and Cherry cases—she must have been taking lessons from her boss by trading playground taunts as a substitute for substance and mounting an undignified attack on my hon. and learned Friend and the Scottish Government.

Following the point of order and an impromptu celebration from my hon. and learned Friend given her great victory for the rule of law made in Scotland, the misunderstanding was clarified, as one esteemed commentator opined that it was a case of

“Mixed Millers from the attorney general.”

However, there was no further response from the Attorney General. Perhaps we can hear one today.

It is worth noting that the Attorney General also raised the matter of the Scottish Government’s named person scheme when they were found to be in breach of international law, but there is little by way of equivalence. The Supreme Court ruled that although the named persons proposal was unquestionably legitimate and benign, some of the provisions breached the rights to privacy and family life under the European convention on human rights. Unlike the UK Government, the Scottish Government accepted the ruling without question and introduced a Bill to address the concerns of the court. That response to a court ruling stands in stark contrast to the UK Government, who have pressed on with their legislation regardless, despite a flood of criticism from some of the most senior legal voices in the country.

The SNP Scottish Government did not complain about “activist” or “leftie” lawyers or suggest that judges should have their wings clipped; they welcomed the role of the courts in holding the Executive to account, and see it as a crucial part of a healthy democracy. I gently suggest that the UK Government could learn a lot from Holyrood’s approach. In pursuing a clear breach of international law, UK Government Ministers are now also in breach of the ministerial code.

As confirmed in the Court of Appeal in 2018, the ministerial code still mandates compliance with international law. Furthermore, the Attorney General’s justification that treaty obligations become binding only to the extent that they are enshrined in domestic legislation is nonsense: they become enforceable before domestic courts only if incorporated by legislation. The Government’s reliance on internal law to justify their position does not in any way affect the fact that the Bill places the UK in breach of its international treaty obligations. It was therefore of little surprise to read the reaction of the Financial Times legal correspondent, who described the Attorney General’s legal opinion as

“first-term, first-year undergraduate tosh”.

I should not need to say this, but fulfilling obligations under international treaties is one of the most fundamental responsibilities of any state that claims to be a responsible member of the international community. International law governs the making, interpretation and termination of international treaties. Most importantly, the Vienna convention on the law of treaties 1969, which the UK signed in 1970 and ratified in 1971, provides in article 26 that

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

That article reflects a very long-standing principle of international law: “pacta sunt servanda”—agreements must be kept. That is a basic principle of customary international law, and as such, is also part of English common law. It is key to the very existence of a rules-based international order.

In recent years, we have seen the UK call on the Iranian, Chinese and Russian Governments to respect their commitments under international law. It is difficult to see how the UK will be able to conduct such conversations with any credibility in future. To that end, one can only conclude that the consequences for the UK’s international standing and reputation have been deeply damaging.

According to the Foreign Secretary, however, he has met no one who thinks that the UK is not a defender of the international rule of law in the wake of that controversial legislation. That statement lacks any credibility. I will give a flavour from some people the Foreign Secretary may meet. The former Prime Minister, Mrs May, asked

“how can the Government reassure future international partners that the UK can be trusted to abide by the legal obligations in the agreements it signs?”—[Official Report, 8 September 2020;
Vol. 679, c. 499.]

Former Prime Minister Sir John Major has said:

“Our signature on any treaty or agreement has been sacrosanct…If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained.”

Sir Roger Gale said:

“Seeking to renegotiate the Northern Ireland protocol will be regarded worldwide as an act of bad faith.”

Nancy Pelosi, the Speaker of the House of Representatives, said:

The UK must respect the Northern Ireland protocol as signed with the EU to ensure the free flow of goods across the border. If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.”

Finally, Amal Clooney, the former UK special envoy on media freedom, said:

“very sadly, it has now become untenable for me, as special envoy, to urge other states to respect and enforce international obligations while the UK declares that it does not intend to do so itself.”

I could seriously go on and on. In a recent Foreign Affairs Committee sitting, my hon. Friend Stewart Malcolm McDonald raised the Sino-British joint declaration, which the Foreign Secretary has accused China of breaking by forcing controversial national security legislation on Hong Kong. In response, the Foreign Secretary said:

“What I think you’re trying to neatly do is draw some moral equivalence or substantial equivalence between the two and I think it’s crazy, I think it’s absolute nonsense.”

He also insisted that

“we haven’t broken international law” yet, instead saying that the legislation is necessary because of

“frankly some of the aggressive behaviour” from Brussels.

That got me thinking. Should Scotland also take a similar tack, and introduce the legislation that we feel is necessary because, frankly, of some of the aggressive behaviour from this UK Government? Or is this more a case of “do as I say and not as I do”? Of course, it is not just the United Kingdom Internal Market Bill that undermines the devolution settlement and the Union; the planned independent review of administrative law, which is no small matter, is set to target the crucial judicial review process following the successful use of that mechanism to prevent the unlawful prorogation of Parliament, and that inquiry poses a danger to the Union.

It is important to reiterate widely held concerns about contracts recently awarded by this Government. Data analysed by The Guardian shows that in response to covid, state bodies have awarded at least 177 contracts worth £1.1 billion to commercial firms. Of those contracts, 115— with a total value of more than £1 billion—were awarded under the fast-track rules, bypassing competitive tenders. Of course, that is nothing new from the UK Government. Last year, when Chris Grayling handed a £13.8 million ferry contract to Seaborne Freight, with no tender process, despite the fact that the company owned no ships, that led to Eurotunnel suing the Government, who paid out £33 million in settlement just before the case was to go to court. In the meantime, Seaborne Freight has gone into liquidation, owing £2 million.

Today, I am focusing on the party of government, because they are in Government, but I make no exception for others, regardless of their political stripes, who abuse the power that they are trusted to carry as a means to nefarious or personal ends. The party of law and order appear to have become the party of lawlessness and disorder. I ask the Minister to ask the Attorney General the question on the lips of parents up and down these islands: how can we teach our children right from wrong when those in power are seen to abuse it, when those who make the law break the law and when the protectors of the people throw their best interests to the wind in pursuit of self-interest? By their failure to observe the rule of law, the Government diminish us all.

Photo of Michael Ellis Michael Ellis The Solicitor-General 11:20 am, 7th October 2020

It is a pleasure, as ever, to be the Minister here at Westminster Hall. I thank Neale Hanvey for raising this issue and I congratulate him on securing the debate.

On the rule of law, the freedoms and protections that we all enjoy are crucial. That is an important constitutional principle. It demands equality before the law. It demands access to independent and impartial justice, a Government subject to the law, and law that is clear, unambiguous and concise. The duty of the Law Officers of the Crown is, at least in part, to ensure that the Government act lawfully at all times—that is, that Ministers of the Crown and civil servants act in accordance with the law.

As the hon. Gentleman has made clear, his reason for requesting the debate today was not so much for a general discussion on the rule of law—important though that is—but about the very specific provisions of the United Kingdom Internal Market Bill. I will say a few words about the Bill and the rule of law. The Bill that the Government tabled is clear, and the Government have been clear throughout that they are acting in full accordance with UK law and the UK’s constitutional norms, which have been an example and an exemplar around the world for centuries. The Bill is currently being considered in the other place, having comfortably passed Third Reading in the House of Commons by 340 votes to 256.

Before I move on to legal aspects of the Bill, I note that there will be no change to the powers that the devolved Administrations already have as a result of it. The vast majority of powers with devolved competences returning from Brussels, as they will do from 1 January, will go straight to Holyrood or Stormont or Cardiff Bay. Those include, for example, agricultural measures, air quality—very important—and energy efficiency of buildings, and also elements of employment law. All those areas will go from Brussels straight to the devolved competences. That will mean that the Scottish Parliament, the Welsh Parliament and the Northern Ireland Assembly, which are already among the most powerful devolved Administrations anywhere in the world, will have even more powers. The hon. Gentleman should be delighted by that.

Returning to the rule of law, this House has extensively debated what are now clauses 44, 45 and 47 of the Bill and the interaction of those clauses with the UK’s international law obligations. The Government have explained why the inclusion of those clauses are the actions of a responsible Government to provide a safety net. As I speak, our UK representatives are working in the Joint Committee to try to resolve these difficulties, but, as a responsible Government and a Government for the whole Union of the United Kingdom of Great Britain and Northern Ireland, we must prepare. We have a duty to prepare for all eventualities. We cannot allow the peace process, or the UK’s internal market, to inadvertently be compromised by unintended consequences either of the Northern Ireland protocol in the withdrawal agreement, or anything else. We need an insurance policy. We need a safety net to make sure that our Union—this precious Union—is not broken apart by these agreements.

Protecting the Union is the highest priority. To provide that safety net, the Government considered it appropriate to ask Parliament to provide a means of addressing these issues if the genuine and earnest attempt by the UK’s negotiating team to resolve these conflicts does not succeed. Providing that safety net reflects the difficult and highly exceptional circumstances in which we find ourselves, because we cannot guarantee the result of Joint Committee negotiations. It is, therefore, the only way of ensuring the effectiveness of other more fundamental provisions of the Northern Ireland protocol. These provisions guarantee Northern Ireland’s constitutional status within this kingdom under the Belfast Agreement, and guarantee that Northern Ireland would be part of the United Kingdom’s customs territory. Left to its own devices, and without the Joint Committee to iron out the creases, these inconsistencies would only get worse over time. It may be that the Joint Committee is able to resolve matters, but we must set up these legislative safety nets just in case.

It goes without saying that this does not change the key principle that continues to guide the UK’s approach to international relations and international law. We remain a state that accepts that we are obliged to discharge our treaty obligations in good faith. Our word is our bond. Other sovereign states who deal with us know that. They know it very well, they respect it, and they act accordingly, as in the case of Japan, which recently concluded a free trade agreement with us. There is also an understanding around the world—the Foreign Secretary alluded to it—

Photo of Michael Ellis Michael Ellis The Solicitor-General

I will just finish my sentence. There is an understanding that decoupling from the European Union is a unique—indeed, unprecedented—situation with the added complexity of the peace process and Northern Ireland, and the unstable political landscape that prevailed before the last election. In the difficult and highly exceptional circumstances in which we find ourselves we must, therefore, consider the fundamental principle of parliamentary sovereignty.

I have not been given an awful lot of time, but I must just say that the principle of parliamentary sovereignty means that it is entirely constitutional for Parliament to enact legislation even if provisions within that legislation, once commenced, would affect the UK’s treaty obligations. I will just make this point: section 38 of the European Union (Withdrawal Agreement) Act 2020 reiterated, in terms, that parliamentary supremacy “subsists” notwithstanding the provisions of the withdrawal agreement with express reference to direct effect, the very thing that may potentially be disapplied here. In other words, Parliament had already prepared for that eventuality. It is there in black and white in section 38.

In the United Kingdom, treaty obligations only become binding in domestic law to the extent that they are enshrined in domestic legislation. Whether to enact or repeal legislation, and the content of that legislation, is for this Parliament and for this Parliament alone. It is a dualist approach. It is not uncommon, and it is not rare. In fact, it is shared by Canada, Australia and New Zealand. Parliamentary scrutiny of the United Kingdom Internal Market Bill so far has served to reinforce Parliament’s central role in the UK’s constitution.

In the last minute that I have, I wanted to reiterate this point: other states known for upholding the rule of law have passed domestic legislation that ran contrary to their treaty obligations. For example, in 2018 the Canadian Government introduced domestic legislation to legalise cannabis. That was in breach of specific provisions of the existing treaty obligations under three United Nations narcotics conventions. The Canadian Government acknowledged the breach, but they stated that their approach was still consistent with the overarching goal of those conventions. Debates such as this are an important opportunity to explain how the Government are upholding the rule of law while making provision for the internal market in the UK and retaining the ability to act decisively in the interest of the whole United Kingdom following our departure from the European Union earlier this year, so I thank the hon. Member for Kirkcaldy and Cowdenbeath for raising the issue today.

Motion lapsed (Standing Order No. 10(6))

Sitting suspended.