Rule of Law

Part of the debate – in Westminster Hall at 11:20 am on 7th October 2020.

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

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.