Rule of Law

Lord Falconer of Thoroton Excerpts

Thursday 10th September 2020 Lords Chamber

Asked by

[Lord Falconer of Thoroton]

To ask Her Majesty’s Government, further to the remarks made by the Secretary of State for Northern Ireland on 8 September confirming that certain provisions of the United Kingdom Internal Market Bill relating to the Northern Ireland Protocol would “break international law” (HC Deb, col 509), whether they are committed to the rule of law.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, the Government have not proposed any breach of UK law. On occasions, tensions can arise between our domestic obligations and our international commitments and we will always seek to resolve these, as we have in the past. The freedoms and protections that we all enjoy rely on the rule of law; it is an important constitutional principle and, as a responsible Government, we remain committed to it.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble and learned Lord, the Advocate-General, for that Answer. Brandon Lewis’s acceptance that this Government are deliberately breaking international law will be thrown in the UK’s face for years. Expect dictators to justify murderous breaches of international law by relying on the Lewis mantra: “specific and limited”.

Demanding compliance with anti-Covid measures, yesterday the Prime Minister said:

“We expect everybody … to obey the law.”—[Official Report, Commons, 9/9/20; col. 608.]


The Home Secretary condemned Extinction Rebellion for law-breaking. The rule of law is not pick and mix, with acceptable laws chosen by the Home Secretary or an adviser in No. 10. This stinking hypocrisy chokes our country’s reputation and destroys our Government’s ability to lead at home and make agreements abroad.

In June 2018, the noble and learned Minister, a law officer, whom I am surprised to see in his place, lectured on the importance of law, describing the law officers as

“champions of the … law within government”,

and said that their

“duty … is to ensure that the Government acts lawfully at all times”.

Jonathan Jones agreed and left. Law officers and the Lord Chancellor must stand by their self-proclaimed duty or leave. Otherwise, they will be dismissed as long on self-importance and short on the backbone that their great offices require.

I have two questions. First, how is the admitted breach of international law consistent with the UK’s commitment to the rule of law? Secondly, on what basis does he, as a law officer, remain part of the Government?

[Lord Keen of Elie (Con) [V]]

My Lords, I think the noble and learned Lord broke up slightly when he was asking his second question, but I certainly understood the drift of his remarks.

[Lord Falconer of Thoroton (Lab)]

Secondly, on what basis does he, as a law officer, remain part of the Government?

[Lord Keen of Elie (Con) [V]]

I thank the noble and learned Lord.

My Lords, from time to time, as I indicated, tensions occur between our domestic legal obligations and our position with regard to international law. Indeed, in 1998, the then Labour Government passed the Human Rights Act, including Section 19 that required statements of compatibility to be made when Ministers introduced legislation. Interestingly enough, Section 19(1)(b) had an alternative statement, which required the Minister to say that

“he is unable to make a statement of compatibility”

with our international obligation but that

“the government nevertheless wishes the House to proceed with the Bill.”

In 2002, the Labour Government introduced the Communications Bill with just such a certificate, because it was perceived that Clause 309 of that Bill could be considered to violate our international obligations under Article 10 of the convention. From time to time, we face these tensions.

Here, there is a very real tension between the direct effect of EU law pursuant to Article 4 and what would occur if we had no agreement at the end of the transition period and there was no determination by the Joint Committee as to the way forward under the Northern Ireland protocol. That is because there are other provisions apart from Article 4. There is Article 4 of the protocol itself, which determines that Northern Ireland is part of the UK’s customs area. There is Article 16 that deals with societal and economic pressures that could lead to us being in breach of the Belfast agreement. All these have to be considered.

Against that contingency, Ministers considered it appropriate to provide, or ask Parliament to provide, a means of addressing these issues. At the end of the day, it will be for the sovereign Parliament to determine whether Ministers should be able to deal with such a contingency. Indeed, it will be for this House to determine whether it considers it appropriate for Ministers to be able to deal with such a contingency.

In these circumstances, I continue in post and continue to advise, encourage and stipulate adherence to the rule of law—understanding that, from time to time, very real tensions can emerge between our position in domestic law and our position in international law. It is not unprecedented for legislation passed by this Parliament to cut across obligations taken at the level of international law. In those circumstances, domestic legislation prevails.