Scottish Government: Ultra Vires Expenditure

Lord Howell of Guildford Excerpts

Thursday 9th March 2023 Lords Chamber

[Lord Offord of Garvel (Con)]

What is emerging from this very interesting leadership debate—what the newspapers are now calling civil war in the Scottish National Party—is that the obsession with independence has got in the way of their running a competent government to focus on the priorities of the people of Scotland. It might be worth noting that they have been in power for 15 years and during the first seven, First Minister Alex Salmond did manage to move the vote from 30% to 45%, but the second First Minister has actually gone backwards. What is now being debated in this leadership campaign is the need to focus on the priorities of the people of Scotland and get away from this independence obsession.

[Lord Howell of Guildford (Con)]

My Lords, I do not quite know how this Question got on to Scottish foreign policy. Will my noble friend bear in mind that although foreign policy is a reserved matter and not devolved, the Scottish international footprint is colossal and its influence very great? I think there is some justification in the feeling that Scotland has not in the past had adequate consultation and co-operation with foreign policy-making here in London. Will he therefore remind his colleagues in the Foreign, Commonwealth and Development Office that they should take full account of the power of the Scottish imprint and its influence on the international scene in promoting the United Kingdom generally?

[Lord Offord of Garvel (Con)]

I thank my noble friend for pointing that out. The Scottish diaspora is large and international, but international engagement is mostly focused on trade and is done by the Department for Business and Trade. Trade is a reserved matter, but it is also legitimate for Scottish companies to promote their activities internationally, along with the cultural aspect we have talked about. They can legitimately do that within the machinery of the UK Government, and we must allow them to continue to do so. We are just making sure that we do not have a separatist agenda being promoted to countries that I have to remind that the United Kingdom is still united.

Northern Ireland Protocol Bill

Lord Howell of Guildford Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I want to focus on why this Bill would, if implemented, be a manifest breach of international law. Let me identify first what is not in dispute. The Government are not suggesting that it would be proper to bring forward a Bill which, if implemented, would breach international law—and quite rightly so. The Government also do not dispute that the Bill would resile from important aspects of the protocol and that this would be a breach of international law, unless they can rely on the doctrine of necessity. There is also no dispute about the criteria for invoking the doctrine of necessity. Your Lordships have heard that the Government must show that their action

“is the only way for the State to safeguard an essential interest against a grave and imminent peril”,

and the Government accept that necessity cannot apply if

“the State has contributed to the situation of necessity.”

The Government cannot dispute these criteria, because they are set out in Article 25 of the International Law Commission’s Draft Articles on state responsibility 2001, a codification of the basic rules of international law.

It seems to me that there are three reasons why the Bill, if implemented, would plainly breach international law. The first has already been addressed by the noble Lord, Lord Howard. The Bill is not the only way to deal with the perceived problem. The noble Lord rightly drew attention to Article 16, a mechanism in the protocol for addressing

“serious economic, societal or environmental difficulties”.

I entirely agree with what he said. But there are other problems. The second problem is that there is no “imminent peril”. The Government have been complaining about the protocol for many months—indeed, since soon after we signed it. And even if these fundamental difficulties were somehow to be overcome, there is a third fundamental difficulty: the Government have themselves caused the perceived problem, or at least substantially contributed to it. We signed the protocol in order, as then Prime Minister Boris Johnson said, to “get Brexit done”.

The Minister, the noble Lord, Lord Ahmad, in opening this debate, and the noble Lord, Lord Dodds, listed the difficulties that are caused, they say, by the protocol. Well, the Government should have thought about that before signing it. The International Law Commission’s notes to Article 25 point out, at paragraph 20, that the International Court of Justice has held that a state cannot rely on necessity when it has,

“‘helped, by act or omission’”

to bring about the situation of which it now complains. It is elementary that a state cannot sign a treaty and then seek to resile from it on the basis that the terms it has agreed damage the interests of the signing state.

The Government then say, “Yes, but the EU is not applying the protocol in good faith”—the noble Lord, Lord Forsyth, referred to bloody-mindedness, as he put it, by the EU. But there are mechanisms for resolving a dispute about the obligations of the parties to the protocol. We agreed, by Article 12, to the jurisdiction of the Court of Justice in Luxembourg to resolve disputes. The Government and the noble Lord, Lord Forsyth, may not like it, but that is what we agreed to in the protocol.

[Lord Howell of Guildford (Con)]

The noble Lord speaks with great authority and expertise—I have heard it often before and it is very good indeed—but does he think Articles 49, 50, 51 and 52 of the Vienna Convention on the Law of Treaties also have relevance and allow some scope to move away from the narrow confines of the treaty as it stands now, when the other parties may be breaking it in some way?

[Lord Pannick (CB)]

I think the noble Lord refers to obligations of good faith. The answer is that the protocol sets out a mechanism, as I said, for resolving the dispute between the parties—the UK and the EU—as to whether each is complying with its obligations. The United Kingdom cannot say that the test of necessity is satisfied when the protocol sets out a dispute-resolving mechanism.

I agree with the excellent speeches by the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis: this is a manifest breach of international law and I very much hope that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, will address these points when he answers this debate.

--- Later in debate ---

[Lord Howell of Guildford (Con)]

My Lords, I cannot pretend to offer any better ideas than anybody else about how to get Stormont going again but I must say that I sense a change of mood now in this whole situation and some welcome changes too in the wider context of the issue which, even if they are medium term or long term, can feed back positively into the immediate. So while the world drifts dangerously towards nuclear war with Russia and the Chinese carry out extending their sphere of influence and subverting Commonwealth members, among other countries, and while we are, as my noble friend Lord Skidelsky said in a remarkable speech last night in this Chamber, in effect in a war situation, I feel we can at least say that here in the British Isles there is one age-old problem that may just possibly be moving forward on the right lines.

Why do I say that? Let me enumerate some positive aspects, while not denying the negative ones. First, we are seeing distinct signs of a change of tone both in Brussels and in London, and of course in Dublin in recent days. The argument about the protocol—the one that says that one side wants changes in the protocol itself and the other side says it agrees to changes in the way it is administered but cannot open the protocol itself—is a classic diplomats’ dilemma. In the right atmosphere it really ought to be resolvable by our proverbially efficient and effective diplomatic service, with ministerial guidance, of course.

And what exactly creates that atmosphere? Let me start with a rather personalised point. We on this side have a colleague, Steve Baker MP, who is very able but also a renowned hardliner on most things. He is now newly holding the job of Minister of State for Northern Ireland—which happens to be exactly the job that I held 50 years ago. He has discovered, as I did when I went there at the height of the violence, that there are legitimate interests all round which he and others like him had not shown sufficient respect to. He said that it was time to rebuild the UK’s relations with Ireland and make sure that the two countries went forward as “closest partners and friends”.

That tells me that the talks that are about to begin will at least start on the right note, and that, despite all the aggro about the Bill, about which we have heard a considerable amount this afternoon, it is all part of a subtle and delicate negotiating positioning which could succeed. We should be very careful—I do urge my friends and other noble Lords—about barging into and upsetting what is going on. That is why, although there is plenty of room for doubts, I shall support the Bill tonight and the vote that goes with it if we have one, and why I hope that we can be spared any further, sadly misinformed if well intentioned, American advice on this matter.

However, it is in the longer-term developments where I feel the best hope is growing and where wise unionists of any shade should face reality and, if they are skilful, take their opportunities from this situation. As I said, the mood in Dublin is clearly changing. Ireland is a rich and talented neighbour nation that we should now look on with the greatest respect and treat as our major partner in the British Isles—which we have not always done in the past, to put it mildly. Before this protocol drama began, there were even signs that the forward thinking in Dublin was to be associated with the Commonwealth. We had several meetings to that effect in Dublin. Of course, that could also be part of the glue of the future as well.

Today, Ireland is far readier to drop the endless battle about old-style reunification by violence and by claim and think about different and far more constructive kinds of unity between separate communities with two capitals on the island. Issues such as energy and transport—for Ireland is one electricity market—bind both parts together, but there are also legitimate separate and lasting identities which keep them apart. With census results showing that Northern Ireland has more Catholics and Protestants for the first time, and with Sinn Féin majorities on both sides of the border, of course the conversation will change, and we will hear more about border polls. That will have to be faced. I myself bear some responsibility for that, having taken the Northern Ireland (Border Poll) Act 1972 through the House of Commons under the late Willie Whitelaw, which of course was reaffirmed in the 1998 Good Friday agreement and which Ted Heath talked about as

“a system of regular plebiscites.”

The latest survey by LucidTalk in August showed that those wanting reunification remain a clear minority. The clever unionist co-operation with Sinn Féin in Belfast can build on that to give Northern Ireland a permanent, stable and prosperous position in the future, as a constitutional part of our United Kingdom but also a good—a very good—neighbour of the Republic.

Queen’s Speech

Lord Howell of Guildford Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Howell of Guildford (Con) [V]]

My Lords, I join others in offering warm congratulations to the noble Baronesses, Lady Fraser and Lady Merron, on their maiden speeches. It is a pleasure to follow a fellow ex-chair of the Commons Foreign Affairs Committee and a fellow Welshman.

Trying to halt Scottish independence and maintain the union by infrastructure largesse—seemingly partially bypassing the Edinburgh Government in the process—appears to be the current policy thrust. It will fail and, on the contrary, will greatly strengthen the support for departure. The same is bound to go for Wales. Scotland is a proud, ancient and supremely talented nation with an amazing world cultural footprint. For over three centuries it has played a leading part in the most successful marriage or alliance between nations ever recorded, whether we are talking about the Enlightenment, the Industrial Revolution or—like it or loathe it—the largest empire in history.

Scotland rightly seeks a voice on the international stage and in the comity of nations commensurate with its influence and potential. Policymakers in London do not always seem to understand this. The British diplomatic establishment, which prides itself on its deep knowledge of 160 or more nations around the world, has tended to forget the one right next door. This is one place where we really do want to see a dedicated union board member of the kind proposed by my right honourable friend Michael Gove; it is urgently needed.

Of course, the arguments for staying close to the rest of the United Kingdom seem blindingly obvious to many of us on both economic and security grounds, but those who think that this will prevail against nationalist and independence emotions are ignoring history, as the noble Baroness, Lady Crawley, made out in her crystal-clear speech. The economics of a trade break with England may seem crazy. The world is now an increasingly dangerous place for small nations, as many have found out to their cost. Economic infiltration from Russia or China is widespread, and lethal cyber intrusion and hacking can literally switch a nation off. Edinburgh already seems to be toying dangerously with deals with China, so we hear.

To counter these powerful and dangerous trends, first, we need to press the SNP far harder than we have so far about what it really means by independence beyond just disliking the UK. Does it want a separate republic, as some are calling for, or the continuation of a joint monarchy and constitution, presumably including currency and Armed Forces? Does it want Commonwealth membership, EU membership or both?

Secondly, Scotland must be offered a place in a better union than the one it is part of now. That is the new reality, and the constitutional framework of our whole nation is going to have to adapt and evolve to reflect it. Gordon Brown, the former Prime Minister, is right that change on this front has to come, and could well affect your Lordships’ House fundamentally. However, it needs to be gradual and happen step by step. Attempting a new settlement in one fell swoop would be fatal. A start in this House would be much better scrutiny of government by strengthening both the resources and the powers of our committee system, as many of your Lordships have urged.

Technology can be our friend in building a better union, as the absolutely excellent Dunlop report recommends; I greatly look forward to hearing from the noble Lord, Lord Dunlop, shortly. A far more intimate, practical, continuous and daily—indeed, hourly—two-way contact between Westminster and Whitehall and the devolved Governments, peoples and businesses is now fully possible thanks to the miracles of connectivity and big data. A truly innovative and modern union, unlike any traditional federal structure anywhere else in the world, based on deep respect and fully sensitive to national feelings, can be steadily devised and assembled if we are clever.

I detect that inside the Executive and the English Civil Service there is now, belatedly, some acknowledgement of that fact. Of course, the question arises as to whether Scotland, like Northern Ireland, should have a separate civil service. I always found the Northern Ireland Civil Service absolutely superb to work with, even under the most challenging conditions. But meanwhile, here in both Houses of this union Parliament, we will also have to make major adaptations. If we are not to face grievous harm and a dark, dangerous and divided future, this will need to begin very soon indeed. There is no “normal” after the pandemic to which to return.

Bailiff Reforms

Lord Howell of Guildford Excerpts

Thursday 17th October 2019 Lords Chamber

[Lord Keen of Elie]

It would be premature to commit on a matter still under consideration by the ministry. We have proposed as a manifesto commitment to introduce the breathing space scheme, which will give debtors 60 days in which interest charges on their debts are frozen and in which they can seek further advice. We also established the Money and Pensions Service in January 2019, merging three former organisations to provide free-to-use financial guidance for those who find themselves in debt.

[Lord Howell of Guildford (Con)]

My Lords, I think I am right that paragraph 14 of Magna Carta undertakes to halt unreasonable and unfair bailiff entry behaviour. Do we not need to proceed rather carefully on this matter?

[Lord Keen of Elie]

I bow to the noble Lord’s detailed knowledge of Magna Carta on this point.

Northern Ireland: Political Developments

Lord Howell of Guildford Excerpts

Tuesday 28th March 2017 Lords Chamber

[Lord Dunlop]

As the discussions are ongoing I do not want to talk about what must necessarily be confidential discussions. However, I know of the noble Lord’s long-standing interest in this subject and would merely reiterate that there has been progress on these issues in the immediate preceding period.

[Lord Howell of Guildford (Con)]

My Lords, the Statement spoke about the parties coming together to deal with the Brexit situation. Is it, as a matter of fact, the position that the people of Northern Ireland still have the statutory right to organise a referendum on their constitutional position, unlike Scotland which does not have that right unless it is granted? Is that now the legal position? I declare an interest as a Minister who took the original Northern Ireland referendum Bill through the House of Commons in 1972.

[Lord Dunlop]

Under the Belfast agreement, arrangements are set out for the circumstances in which a border poll could be held. However, the Secretary of State has made it clear that the conditions for such a poll are not currently satisfied.

Scotland: Fiscal Framework

Lord Howell of Guildford Excerpts

Wednesday 16th December 2015 Lords Chamber

[Lord Dunlop]

We have reordered the Bill so that the parts most relevant to the fiscal framework will be dealt with at the end of Committee. As I said at Second Reading, that gives us the time and space to reach agreement, so that this House can give the agreement full scrutiny.

[Lord Howell of Guildford (Con)]

Can my noble friend explain what the effect will be on the fiscal framework of the continuing slide in the price of crude oil and the likelihood that it will go down considerably further?

[Lord Dunlop]

Clearly, the reduction in the price of oil shows how wise the Scottish people were in their vote last September, and it underlines the key importance of pooling and sharing risks and resources across the United Kingdom. We really are stronger together.