Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Lilley and Lord Clarke of Nottingham

Report stage
Monday 4th March 2024 Lords Chamber

[Lord Lilley (Con)]

My Lords, I have listened to and read the debates so far with great respect. They have been dominated by distinguished noble Lords who are lawyers, and I am not. I want to raise two questions of fact and ask those noble lawyers, and indeed the distinguished prelates, why they have not mentioned them until now.

The first point has just been mentioned by my noble friend Lord Howard. Contrary to what has been asserted many times—that Parliament cannot by law state whether or not a country is safe—in 2004 the Blair Government did just that. They introduced legislation which created an irrebuttable presumption that a number of listed countries were safe. It was subsequently tested in the courts and upheld. Why have none of the noble Lords who have asserted that we cannot do that mentioned and dealt with the fact that we have done it in the past?

The second factual point was raised by the noble Lord who spoke from the Lib Dem Benches. He said that, if we do this sort of thing in the Bill, which gives us the right to override international law and not necessarily to respond to decisions and demands of the European court, we will forfeit our respect and ability to influence people in the international arena. Why does he, and others who have made similar points, not mention the fact that the French Government have done just that? They have returned an asylum seeker to Uzbekistan despite the order of the European court that they should not, and despite even a ruling of the Conseil d’État that they should bring him back. Have they lost all respect in international fora? Have they lost any ability to influence public opinion internationally? Why does that not get mentioned in this place?

[Lord Clarke of Nottingham (Con)]

I cannot claim to remember this clearly, but did anybody challenge with evidence the earlier cases that my noble friend tries to cite as a precedent? If anybody had had evidence showing facts to be contrary to what was then laid down in statute, does my noble friend think it would have survived a challenge in today’s Supreme Court?

[Lord Lilley (Con)]

I cannot say what today’s Supreme Court would do, but the supreme courts of our country in those days did entertain a challenge. Greece, in particular, was not thought to be safe, and presumably they would not think now that France is safe. They upheld the right of the Executive to make those decisions and did not try to supersede them or consider evidence as to whether the accusations were correct.

United Kingdom Internal Market Bill

Debate between Lord Lilley and Lord Clarke of Nottingham

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

[Lord Lilley (Con)]

My Lords, we have listened to many moving and powerful speeches from right reverend Prelates and noble and learned Lords about the abstract principles raised by this Bill and, particularly, by Part 5. They are very important principles. It is a particular privilege to follow the speech of the noble Lord, Lordusb Dodds, which has been the first to spell out the practical implications for people’s livelihoods if the withdrawal agreement is not applied in the spirit of the promises made by both sides—the United Kingdom as well as the European Union—to all the people of Northern Ireland. There are practical and constitutional consequences, which somehow have escaped the notice of every single noble Lord who has spoken up to this moment.

At Second Reading, I asked a question which I make no apology for repeating: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or with its own fundamental constitutional laws? No one in your Lordships’ House has explicitly addressed that question. Maybe that reflects how difficult our hybrid procedures make the proper and effective interchange of ideas and debate in this House, but maybe it was also because most noble Lords have framed their positions in absolutist terms: we must obey international law, full stop.

By implication, there can be no circumstances in which legal obligations under one treaty can clash with those under another or with a country’s fundamental domestic laws. However, as I pointed out before, that is not the view that other countries take. The European Court of Justice itself spelled out that, although the European Union seeks to comply with its international legal obligations,

“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.

It also says that,

“although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty.”

I do not think it is wrong to say that. If I wanted to carry forward the European Union, I would have that order of priorities, but I want to carry forward the United Kingdom, so my priorities are put first and foremost—the fundamental constitutional laws of this country, when and if they clash with an international treaty.

The German Constitutional Court has ruled that if treaties—even European Union treaties—conflict with basic German constitutional law, the latter prevails. The strange thing is that, when the EU or Germany set aside any aspect of international law that clashes with their fundamental internal laws, no one suggests that they are putting at risk the entire international framework of law or rendering themselves international legal pariahs. Why is it so contentious when we suggest that we might need to do likewise when it is not contentious for them?

Although no noble Lord in the debate explicitly answered my questions or addressed these issues, the noble and learned Lord, Lord Judge, who opened both this debate and the debate on his amendment to the Second Reading Motion expressing regret, implicitly addressed the issue in his summing up of the debate. He acknowledged:

“‘We may need these powers at some stage.’ Maybe we will; I hope not. If we do, it is perfectly open to the Government to come back to us, to Parliament, to put before us emergency legislation and … proposals, and, if they are satisfactory, to endorse them.”—[Official Report, 20/10/20; col. 1431.]


But surely, once we accept that powers regarding overall aspects of the withdrawal treaty may be necessary in future, the enabling measures in Part 5 cannot be wrong in principle. Whether we take the power now or reserve doing so for a later date in a separate Bill becomes a procedural and tactical issue, not one of principle. My own view is that having the enabling power on the statute book makes it less likely that the European Union will refuse to negotiate “in good faith” and with respect for the other party’s “legal order”—wording used in our agreement with the EU—on the issues in Part 5 and the planned finance Bill.

I have the greatest respect for the noble and learned Lord, Lord Judge, and not just for his mastery of the law but for the objective and non-partisan way in which he approaches these issues and every other. He has been kind enough to correspond with me about these issues. Like him, I hope we never need to invoke the powers in Part 5 to override the withdrawal Act, be they the powers in this Bill or in the emergency legislation that he envisages. But like him, I recognise we may need to if the EU refuses to resolve these issues by negotiating in good faith and out of respect for our internal legal order—particularly, the Act of Union, which guaranteed free and unfettered trade between Great Britain and Ireland, and the Belfast agreement, which promised no change in the status of Northern Ireland without the acceptance of both communities.

Like the noble and learned Lord, Lord Judge, I accept that if such a problem does emerge, we should try to resolve it by the procedures within the withdrawal treaty. If we cannot agree in the Joint Committee, those would most obviously include activating Article 16. As the noble and learned Lord, Lord Keen, said, these powers in this Bill will be necessary even if we invoke Article 16 of the treaty. That would not enable the Government to act without legislative authority, so it is important to have that legislative authority on the statute book—indeed, it is essential. Again, like the noble and learned Lord, Lord Judge, I hope it will not be necessary.

There ought not to be any conflict between the withdrawal treaty and our fundamental laws, as long as both sides negotiate, as they have promised to do, the remaining internal contradictions in the withdrawal Act in good faith and with respect for each other’s constitutional orders. I was not alone in mentioning the potential clash between the withdrawal treaty and our fundamental laws. So did my noble friend Lord True in his brilliant closing speech at the end of the Second Reading debate, when he referred notably to the need to uphold the Act of Union, which ensures unfettered trade between parts of the United Kingdom, and the Belfast agreement.

I hope noble Lords will ponder these things and, most of all, the summing up by the noble and learned Lord, Lord Judge, that it may be necessary—though let us hope it is not—for us to resolve a conflict between the withdrawal treaty and the Act of Union and Belfast agreement. It is sensible to have that legislation on the statute book. But we are not, by doing so, rendering ourselves international pariahs or doing anything that any other country would not do in similar circumstances.

[Lord Clarke of Nottingham (Con)]

My Lords, it is a rather remarkable experience, as quite a new Member of this place, to find myself taking part in such an extraordinary and unusual debate, loaded with such significance and ethical and legal issues. It was a pleasure at Second Reading to follow a debate in which the eloquence of the noble and learned Lord, Lord Judge, the noble Lord, Lord Howard, and many others was extremely persuasive. I followed their speeches, which came to a dramatic conclusion when I found I was taking part in Divisions in which the Government suffered their biggest defeat in this House for over 20 years on a resounding and distinguished cross-party basis.

My first reaction was to think that, before we got to this stage, the Government would react in some constructive, positive way. I may be new here, but I have been a few years in government, and in the past, the problem would have been regarded as a fairly extraordinary one. Efforts would have been made to give the unfortunate Minister, who had drawn the short straw of defending the Government in this House, some material and opportunity to persuade, reach a compromise and perhaps move to the more pragmatic approach of the noble Lord, Lord Lilley, because this should all be resolved in a common-sense way.

European Union (Notification of Withdrawal) Bill

Debate between Lord Lilley and Lord Clarke of Nottingham

Tuesday 31st January 2017 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Mr Speaker, you will not be surprised to hear that it is my intention to vote against the Second Reading of this Bill, if a vote is called, and to support the reasoned amendment, which I think will be moved very shortly by the Scottish nationalists.

Because of the rather measured position that the hon. and learned Member for Holborn and St Pancras (Keir Starmer) had to present on behalf of the official Labour party, it falls to me to be the first Member of this House to set out the case for why I believe—I hope that I will not be the last such speaker—that it is in the national interest for the United Kingdom to be a member of the European Union, why I believe that we have benefited from that position for the past 45 years and, most importantly, why I believe that future generations will benefit if we succeed in remaining a member of the European Union. It is a case that hardly received any national publicity during the extraordinary referendum campaign, but it goes to the heart of the historic decision that the House is being asked to make now.

It so happens that my political career entirely coincides with British involvement with the European Union. I started over 50 years ago, supporting Harold Macmillan’s application to join. I helped to get the majority cross-party vote for the European Communities Act 1972, before we joined in 1973, and it looks like my last Parliament is going to be the Parliament in which we leave, but I do not look back with any regret. We made very wise decisions. I believe that membership of the European Union was the way in which we got out of the appalling state we were in when we discovered after Suez that we had no role in the world that we were clear about once we had lost our empire, and that our economy was becoming a laughing stock because we were falling behind the countries on the continent that had been devastated in the war but appeared to have a better way of proceeding than we did.

I believe that our membership of the European Union restored to us our national self-confidence and gave us a political role in the world, as a leading member of the Union, which made us more valuable to our allies such as the United States, and made our rivals, such as the Russians, take us more seriously because of our leadership role in the European Union. It helped to reinforce our own values as well. Our economy benefited enormously and continued to benefit even more, as the market developed, from our close and successful involvement in developing trading relationships with the inhabitants of the continent.

[Mr Peter Lilley (Hitchin and Harpenden) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I am very fortunate to be called this early. I apologise to my right hon. Friend—my old friend—but 93 other Members are still waiting to be called, so if he will forgive me, I will not give way.

The Conservative Governments in which I served made very positive contributions to the development of the European Union. There were two areas in which we were the leading contender and made a big difference. The first was when the Thatcher Government led the way in the creation of the single market. The customs union—the so-called common market—had served its purpose, but regulatory barriers matter more than tariffs in the modern world. But for the Thatcher Government, the others would not have been induced to remove those barriers, and I think that the British benefited more from the single market than any other member state. It has contributed to our comparative economic success today.

We were always the leading Government after the fall of the Soviet Union in the process of enlargement to eastern Europe, taking in the former Soviet states. That was an extremely important political contribution. After the surprising collapse of the Soviet Union, eastern and central Europe could have collapsed into its traditional anarchy, nationalist rivalry and military regimes that preceded the second world war. We pressed the urgency of bringing in these new independent nations, giving them the goal of the European Union, which meant liberal democracy, free market trade and so forth. We made Europe a much more stable place.

That has been our role in the European Union, and I believe that it is a very bad move, particularly for our children and grandchildren, that we are all sitting here now saying that we are embarking on a new unknown future. I shall touch on that in a moment, because I think the position is simply baffling to every friend of the British and of the United Kingdom throughout the world. That is why I shall vote against the Bill.

Let me deal with the arguments that I should not vote in that way, that I am being undemocratic, that I am quite wrong, and that, as an elected Member of Parliament, I am under a duty to vote contrary to the views I have just given. I am told that this is because we held a referendum. First, I am in the happy situation that my opposition to referendums as an instrument of government is quite well known and has been frequently repeated throughout my political career. I have made no commitment to accept a referendum, and particularly this referendum, when such an enormous question, with hundreds of complex issues wrapped up within it, was to be decided by a simple yes/no answer on one day. That was particularly unsuitable for a plebiscite of that kind, and that point was reinforced by the nature of the debate.

Constitutionally, when the Government tried to stop the House having a vote, they did not go to the Supreme Court arguing that a referendum bound the House and that that was why we should not have a vote. The referendum had always been described as advisory in everything that the Government put out. There is no constitutional standing for referendums in this country. No sensible country has referendums—the United States and Germany do not have them in their political systems. The Government went to the Supreme Court arguing for the archaic constitutional principle of the royal prerogative—that the Executive somehow had absolute power when it came to dealing with treaties. Not surprisingly, they lost.

What about the position of Members of Parliament? There is no doubt that by an adequate but narrow majority, leave won the referendum campaign. I will not comment on the nature of the campaign. Those arguments that got publicity in the national media on both sides were, on the whole, fairly pathetic. I have agreed in conversation with my right hon. Friend the Secretary of State for Exiting the European Union that he and I can both tell ourselves that neither of us used the dafter arguments that were put forward by the people we were allied with. It was not a very serious debate on the subject. I do not recall the view that £350 million a week would be available for the health service coming from the Brexit Secretary, and I did not say that we going to have a Budget to put up income tax and all that kind of thing. It was all quite pathetic.

Let me provide an analogy—a loose one but, I think, not totally loose—explaining the position of Members of Parliament after this referendum. I have fought Lord knows how many elections over the past 50 years, and I have always advocated voting Conservative. The British public, in their wisdom, have occasionally failed to take my advice and have by a majority voted Labour. I have thus found myself here facing a Labour Government, but I do not recall an occasion when I was told that it was my democratic duty to support Labour policies and the Labour Government on the other side of the House. That proposition, if put to the hon. Member for Bolsover (Mr Skinner) in opposition or myself, would have been treated with ridicule and scorn. Apparently, I am now being told that despite voting as I did in the referendum, I am somehow an enemy of the people for ignoring my instructions and for sticking to the opinions that I expressed rather strongly, at least in my meetings, when I urged people to vote the other way.

I have no intention of changing my opinion on the ground. Indeed, I am personally convinced that the hard-core Eurosceptics in my party, with whom I have enjoyed debating this issue for decades, would not have felt bound in the slightest by the outcome of the referendum to abandon their arguments—[Interruption.] I do not say that as criticism; I am actually on good terms with the hard-line Eurosceptics because I respect their sincerity and the passionate nature of their beliefs. If I ever live to see my hon. Friend the Member for Stone (Sir William Cash) turn up here and vote in favour of Britain remaining in the European Union, I will retract what I say, but hot tongs would not make him vote for membership of the EU.

I must move on, but I am told that I should vote for my party as we are on a three-line Whip. I am a Conservative; I have been a decently loyal Conservative over the years. The last time I kicked over the traces was on the Lisbon treaty, when for some peculiar reason my party got itself on the wrong side of the argument, but we will pass over that. I would point out to those who say that I am somehow being disloyal to my party by not voting in favour of this Bill that I am merely propounding the official policy of the Conservative party for 50 years until 23 June 2016. I admire my colleagues who can suddenly become enthusiastic Brexiteers, having seen a light on the road to Damascus on the day that the vote was cast, but I am afraid that that light has been denied me.

I feel the spirit of my former colleague, Enoch Powell—I rather respected him, aside from one or two of his extreme views—who was probably the best speaker for the Eurosceptic cause I ever heard in this House of Commons. If he were here, he would probably find it amazing that his party had become Eurosceptic and rather mildly anti-immigrant, in a very strange way, in 2016. Well, I am afraid that, on that issue, I have not followed it, and I do not intend to do so.

There are very serious issues that were not addressed in the referendum: the single market and the customs union. They must be properly debated. It is absurd to say that every elector knew the difference between the customs union and the single market, and that they took a careful and studied view of the basis for our future trading relations with Europe.

The fact is that I admire the Prime Minister and her colleagues for their constant propounding of the principles of free trade. My party has not changed on that. We are believers in free trade and see it as a win-win situation. We were the leading advocate of liberal economic policies among the European powers for many years, so we are free traders. It seems to me unarguable that if we put between us and the biggest free market in the world new tariffs, new regulatory barriers, new customs procedures, certificates of origin and so on, we are bound to be weakening the economic position from what it would otherwise have been, other things being equal, in future. That is why it is important that this issue is addressed in particular.

I am told that that view is pessimistic, and that we are combining withdrawal from the single market and the customs union with a great new globalised future that offers tremendous opportunities for us. Apparently, when we follow the rabbit down the hole, we will emerge in a wonderland where, suddenly, countries throughout the world are queuing up to give us trading advantages and access to their markets that we were never able to achieve as part of the European Union. Nice men like President Trump and President Erdogan are impatient to abandon their normal protectionism and give us access. Let me not be too cynical; I hope that that is right. I do want the best outcome for the United Kingdom from this process. No doubt somewhere a hatter is holding a tea party with a dormouse in the teapot.

We need success in these trade negotiations to recoup at least some of the losses that we will incur as a result of leaving the single market. If all is lost on the main principle, that is the big principle that the House must get control of and address seriously, in proper debates and votes, from now on.

I hope that I have adequately explained that my views on this issue have not been shaken very much over the decades—they have actually strengthened somewhat. Most Members, I trust, are familiar with Burke’s address to the electors of Bristol. I have always firmly believed that every MP should vote on an issue of this importance according to their view of the best national interest. I never quote Burke, but I shall paraphrase him. He said to his constituents, “If I no longer give you the benefit of my judgment and simply follow your orders, I am not serving you; I am betraying you.” I personally shall be voting with my conscience content, and when we see what unfolds hereafter as we leave the European Union, I hope that the consciences of other Members of Parliament will remain equally content.