Outcome of the European Union Referendum

Lord Morris of Aberavon Excerpts

Wednesday 6th July 2016 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, much was said in the referendum campaign about the sovereignty of Parliament. Yesterday the Lord Privy Seal said, if I may paraphrase her, that the House will play a part and that the legal position is being looked at—but only now. It was thin gruel and the statement reflected the lack of preparation for Brexit. I am astonished. I expect the Minister replying to deal specifically with the role of Parliament in invoking Article 50. There are many other aspects that Parliament will be involved in, such as repealing legislation, but it is invoking Article 50 that demands clarification. Do we need a decision of Parliament for this?

The noble Lord, Lord Pannick, in his invaluable article in the Times, for which I am grateful, came down firmly that an Act of Parliament would be required. I agree. The contrary argument is that it can be done by royal prerogative. The preponderance of at least academic legal opinion is that the royal prerogative is an inappropriate mechanism, as the subject matter of membership of the EU is already addressed by an Act of Parliament, the 1972 Act. We have a constitutional requirement that legislation can be altered only by another Act of Parliament. The noble and learned Lord, Lord Millett, who in substance dissents, concedes that it would be impossible to implement Article 50 without the consent of the House of Commons. This is good law and good politics as well.

Let me underline the political dimension, the realpolitik. The late noble and learned Lord, Lord Mayhew of Twysden, and I, as former Attorneys-General, were invited some years ago to give evidence to the legal and constitutional committee of this House about whether it was for Parliament to decide before we went to war, rather than the Government relying on the royal prerogative, as in the past. The view of both of us was that the royal prerogative—called “the people’s prerogative” by Churchill—was outdated for this purpose and that, today, the case for the House of Commons to decide, as the provider of supply, was overwhelming. The Select Committee of this House agreed. Since then, the convention has been established in the case of both Iraq and Syria. If Parliament—in this case, the House of Commons—has by convention to approve an issue of this magnitude, is not the decision to invoke Article 50 on the same scale, following what the Lord Privy Seal yesterday called “a momentous democratic exercise”? Therefore, both on legal grounds and grounds of political reality, parliamentary consent would be necessary.

There are two industries that I want to mention briefly. In the debate on the Queen’s Speech, I raised the problems faced by the steel industry. I compared the actions of the United States and Brussels in tackling the dumping of Chinese steel. I questioned whether the problem was the lack of vigour by the Government in their representations or the hidebound processes of the Brussels bureaucracy. Be that as it may, what is the position now after the regrettable result? There are real people, real pensioners in the Port Talbot area, my former constituency, who want to know whether Brexit makes the position better or worse.

The second industry I want to mention is agriculture, about which little has been said in this debate. My first job when I came out of the Army was as legal adviser to the Farmers Union of Wales. That was more than 50 years ago. Last December I spoke at a dinner in Carmarthen to celebrate its formation and longevity. All I could tell them was that, if they lost the Brussels subventions that they had become particularly dependent upon, then we should return to the principles of the agricultural system before we joined the EU: the Treasury would have to take over. I quoted the Agriculture Act 1947, piloted by that great Labour Minister of Agriculture, Tom Williams. Section 1 promised guaranteed prices and assured markets. Section 2 provided the machinery of an annual price review. The Act was rescinded as late as 1993. If the referendum were lost, my advice to the farmers was that they should lobby their political representatives to have their place in the queue for machinery to ensure proper returns for the industry.

I fear that there is, again, no plan B, but there is an urgency in providing assurance to a much wider circle than farmers: those who love and use the countryside will want to ensure that the countryside flourishes. I think that it was irresponsible of the Government not to have a contingency plan at all.

Turkey: Zaman Newspaper

Lord Morris of Aberavon Excerpts

Wednesday 9th March 2016 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords—

[Lord Morris of Aberavon (Lab)]

My Lords—

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, I am sure that two distinguished Members of this House can, between them, decide whom to give way to.

[Lord Morris of Aberavon]

My Lords, has any estimate been made, to the nearest million, of the number of Turks who might be eligible to enter the European Union—and, ultimately, the United Kingdom—without visas?

[Baroness Anelay of St Johns]

My Lords, the noble and learned Lord refers to one of the issues that was under discussion after the summit had concluded its official session on Monday. The question of whether visa restrictions will be lifted within the Schengen area is now being considered and a proposal will be brought forward at the next European Council meeting, which I believe will be on 16 or 17 March. I repeat that that is for the Schengen area only and not for here, and therefore I suggest that it is a little premature to try to estimate how many Turks will avail themselves of it.

BBC World Service

Lord Morris of Aberavon Excerpts

Wednesday 12th March 2014 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, since S4C has also been partially funded in recent years by the BBC, in the same way as the World Service is, what consideration has been given to the future funding of S4C?

[Baroness Warsi]

I will have to write to the noble and learned Lord on that one.

Syria and the Middle East

Lord Morris of Aberavon Excerpts

Monday 1st July 2013 Lords Chamber

[Lord Morris of Aberavon]

My Lords, last Thursday the noble Baroness, Lady Warsi, to whom I am grateful for opening this debate, was asked point blank by the noble Baroness, Lady Falkner of Margravine, whether—I paraphrase—given the assurances of the Prime Minister in the House of Commons, there would be a vote prior to any decision to give arms to the Syrian opposition, and what would be the arrangements in the Recess. I regret to say that the briefing of the Minister of State did not deal adequately with the situation. She said that the House of Commons would,

“have the opportunity to discuss the issue”—[Official Report, 2706/13; col. 859]—

and that she would consult on what would occur if Parliament was not sitting. Today she was much clearer. She said—if I have the words correct—that Parliament “would be engaged”, and I think she said that Parliament would have to agree.

On 19 June the Prime Minister said that we have,

“a big commitment to come to the House, explain, vote and all the rest of it, but obviously Governments have to reserve the ability to take action swiftly on this or other issues”.—[Official Report, Commons, 19/6/13; col. 909.]

Of course, in the development of what I believe is now a convention for parliamentary approval, there has to be such a reserve power for speedy action if the country is in danger. However, this is not that kind of situation. The Government must make abundantly clear their commitment to a vote of approval—I hope that they already have, but perhaps they could repeat it—and spell out what will happen in the Recess.

It used to be said that going to war did not need parliamentary approval. Technically, for a whole host of legal reasons, we have not declared war since declaring it against Siam in 1942. The most usual scenarios today are armed conflict or the commitment of troops. In the past, Governments were able to act under the royal prerogative—what Churchill deemed “the people’s prerogative”—but all that is changing. Parliamentary approval for the war in Iraq broke new ground.

If one couples that with a report of your Lordships’ Constitution Committee in 2006—to which the noble and learned Lord, Lord Mayhew, and I gave evidence as former Attorney-Generals—one sees that the convention on the need for parliamentary approval is firmly developing. I find it difficult to visualise a situation short of an extreme crisis where armed conflict would be undertaken without parliamentary approval. I would argue that the supply of arms, with the possibility of mission creep, comes very near to engaging in armed conflict, and that there is a need there, too, for parliamentary approval. Indeed, I would like to hear the argument for why it would not be covered by the growing convention.

Not for the first time, the Security Council is paralysed. There is no Security Council resolution that I know of that would permit the supply of arms. Arming the rebels could be seen as an illegal use of force contrary to Article 2(4) of the UN charter. I note that in May 2013 the European Union lifted its arms embargo, which means that the transfer of arms, subject to certain conditions, could be legal under European law. There could be at least five legal objections to supplying arms after the lifting of that embargo. Even the arms trade treaty signed in June of this year, which is yet to be ratified, requires states to abide by the UN charter.

I would counsel a close examination of the United Kingdom’s vulnerability at international law if it implemented the European Union’s lifting of the ban. Much as we are enjoined and have a duty as Ministers, politicians and the Armed Forces to obey international law, there are precedents in certain circumstances where there is an overwhelming humanitarian disaster for acting in the absence of an appropriate Security Council resolution.

In 1991 my predecessors as law officers enunciated the germination of, and indeed blessed, the doctrine of intervention in the absence of a Security Council resolution to provide for a no-fly zone to protect the Kurds and the Marsh Arabs in Iraq. As the Attorney-General, I was faced with a similar impasse in the case of Kosovo, where I had to hone and develop that doctrine and provide what I believed in those particular circumstances was a legal basis for Ministers and the Armed Forces to act. Representing the United Kingdom, I had to defend our stance for five long days in the International Court of Justice at The Hague. It is possible, whatever my views about non-humanitarian intervention at all, that it may have to be prayed in aid in the circumstances of Syria if parliamentary approval is obtained.

I shall set out briefly what I believe are the necessary requirements following Kosovo. First, there has to be convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale requiring immediate and urgent relief. I have no doubt that this is satisfied. Secondly, in all the circumstances there is no practical alternative to the use of force, if lives are to be saved. This is much more difficult; it depends on the action proposed, and judgment has to be exercised. Thirdly, the proposed use of force—in this case, the supply of arms—is necessary and proportionate to the aid proposed, which is the relief of humanitarian need, and is strictly limited in time and scope to that end; that is, it is the minimum necessary to achieve that aim. I argue that the supply of arms could be deemed to come under what might be called the rubric.

The doctrine is not without controversy. Some distinguished academics, perhaps from the comfort of their ivory towers, find the doctrine unacceptable. I respect them. They did not have to face the overwhelming humanitarian disaster that I had to face, or to advise my colleagues. Others take the same view. Having set out what I believe are the legal grounds that might justify acting, given the history of intervention in Afghanistan and Iraq, I would nevertheless counsel against any intervention until we were satisfied that there was very wide acceptance of whatever action we took and we were confident that our actions both were right and would work to bring peace to these long-suffering communities.

Wars used to last for five years; now 10 years, and more, go by very quickly. As a relatively small nation in economic terms, is it in our national interest to embark on such interventions without much broader unanimity across the world?

International Criminal Court: Rome Statute

Lord Morris of Aberavon Excerpts

Thursday 22nd March 2012 Lords Chamber

[Lord Howell of Guildford]

My noble friend has mentioned two more countries that are not signatories: Burma and North Korea. In reality, the only way that the ICC can raise charges, commence prosecutions or anything similar with regard to non-signatories is through a resolution from the UN Security Council. That would have to be the way forward, as it was, for instance, with Libya, Sudan and Darfur. So if the UN Security Council could agree, there could be a reference to the ICC in relation to Burma and North Korea. However, my noble friend knows as well as I do that the UN Security Council has differing opinions within it; and on many issues, including the sort he has raised, there are problems.

[Lord Morris of Aberavon]

My Lords, one of the driving forces for the passing of the Rome statute and the setting up of the International Criminal Court was Labour’s Foreign Secretary, the late Robin Cook, whom I had the privilege to support as Attorney-General. Regrettably, as we have been reminded this morning, the United States has failed to ratify it. Given the recent emphasis placed on the special relationship during the Prime Minister’s visit, what specific steps have been taken by Her Majesty's Government to persuade our American friends to become members of the court so that there is a venue recognised by most major states for the trying of international wrongdoers?

[Lord Howell of Guildford]

The noble and learned Lord is quite right that Robin Cook was the driving force when we took the legislation through the House—with support from both sides; I was sitting on that side at the time—for setting up this remarkable body. The court is getting going but that takes time, so many of the crimes and horrors of the past are still being tried under previous legislation and therefore in separate courts. However, the ICC is making progress. What can we do about the non-signatories, particularly our allies and friends in the United States? They know perfectly well our views. For reasons that I have mentioned—or hinted at—to do with internal pressures in the United States, they have not signed; and frankly, I think that they are not very likely to. However, in terms of co-operation and help in making the operations of the ICC work, the United States has been extremely constructive and extremely helpful.