Rule of Law: Law Officers

Lord Thomas of Gresford Excerpts

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

I hope that the noble and learned Lord has not become unwell in view of the noises emanating from him—but, if he has, I wish him well for the future.

Let us be clear that we are in a situation where we have rights under an international treaty. Those rights include our response to any breach of obligations by the counterparty, be that a lack of good faith or such action as would fundamentally alter the obligations under the treaty, giving rise to a position—under Article 62 of the Vienna Convention—where we could withhold our operation of the treaty.

It has been suggested to me by no less a legal authority than the noble and learned Lord, Lord Falconer of Thoroton, that we can simply rely on Article 16. This has immense novelty value. The idea the Executive can enter into a treaty at the level of international law and then rely on that to displace primary legislation passed by the domestic Parliament is, I respectfully suggest, extraordinary. That requires these mechanisms in the UKIM Bill to address the contingency of a material breach that we need to address.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble and learned Lord told the Scottish Public Law Group in Edinburgh in June 2018:

“If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively—any government is simply shooting itself in the foot if it undermines the rule of law.”


The contingent powers in this Bill to change the Northern Ireland protocol unilaterally trash the dispute resolution provisions in the treaty that Boris Johnson signed, and on any sensible reading undermine the rule of law, as Brandon Lewis candidly acknowledged. Will the Minister acknowledge that for him to promote their use by introducing a statutory instrument under these provisions in this House would violate his overarching duty under the Ministerial Code to comply with the law, including international law and treaty obligations, as the Court of Appeal found and as the noble and learned Lord is reported by the Guardian correctly to have advised the Prime Minister? Does he acknowledge that it would also violate the law officer’s oath that he took as Advocate-General of Scotland, and would be a gross dereliction of his duty?

[The Lord Speaker (Lord Fowler)]

It would be helpful if questions could be kept brief, in which case we might be able to get through the list. We are not doing too well so far.