European Union (Withdrawal Agreement) Bill

Debate between Lord Wallace of Saltaire and Lord Keen of Elie

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

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

My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.

[Lord Wallace of Saltaire]

My Lords, I entirely accept that. I am merely talking about those who have written about this. I am talking, as my noble colleague on the Labour Front Bench suggested, about those who have been agitating for clauses such as this, who have been expounding—the Martin Howes of this world—and not, of course, the average voter, who has much a simpler collection of views on all this. We know that the vote came for many reasons, but for those who have written and spoken about the justification and the necessity for this, in overlapping groups, I think that the terms I used were justified. We are talking about a view of English exceptionalism, which perhaps even some Scots share—a view of English identity and our difference from the continent, which I do not share but which I was taught at university. I have learned a great deal about it and I dispute it.

[Lord Keen of Elie]

My Lords, even though the noble Lord may seek to narrow down the characterisation he advanced in his opening, I still do not accept it. It appears to me to go far too far in its assertion of who might be concerned to restate and recognise the sovereignty of our Parliament, and why. I will make two comments on his observations. He did not mention the duality principle, but he ought to bear it in mind because, of course, while the Executive may enter into obligations at the level of international law, they have no impact on domestic law unless and until they are brought into domestic law by this Parliament. So there is no question of parliamentary sovereignty being undermined in any sense by the ability of the Executive to enter into treaties, and to have and enjoy that treaty-making power. That is simply not correct.

On the noble Lord’s observations about the separation of powers and the position of the judiciary, I invite him to revisit, as am sure he has often done before, the work of Dicey on the constitution—I think the 1887 edition was the last one that Dicey himself edited—in which he makes very clear the position of the judiciary vis-à-vis the sovereignty of Parliament.

[Lord Wallace of Saltaire]

I have indeed read Dicey and I am conscious that his views on a number of issues were influenced by his growing opposition to home rule.

[Lord Keen of Elie]

It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.

I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.

The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.

[Lord Keen of Elie]

It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.

As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.

[Lord Wallace of Saltaire]

My Lords, in that case, I find the phrase “unnecessary repetition” entirely appropriate to this clause as a description of what it is for. I referred to the duality principle; I remind the noble and learned Lord that the United States also has that principle, and that the view of the exceptional position of the American constitution and its relationship with international law means that, on occasion, the Senate turns down treaties that the United States has negotiated, sometimes to the extreme discomfort of the international legal order.

[Lord Keen of Elie]

I think we are aware that it did not join the League of Nations.

[Lord Wallace of Saltaire]

Not just the League of Nations—there was also withdrawal from the joint agreement with Iran, although that was an executive act.

I was saying that our Parliament, which is sovereign, is constrained by acceptance of the legal order. On the delicate relationship between Parliament and government over the negotiation of treaties, particularly trade treaties, we need to bear that in mind, because, as a Parliament, we have never rejected a treaty that a Government have negotiated. That is one reason why many of us are still pressing for that. I wish merely to mark that these issues need to be examined in more detail, that the Government have committed themselves to some sort of commission on the constitution, the judiciary and democracy, and that as we leave the European Union, it is entirely appropriate—indeed, necessary—that we re-examine some of these questions about which, as the noble and learned Lord and I have shown in our discussions, there is some contestation.