Lord Chancellor’s Oath and the Rule of Law

Derek Twigg Excerpts

Wednesday 14th October 2020 Westminster Hall

[Derek Twigg (in the Chair)]

May I remind hon. Members that there have been some changes to the normal practice, in order to support the new call list system and ensure that social distancing requirements can be respected? Members should sanitise their microphones before they use them, using the cleaning materials provided, and respect the one-way system around the room, which goes anti-clockwise. Members can only speak if they are on the call list, and this applies even if debates are undersubscribed. Members cannot join the debate if they are not on the call list. Members are not expected to remain for the winding-up speeches.

I also remind Members that there is less of an expectation that they should remain for the next two speeches once they have spoken; this is to help manage attendance in Westminster Hall. Members may wish to stay beyond their own speech, but they should be aware that in doing so, they may prevent Members in seats in the Public Gallery from moving into the horseshoe. That obviously will not be the case today, because we are not over-subscribed.

[Joanna Cherry (Edinburgh South West) (SNP)]

I beg to move,

That this House has considered the Lord Chancellor’s oath and the rule of law.

It is a pleasure to serve under your chairmanship, Mr Twigg.

I should start by declaring an interest, as a non-practising member of the Scottish Bar, the Faculty of Advocates; as an honorary bencher of the Middle Temple; and as the lead petitioner in the case of Cherry v. Advocate General, in which connection I refer to my entry in the Register of Members’ Financial Interests.

The Lord Chancellor is required to make an oath that no other member of the Cabinet is required to make, and it reads as follows:

“I…do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law”.

When the Lord Chancellor took office in July last year, he took that oath at the royal courts of justice. Yet the past year has not been a happy one for the United Kingdom Government in respect of the rule of law.

In September last year, the Government suffered defeat in the Supreme Court of Scotland and the Supreme Court of the United Kingdom, when the Prime Minister’s Prorogation of Parliament was ruled unlawful. Rather than a contrite response, what we saw was a combative one, laced with denial. The fallout of those cases—the Miller case and my own case, and the first Miller case—has led to repeated attacks on the legal profession and the judiciary, and now to proposals to restrict the right of judicial review of Government action.

That was the start of the Lord Chancellor’s first year in office. It has been bookended this September by the resignation of the UK Government’s Scottish Law Officer. It will be recalled that the Advocate General resigned last month with a letter informing the Prime Minister that he found it increasingly difficult to reconcile his obligations as a Law Officer with the Government’s policy intentions, and he is yet to be replaced.

The Advocate General for Scotland tendered his resignation in the wake of the statement by the Secretary of State for Northern Ireland that the United Kingdom Internal Market Bill would

“break international law in a very specific and limited way.”—[Official Report, 8 September 2020; Vol. 679, c. 509.]

Of course, that admission was elicited from him by the hon. Member for Bromley and Chislehurst (Sir Robert Neill).

In addition to the UK Internal Market Bill, we currently have two further Bills before Parliament that are unprecedented in legal terms. Both the Overseas Operations (Service Personnel And Veterans) Bill and the Covert Human Intelligence Sources (Criminal Conduct) Bill seek to create special classes of defendants in domestic law in respect of whom the criminal law will not apply as it does to you, Mr Twigg, or me.

We also have reviews pending in administrative law and human rights that would appear to threaten the scope for British citizens to challenge unlawful actions of this Government in court. Of course, part 5 of the Internal Market Bill already seeks to do that in respect of certain aspects of the Northern Ireland protocol.

There are concerns that the Internal Market Bill will undermine the Good Friday agreement. It certainly runs a coach and horses through the devolution settlement and makes a nonsense of promises made to Scottish voters during the 2014 independence referendum.

Last week, I spoke at a webinar organised to discuss the implications of the Internal Market Bill for the rule of law. It was organised by the International Bar Association’s Human Rights Institute. The webinar was attended by more than 1,000 lawyers from across these islands, and a further 1,000 in the waiting room were unable to get in. Among the speakers who expressed concern about the implications of the Bill for the rule of law were not just lefty lawyers like me, but Baron Howard—Michael Howard QC—a former leader of the Conservative and Unionist party and of Her Majesty’s Opposition, who I do not think by any stretch of the imagination could be described as a lefty lawyer.

Therefore, the concerns that I am articulating today are felt across the political spectrum. It was very noteworthy that during the seminar, Lord Neuberger, a former President of the Supreme Court, expressed very grave concerns about the implications of the Internal Market Bill for the rule of law. Such concerns, when expressed by a former President of the United Kingdom Supreme Court in such trenchant terms as have been widely reported, are of some significance. They reflect the huge and widespread concern across these islands, expressed by the Law Societies and the Bars of Scotland and England and Wales, about the Bill, but also about rhetoric employed by the Home Secretary and the Prime Minister in respect of the legal profession.

At the beginning of September, the Home Secretary claimed that “activist lawyers” were frustrating the removal of migrants from this country. Days later, an immigration solicitor was the subject of a violent racist attack at a London law firm, and the Law Society of England and Wales wrote to the Home Secretary, warning her that inflammatory rhetoric has consequences. Nevertheless, the Home Secretary has doubled down on her rhetoric, and she has been joined in it by the Prime Minister.

At the Conservative party conference, the Home Secretary criticised people who make

“endless legal claims to remain”

in respect of asylum cases, and in the same speech she referenced those who

“lecture us on their grand theories about human rights”,

as well as referencing do-gooders and lefty lawyers. The Prime Minister, in his conference speech the next day, reiterated the sentiment, saying that the Government were

“changing the law…and stopping the whole criminal justice system from being hamstrung by what the Home Secretary would doubtless and rightly”

says the Prime Minister

“call the lefty human rights lawyers and other do-gooders.”

The leader of the Scottish Bar, the dean of the Faculty of Advocates, was so concerned about the comments that he has written what I would call an unprecedented letter to the Prime Minister in which he has expressed grave concerns on behalf of the whole Scottish Bar. I would like to read it out, because it is a short but powerful letter. It starts as follows:

“Dear Prime Minister

As I hope you know, the Faculty of Advocates represents the Scottish Bar. All Advocates qualified to practise before the Scottish Courts are Members of Faculty. All are bound by the cab rank rule.”

He explains that the cab rank rule means that advocates must be available for instruction by all and cannot pick and choose their clients. He goes on to say:

“Against that backdrop, I require to intimate, as Dean of Faculty and on behalf of all Members of Faculty, that I deprecate the recent pronouncements—from the Home Office, then from the Home Secretary, and latterly from the Prime Minister himself—to the effect that there is a problem with ‘lefty lawyers’ or ‘activist lawyers’ who are ‘hamstringing’ the justice system. Whether the topic is immigration, or crime, or the constitution, lawyers that act against the State are not being ‘lefty’, nor ‘activist’: they are doing their professional duty. It is simply unconscionable for Her Majesty’s Government to decry in this way the actions of professionals who, as the comments of Lord President Inglis”

in the famous case of Batchelor v. Pattison and Mackersy

“make clear, are not at liberty”

to pick and choose their clients. The dean of faculty goes on to say:

“In this country”—

by which I presume he means Scotland, but I think he would also apply it to the whole of the United Kingdom—

“(and the same cannot be said of all countries), instances of violence against lawyers are, fortunately, rare. However, in a climate of increasing populism, this sort of rhetoric is not only facile and offensive: it is potentially harmful. With great power comes great responsibility, and I have to say”

says the dean of faculty

“—with great respect—that I simply cannot fathom why it is thought in any way appropriate to attempt to vilify, in public, those that are simply doing their job, in accordance with the rule of law. I would accordingly, and again with great respect, ask each of you to eschew such unhelpful language, and to recognise that challenges to the executive are a necessary part of our democracy. Anything less would be a confession that we no longer live in a democracy.”

That letter was signed by Roddy Dunlop QC, dean of the Faculty of Advocates. As he is an old friend of mine, I can assure Members that he is not, unlike me, a lefty lawyer. He is simply somebody who cares about the rule of law.

As I look around, I realise there are many lawyers attending this debate. I do not need to take up too much time by defining what the rule of law is. The great English jurist, Lord Bingham, set it out finely in his eight principles of the rule of law. It is worth reminding ourselves, in relation to the Internal Market Bill, that the eighth of Lord Bingham’s principles is that the state must comply with its obligations in international law, as in national law.

The responsibilities of the Lord Chancellor for the rule of law were set out very well in our December 2014 report from the House of Lords Constitution Committee:

“The rule of law is a fundamental tenet of the United Kingdom constitution. In the context of the Government, it means more than simple compliance with the letter of the law: it means governing in accordance with constitutional principles. The Lord Chancellor has traditionally had a key role to play, both by defending the independence of the judiciary and by ensuring that the rule of law is respected within Government. The Constitutional Reform Act 2005 substantially changed the office of Lord Chancellor.”

He

“is no longer the head of the judiciary or speaker of the House of Lords, and since 2007 the office has been combined with that of the Secretary of State for Justice. Yet the duty of the Lord Chancellor in relation to the rule of law remains unchanged. This duty extends beyond the work of the Ministry of Justice and requires the Lord Chancellor to ensure that the rule of law is upheld within Cabinet and across Government.”

The Committee also emphasised that the Lord Chancellor has traditionally performed an important oversight role in relation to the United Kingdom constitution as a whole. I would argue that that is highly relevant to the implications for Northern Ireland and for Scotland’s place in the Union, which arise from the Internal Market Bill.

The Committee heard evidence from Lord Falconer, who was very much involved in reforms that took place under the previous Labour Government. His evidence stated that the Lord Chancellor had a “special role” to protect the rule of law, and that to think otherwise was

“to undermine what the Constitutional Reform Act had sought to do.”

In summary, the Lord Chancellor’s duty to respect the rule of law extends beyond the policy remit of his or her Department and requires him or her to seek to ensure that the rule of law is upheld within the Cabinet and across the Government. My purpose in holding this debate today is to draw attention to the very real threats to the rule of law currently posed by the actions of this Government and to ask the Lord Chancellor, having regard to his oath, what he intends to do about them.

There has been trenchant criticism from various quarters, fully rehearsed in debates in this House, about the legal implications of part 5 of the Internal Market Bill. For example, the Bar Council and the Law Society of England and Wales have said that the clauses contained in part 5 of the Bill,

“enable ministers to derogate from the United Kingdom’s obligations under international law in broad and comprehensive terms and prohibit public bodies from compliance with such obligations. They represent a direct challenge to the rule of law, which include the country’s obligations under public international law”.

As we have heard, that is why the Advocate General for Scotland tendered his resignation.

The Attorney General for England and Wales has attempted to justify her support for the Internal Market Bill by reference to the legal doctrine of the supremacy of Parliament and the judgment of the UK Supreme Court in the first case brought by Gina Miller on the circumstances surrounding the triggering of article 50. In that case, the Supreme Court held that, to be binding in domestic law, treaty obligations require to be enshrined in an Act of Parliament, but it also held that treaties between sovereign states, such as the withdrawal agreement, have effect in international law and are not governed by the domestic law of any state. It was clear that such treaties are binding on the UK under international law. I believe that the Attorney General has selectively quoted the case in order to justify her view of the Internal Market Bill. I want to know whether the Lord Chancellor agrees with me that a proper reading of the case makes a clear distinction between the domestic law and the doctrine of supremacy of Parliament, and the United Kingdom’s international legal obligations.

What I am talking about was made very clear when Professor Catherine Barnard, who is the professor of European Union law at the University of Cambridge, gave evidence recently to the Committee on the Future Relationship with the European Union. She was crystal clear that while the United Kingdom Parliament may be sovereign under domestic law that does not impact on the rules of international law, and articles 26 and 27 of the Vienna convention mean that in international law international legal obligations take precedence. Professor Barnard also explained that there is a strong argument that the very existence of the Bill itself puts the United Kingdom in breach of its duty of good faith under article 5 of the withdrawal agreement.

I emphasise that because I have no doubt that it will be argued later today that the Government amendments prompted by the action of the hon. Member for Bromley and Chislehurst cure any problems that part 5 of the Internal Market Bill poses for our international legal obligations. I shall argue that that is wrong for a number of reasons, one of which is the argument outlined by Professor Barnard that the very existence of the Bill, evincing an intention unilaterally to breach an agreement freely entered into less than a year ago, is in itself a breach of the withdrawal agreement and our duty of good faith under it.

I know that many cheerleaders for the Bill in Parliament have been keen to emphasise section 38 of the European Union (Withdrawal Agreement) Act 2020, which restated the principle of the sovereignty of the Westminster Parliament. Of course that doctrine is a doctrine of the domestic law of England. It does not reflect the Scottish constitutional tradition, but that is perhaps an argument for another day. However, it is worth mentioning, because this Parliament is a Union Parliament, created by a treaty between two sovereign nations, Scotland and England. The United Kingdom is not a unitary state. It is a state of two countries that came together to form a Union. That fact is of relevance when we come to look at the impact of what is now clause 47 of the Internal Market Bill on the supervisory jurisdiction of the Court of Session in Scotland. It is also a point that may be of some relevance should the Scottish Government carry out their threat to litigate over the terms of the Internal Market Bill.

The hon. Member for Stone (Sir William Cash) with whom I have in common a great respect for Lord Bingham—although otherwise, in relation to many matters of law, we rather part ways—has been peddling a line in Parliament that there is a history, albeit a limited one, of Acts of Parliament that have broken international law. I was pleased to hear Lord Sumption say trenchantly in a recent interview on “World at One” that that argument is “absurd” because it ignores the fact that sovereign states such as the United Kingdom can limit their freedom of action by treaty and frequently do, just as the Prime Minister did last year when he signed the withdrawal agreement. Lord Sumption stressed that there is no right to pull out of a treaty unless the treaty itself enables a party to do so. A party to a treaty cannot disregard parts of it at will. That is a matter of international law.



There is also a potential problem, and I would like the Lord Chancellor and his representative here today to address the problem of the ministerial code. Again, I will not say what I think about the ministerial code; I will say what the former deputy Prime Minister, Sir David Lidington, said in a letter to The Times last month. He said:

“Sir, My old friend Sir Bernard Jenkin is mistaken in believing that revisions to the ministerial code in 2015 removed the duty to comply with the UK’s international legal obligations. My clear understanding as a serving minister at that time was that international law continued to be covered by the general duty placed on ministers to uphold the law.

In 2018 a campaign group sued the May government…alleging that the 2015 change meant that we had abandoned our international legal responsibilities. The Court of Appeal found their case to be ‘unsustainable’ and ruled that a minister’s ‘overarching’ duty to comply with the law included international law and treaty obligations even though those were no longer explicitly stated in the code.”

The Lord Chancellor’s Minister will know that Sir David was referring to the Gulf case. What I want to know is: does the Lord Chancellor’s Department accept that Sir David Lidington was correctly stating the law? If so, what does the Lord Chancellor make of his duties under the ministerial code in relation to a Bill of this Parliament, the very existence of which is, according to Professor Catherine Barnard, a breach of international law?

The Lord Chancellor has endeavoured in the public domain to justify the fact that he has not, unlike the Advocate General for Scotland, resigned as a result of the Bill. He told Sky News last month that he would resign if the Government broke international law “in a way that cannot be…fudged”.

Can the Minister explain to us whether the Lord Chancellor’s position is that the UK Government are already breaking international law, but he is happy with that because they are doing it in a way that can be fudged? He also said that he will resign only if the Government break the law in a way that is “unacceptable”. What is an acceptable way of breaking the law? I am sure the thousands of ordinary members of the public who have been fined for breaking lockdown regulations, while Mr Cummings did so with impunity, would like to know from the Lord Chancellor’s Department how he distinguishes between acceptable and unacceptable breaches of the law.

The Lord Chancellor has also tried to argue that the amendments drafted by the Government and prompted by the hon. Member for Bromley and Chislehurst mean that the powers now contained in part 5 of the Bill will be used only if the European Union is in material breach of its obligations. He has described it as a

“‘break glass in case of emergency’ provision”.—[Official Report, 22 September 2020; Vol. 680, c. 783.]

I would argue that there are a number of problems with that argument. First, there is the evidence of Professor Catherine Barnard, who told us at the Committee on the Future Relationship with the European Union that there is a strong argument that the very existence of the Bill is already a breaking of the obligation of good faith in the withdrawal agreement. Some of the other arguments have been made well in a speech by our former Prime Minister, the right hon. Member for Maidenhead (Mrs May), in the Commons just a few days ago. She said:

“I recognise that my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) has taken every effort to ameliorate the impact of these clauses,”—

she was referring to part 5—

“and the Government have accepted and put down their own amendment. But, frankly, my view is that to the outside world, it makes no difference whether a decision to break international law is taken by a Minister or by this Parliament; it is still a decision to break international law.”—[Official Report, 21 September 2020; Vol. 680, c. 667.]

We have seen very much from comments not just from the Irish Foreign Minister, who described the amendments as “smoke and mirrors”, but also from senior Democrat and Republican politicians in the United States of America, that what really matters is the international perception of the Bill. I think the former Prime Minister was trying to persuade her colleagues in Government that the amendments do not make any difference to the international perception of what the Bill seeks to do.

The former Prime Minister also reminded us that an arbitration process is set down in the withdrawal agreement. She said:

“There is an arbitration process available. Under article 175, the ruling of the arbitration panel should be binding on the UK and the EU. The Government have acknowledged the existence of the arbitration procedure, but they are saying that they would enter into that in parallel with the operation of the elements of this Bill. The message, it seems to me, is very clear, which is, if we do not like the outcome of the arbitration panel, then we will break international law and we will not accept it. Yet, again, that is breaking the international treaty—an agreement that UK Government signed—because it is breaking article 175, which says that the view of the arbitration panel shall be ‘binding’ on both parties.”—[Official Report, 21 September 2020; Vol. 680, c. 666.]

Those are the words of the former Prime Minister of the United Kingdom, the right hon. Member for Maidenhead—not mine. In the light of this very distinguished criticism, I wonder how the Lord Chancellor can reconcile his support for the Bill with his oath of office.

Finally, I want to turn to look at the implications of the UK Internal Market Bill for the Union between Scotland and England and for the position of Northern Ireland. In addressing the implications of the Bill for Northern Ireland, I make no apologies for quoting again what the former Prime Minister said in her speech about the Bill in the Chamber. She said:

“I believe that the Government’s willingness unilaterally to abandon an international agreement or parts of an international agreement they have signed and their willingness to renege on an agreement they have signed will lead, as has already been made clear in an intervention, to some questioning the willingness of the Government to fully uphold the measures in the Belfast/Good Friday agreement. That, in turn, will lead to some communities having less willingness to trust the United Kingdom Government, and that could have a consequence on the willingness of people in Northern Ireland to remain part of the United Kingdom. So far from acting to reinforce the integrity of the United Kingdom in pursuit of trying to appear to be tough to the European Union, I think the Government are putting the integrity of the United Kingdom at risk.” —[Official Report, 21 September 2020; Vol. 680, c. 666-667.]

Those are the words of a former British Conservative and Unionist Prime Minister, describing the implications of the Bill for the Good Friday agreement.

There are also very concerning implications for undertakings made in respect of human rights protections in the north of Ireland from the British Government, both in the Good Friday agreement and in the withdrawal agreement. Once again, that is not just my view; it is the view of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, who have advised that the Bill undermines

“the Belfast (Good Friday) Agreement commitment to ensure incorporation of the ECHR, including access to the courts and remedies for breach of the ECHR rights. The Commissions are further concerned that the proposed amendments risk diminishing the commitment in Article 2(1) of the Ireland/Northern Ireland Protocol to ensure there is no diminution of rights, safeguards or equality of opportunity as the UK leaves the EU.”

It has been made clear in the Chamber by hon. Members representing the Social Democratic and Labour party and the Alliance party in the north of Ireland that concerns about human rights implications of the Bill go right to the heart of the Good Friday agreement. Indeed, litigation is already contemplated by a group of concerned Northern Ireland citizens, who have instructed solicitors and counsel.

I turn to the position of Scotland, which is of course a particular concern to me as the Member of Parliament for Edinburgh South West and the Scottish National party’s justice and home affairs spokesperson. As well as breaking international law, the powers that the UK Government seek to give themselves in the Internal Market Bill constitute an unprecedented threat to the powers of Scotland’s Parliament and the devolution settlement. Why is that relevant to the Lord Chancellor’s oath to uphold the rule of law? It is relevant because—as we saw from the House of Lords Constitution Committee report—the Lord Chancellor also has an important role in protecting the constitution of the United Kingdom. The constitution of the United Kingdom includes the devolved settlement.

Last weekend in Scotland we marked the 20th anniversary of the death of the distinguished Labour party politician Donald Dewar, who was Scotland’s first ever First Minister under devolution. He was also the architect of the scheme of devolution set out in the Scotland Act 1998 whereby every power not specifically reserved to this Parliament is devolved to the Scottish Parliament. The Bill introduces—for the first time—a new principle into the devolution settlement by providing broad cross-cutting powers to allow Ministers to enforce internal market provisions across devolved fields. That is not my analysis, I am reading from the analysis of Professor Michael Keating of the Centre on Constitutional Change.

Clause 50 reserves state aid to Westminster, after a dispute in which the Welsh and Scottish Governments argued that it had been devolved. Clause 48 gives UK Ministers wide powers to spend in devolved fields, which changes the previous assumption that they would spend only in reserved fields and that—with a few exceptions—financial transfers to the devolved administrations would go through the block allocation governed by the Barnett formula. That succinct analysis by Professor Michael Keating is the explanation of why the Bill undermines the devolved settlement. Holyrood is not getting any new powers that it did not already have, but Westminster is getting back sole control over state aid, and—in order to enforce the internal market—UK Ministers are getting an explicit power to cut across decision-making by the Scottish Parliament in a whole range of devolved fields.

It seems that what we are seeing, by virtue of those provisions in the Bill, is a rebalancing of the constitutional settlement as far as devolution is concerned, and a tearing up of the clear delineation between reserved powers and devolved powers that was devised by the late Donald Dewar, and set out in the Scotland Act 1998. That is important not just because it undermines the devolved settlement, but it is also important from a wider constitutional perspective, because in 2014—when people living in Scotland were asked whether they wanted to remain part of the United Kingdom or return to our previous status as an independent sovereign nation—various promises were made by those urging us to remain part of the United Kingdom. One promise in particular was that if we did so our Parliament would get more powers, we would be strengthened, and we would become—to quote another Labour politician—

“the most powerful devolved parliament in the world”.

These were not promises made just by Labour politicians, they were promises made Conservative and Unionist politicians who, of course, are now the party of Government in the United Kingdom. A further Scotland Act was passed in 2016 that puts the Sewel convention on a statutory basis, and entrenched the Scottish Parliament against abolition. In terms of section 63A of the Scotland Act it cannot be abolished without a referendum in Scotland. The Internal Market Bill circumvents these protections not by abolishing the Scottish Parliament, but by removing the power it previously had to act unilaterally across a whole range of competencies that impact on the day-to-day lives of people living in Scotland. It is a very significant change, and some would say a complete and absolute undermining of the devolved settlement voted for by 75% of the people in the 1997 referendum. Thanks to the decision in the United Kingdom Supreme Court in the first Miller case, we now know that the Sewel convention was not justiciable despite being put on a statutory footing.

We also know, because of the Government’s subsequent actions, that the Sewel convention cannot protect the devolved settlement. The Sewel convention says:

“Westminster would not normally legislate with regard to devolved matters…without the consent of the Scottish Parliament.”—[Official Report, House of Lords, 21 July 1998; Vol. 592, c. 791.]

Recently, however, that has been honoured more in the breach than in the observance. Last week, the Scottish Parliament withheld legislative consent to the United Kingdom Internal Market Bill, but nobody seriously thinks that the Bill will not proceed because of that.

Indeed, the Institute for Government recently said that the

“Sewel Convention has been broken by Brexit”,

but I would argue that the Bill breaks the devolution settlement. That is important because, as I said, the constitutional relationship—the constitution of the United Kingdom—is the responsibility of the Lord Chancellor. The constitutional relationship between Scotland and England is about not just devolution but the Act of Union, which continues because of promises made in 2014 that are broken by the Bill.

I suggest that many people in Scotland have suspected for a long time that the British Government’s word is no longer their bond, and that perception is reinforced by the Bill. The problem for the Lord Chancellor is that that perception is reinforced not just in Scotland, but across the world. In Europe, and as far as the United States of America, there are concerns about the implications of the Bill for the rule of law.

I have written to the Lord Chancellor about the Scottish aspects of the Bill and have not yet received a reply. He is a busy man, but I am keen to know his position. I, like many lawyers in Scotland, not all of whom, like myself, want to see an independent Scotland, but all of whom care about the independence of the Scottish legal system, are concerned about the provisions in part 5 of the Bill and their implications for the supervisory jurisdiction of the Court of Session and for judicial review. In Scotland, judicial review is part of our system of civil justice, which is a devolved matter under the Scotland Act 1998 and therefore the preserve of the Scottish Parliament.

More importantly, in the constitutional and pre-devolution context, the authority and privileges of the Court of Session, including its inherent supervisory jurisdiction, are protected by article 19 of the treaty of Union between Scotland and England, which states:

“That the Court of Session, or College of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the laws of that kingdom, and with the same authority and privileges as before the Union, subject nevertheless to such regulations for the better administration of justice, as shall be made by the Parliament of Great Britain”.

It is a widely held view that legislation that sought to narrow the scope of the Scottish Court’s powers of judicial review and to curtail the right of judicial review could scarcely be described as for the better administration of justice. Accordingly, should the United Kingdom Government seek to circumscribe the supervisory jurisdiction of the Court of Session, they would be interfering with not only the devolved powers of the Scottish Parliament, but the treaty of Union.

I respectfully remind the Lord Chancellor, as I did in my letter to him, that there is a large and respectable body of legal opinion to the effect that some parts of the treaty of Union between Scotland and England, including article 19, are so fundamental that the United Kingdom Parliament does not have the power to legislate in contravention of them. That argument has been discussed in a number of cases, but never definitively ruled on. If the intention is to restrict the right to judicial review in Scotland, I would venture to suggest that that might be the opportunity to get a court to definitively answer the question about the entrenchment of fundamental parts of the treaty of Union. Of course, the outcome of such a litigation could have knock-on effects for the Union itself.

To summarise, we need to see the United Kingdom Internal Market Bill in relation to Scotland through the prism not only of devolution, which is a modern development, but of the treaty of Union between Scotland and England. Without a Scottish Law Officer in place, this is an area in which the Lord Chancellor would be well advised, I respectfully submit, to take more of an interest.

I do not want to take up any more time; I know that other hon. Members want to speak. I finish by saying that there is a pattern of the United Kingdom finding ways to worm its way around laws and agreements freely entered into. Because of his oath to respect the rule of law, the Lord Chancellor is in a different class of Minister. What is he going to do about that pattern? What is he going to do to honour his oath? On taking office, he spoke of his illustrious predecessors as Lord Chancellor of England and drew a comic veil over some of the less illustrious ones. I guess my question for the Lord Chancellor today is: does he want to be remembered as a Thomas More or a Richard Rich?

[Derek Twigg (in the Chair)]

I will call the hon. Members for Bromley and Chislehurst (Sir Robert Neill), for Aylesbury (Rob Butler) and for South Cambridgeshire (Anthony Browne), in that order. I would like to call the Opposition spokesperson, and then the Minister, at around 10.40 am, and to give the hon. and learned Member for Edinburgh South West (Joanna Cherry) a minute or two to respond at the end.

--- Later in debate ---

[Sir Robert Neill]

Lord Faulks is a fellow bencher of the Middle Temple and a distinguished lawyer. That does not mean that one always has to agree with everything that he says. It would not be fair or reasonable to judge somebody by past comments until we have seen the results of the panel as a whole. Lord Faulks is the chair of the panel, but there are other very distinguished people on it as well. I respect what the hon. and learned Lady says, but this is a classic case of not prejudging the issue until we have seen the outcome of the deliberations.

I am a great believer in judicial review, in appropriate cases. Has it sometimes been abused? Many people would say that perhaps that can be the case. When I was the junior Minister at the Department for Communities and Local Government, I was critical of the attitude adopted to some decisions by the then Secretary of State, the noble Lord Pickles, is he is now, in relation to the removal of regional spatial strategies. We were judicially reviewed by large commercial housebuilders, undoubtedly in pursuit of their own vested commercial interests. They sought to prevent our removing the comparatively easy route, so they could impose large housing developments on communities that did not want them. I was critical of those house builders for doing that and for undermining in law the wishes of local residents. The courts found that they were entitled to do it, but that does not mean that we were assaulting judicial review as a concept, simply by criticising the motive behind some of the people who bring it.

There is an important distinction, which I recognise. We criticised the clients—the people who brought the judicial review—but I did not criticise the lawyers who were instructed on their behalf. I would not seek to do so. It is important to say that we should not, whatever our views in politics, use political arguments to attack lawyers generally or by taking broadbrush approaches. The attacks upon the judges, which were not perhaps called out as much as they should have been at the time of the early Miller litigation, were wholly disgraceful and unacceptable. The current Lord Chancellor has made it clear that he would not countenance such attacks and such language without speaking out. That is very much to his credit and entirely consistent with his own personal integrity. I do not care for the use of language such as “lefty lawyers” or the broadbrush approach of saying that systems are being hijacked. That is not language that I would use. However, I am a Member of Parliament; I am not a speech writer.

I gently observe that the hon. and learned Member for Edinburgh South West referred to the taxi rank principle at the Bar. That is something that I have always worked under as well. To be fair, there have always been sets of chambers that would not prosecute, or would not act for landlords, for example. Some might ask whether that is in theory inconsistent with the taxi rank rule. It probably is, yet it is not something that warrants a great deal of personal attack. I just make the observation that those matters cannot be seen in a purely academic sense. I would not make too much of that, but that is where I stand as far as that is concerned. It is pretty clear where the Lord Chancellor stands, and where I suspect my hon. Friend the Minister stands as well, as far as those matters are concerned.

The other issue raised is part 5 of the United Kingdom Internal Market Bill, about which I was not a little critical when it was first introduced. I believe we have sought to improve that Bill. Is it perfect? As yet, that I do not know. Would the use of the powers in part 5 be wise politics? That is a very big question mark. However, that is not the same as, say, that it is per se constitutionally improper to put those clauses in the Bill, provided there are appropriate safeguards. The hon. and learned Member for Edinburgh South West might disagree upon that, but I think it is a legitimate area of legal dispute and the Lord Chancellor is entitled to have a different view from her and, indeed, perhaps from me in that regard, without it being suggested that he has failed to uphold his oath of office or his constitutional obligations.

I note the views, which have been referred to, of Professor Catherine Barnard. She is a distinguished academic and her views are worthy of respect. By their nature, however, she not being a judge or legislator, and valuable and worthy of respect though they are, they cannot be determinative of the point. It is one side of an argument that can properly be hooked. If, on those matters, there were no scope for difference of opinion, no scope for difference of legal interpretation, no scope for legal argument, there would scarcely be any scope for litigation and scarcely any scope for lawyers at the end of the day. It is perfectly possible for respectable lawyers to hold different opinions around matters of this kind, particularly in emerging areas of law or new legislation as it comes forward, without it being appropriate for us to say that either side is seeking to undermine constitutional principles or their professional or governmental responsibilities. That is the proper way to look at the position, as far as that is concerned here.

I am glad to say, in response to some of the endeavours, which I may have had a small hand in, the Government have made it clear that, effectively, they will only be using those powers should they ever be needed. I hope to heavens that they are never needed because we will get a deal, but should that be the case, there will be certain triggers that would have to be met, both in procedural terms but also in terms of substance. In particular, we would only do so had the European Union, in our judgment, demonstrated bad faith. Bad faith is recognised in international treaty law and in the Vienna convention as being a ground under which it is possible to derogate from an otherwise binding commitment.

The fact that we will be using this as a shield rather than a sword is important—it is the doctrine of equitable estoppel, in some respects. The Minister may well have more to say about that, but that is an important shift and one that I welcome. Therefore, the suggestion that the mere putting of those clauses on the face of the legislation is itself a breach of law is not one that is universally accepted, and I do not think therefore that it can be regarded as an act of impropriety on the part of the Government or of any Minister. As I say, there is a proper political debate as to the wisdom of using them, if we ever come to that, but that is not for today.

I want to say one final thing in relation to this. Lord Bingham was very clear that the rule of law itself is something that can evolve and must be flexible, but there are certain fundamentals. I do not think anyone would suggest that anything we are doing here alters the basic fundamentals. I am conscious of his eighth principle, but I do not think we are at that stage, and I hope we will not be. Moreover, he accepted that parliamentary sovereignty was a fundamental part of the rule of law too. There is always a set of checks and balances in that regard.

I have no problem with certain circumstances where the actions of Ministers properly should be reviewed by the courts, but I do not think this is really going to change that. Lord Bingham made it quite clear, though, that he did not accept the view advanced by, for example, Lord Steyn or Baroness Hale of Richmond that there are some concepts so fundamental that even Parliament cannot legislate to change them. He did not take that view. Again, there is a perfectly respectable dispute there and disagreement between highly distinguished former jurists, which makes the point that none of the arguments powerfully advanced by the hon. and learned Member for Edinburgh South West are determinative of any failing by either the Lord Chancellor or any other Minister in respect of their constitutional obligations.

This is a worthwhile debate to have. In a sense, an hour and a half is not enough to do it justice, because as we go forward, we are going to have to think about our constitutional and legal settlements in a broader sense, how we will operate the separation of powers in a post-Brexit world and how, continuing, as I hope, as a unified state with devolution within it, we can perhaps refine the arrangements that are required to make that work in practice too. Those are all proper matters for further consideration, but do not, I think, impinge upon any proper allegation of any failure by the current Lord Chancellor or his Ministers to act in accordance with their constitutional duties.

[Derek Twigg (in the Chair)]

Before I call Rob Butler, I remind him that I intend to take the Front-Bench speakers around 10.40 am, so if he could keep his speech to around six minutes, so that the Member for South Cambridgeshire (Anthony Browne) can get in, I would be very grateful.

--- Later in debate ---

[Anthony Browne (South Cambridgeshire) (Con)]

I congratulate the hon. and learned Member for Edinburgh South West (Joanna Cherry) on securing this important debate.

I should say at the outset that, like my hon. Friend the Member for Aylesbury (Rob Butler), I am not a lawyer, but as a journalist I have written a lot about international law, the making and breaking of international treaties, and EU law in particular, as Europe correspondent for The Times. I have also instructed a lot of lawyers. I spent perhaps tens of millions of pounds instructing lawyers on international legal disputes—some with foreign Governments—and I am proud to say that I have won every single case in which I have been involved. Dealing with all that is a painful experience, and I have quite a lot of experience.

I will make just two points because my comments have to be brief. I will start with the United Kingdom Internal Market Bill, which prompted the debate, but I will not address all the points that the hon. and learned Lady made, as my hon. Friend the Member for Aylesbury answered some of them. Secondly, I will address the impact that the Bill has on the UK’s standing, which we have not talked about much today, even though that was very much part of the political debate.

On the question whether clause 5 of the Bill breaks international law, I draw the attention of hon. Members to article 6(2) of the Northern Ireland protocol of the withdrawal agreement, which states:

“Having regard to Northern Ireland’s integral place in the United Kingdom’s internal market, the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom”.

The lawyers present will know that “best endeavours” is a legal term and a much stronger requirement than just doing one’s best to agree.

The Government included clause 5 as an explicit response to the threat from the EU’s negotiator, Michel Barnier, that the EU would not actually recognise the UK as a third country for agricultural produce, which would effectively have made it illegal for the UK to sell goods into the single market area, particularly Northern Ireland. That would have meant a ban on trade in agricultural produce from England and Scotland to Northern Ireland, which was unconscionable.

If the Government had immediately used the powers granted by clause 5, that would have been a breach of international law, but that is not what they did. There are three triggers for using those powers: first, if no deal is reached, which we do not yet know, although I certainly hope, as does the whole House, that one is reached; secondly, if there is no agreement of the Joint Committee on the border controls in Northern Ireland; and thirdly, after a vote in Parliament, if the EU breaches best endeavours and carries out its threat not to recognise the UK as a third country for agricultural produce.

If the EU did carry out that threat, I think it would be in breach of its treaty obligations, which would release the UK from its obligations, as my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) mentioned. If we ever used those powers in those circumstances, in no way would they be a breach of international law. I am grateful that the Government recognised the importance of a parliamentary vote to ensure that that does not happen. I really do not think that the Bill is a breach of international law.

My second point is about the impact on the UK’s standing, which is what a lot of the political debate and concern have been about. I have written a lot about international law, and the UK has been one of the bastions of law abiding in the international community for centuries—certainly for decades—and is very well regarded by other countries.

One issue that I wrote about was the Maastricht treaty in 1992, which Sweden signed before holding a referendum on joining the euro. Sweden was committed by international treaty to joining the euro, but unfortunately, the people of Sweden said no in the referendum. Sweden said, “No, we are not going to join the euro,” and it is in permanent breach of its international treaty obligations, but that does not make Sweden a pariah state. One has to be grown up about these obligations.

I really do not think the Internal Market Bill breaches international law. I have taken advice from lots of legal friends about it, and they have reached the same conclusion. Even if it did break international law, it would not affect the UK’s international standing.

[Derek Twigg (in the Chair)]

Thank you for your brevity.

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[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It is a pleasure to serve under your chairmanship, Mr Twigg, and to respond to a debate back here in Westminster Hall. I congratulate the hon. and learned Member for Edinburgh South West (Joanna Cherry) on securing the debate and thank her for her wide-ranging but tightly-argued important representations. I have 12 minutes to respond to her points, which were made quite properly at greater length, and I hope she will forgive me if I am unable to touch on every point she raised.

As its title indicates, this debate focuses on the Lord Chancellor’s oath and the rule of law. It is important to note a point that will not be lost on the people in this Chamber, but which bears emphasis: the role of the Lord Chancellor is different from that of the Law Officers who provide legal advice to the Government and assist them to find lawful and proper ways to achieve policy objectives. The Lord Chancellor does not provide legal advice to the Government of the day. His duties, while very important in their own right, are different.

The Lord Chancellor’s oath, as we have heard, was set out in the Constitutional Reform Act 2005, which preserved the principle of the “rule of law”, and as the hon. and learned Lady has already stated, it continues:

“I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

As is immediately apparently, the Act does not define specifically the constitutional duty in respect of the rule of law. To say there are arguments might be overstating it, but there are certainly differences of emphasis about the scope and content. The 2014 report of the House of Lords Constitution Committee, which has been referred to, discussed this very issue of scope. Interestingly, it was Dominic Grieve who said in his evidence that the duty was

“currently considered to relate to his or her department, rather than an overarching guardianship role”.

However, as the hon. and learned Lady said, Lord Falconer took an entirely different view, and the Committee overruled and thought that it was wider.

The Cabinet manual is silent on this particular topic. It refers to the role of the Law Officers in

“helping ministers to act lawfully and in accordance with the rule of law”,

but it makes no mention of the Lord Chancellor’s duty in that respect.

One thing that is tolerably plain is that the role has evolved since the judicial roles fell away. As the report noted in paragraph 63, because of those changes,

“the roles of other individuals and institutions have taken on a greater importance in this respect.”

None of this is in any way to downplay the role of the Lord Chancellor, which remains very important, but that role has to be set in a wider context.

So, that is about the scope.

What about the content? The hon. and learned Member for Edinburgh South West and others, including my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the distinguished Chairman of the Justice Committee, have referred to Lord Tom Bingham’s magisterial work, “The rule of law”, in which he identified the core principle of the rule of law as being

“that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”

As the hon. and learned Lady said, Lord Bingham went on to outline eight principles; we have heard reference to the eighth today. It is also correct to say that other formulations exist; for example, Professor Lon Fuller wrote a distinguished treatise on the authority of law.

Even if lawyers debate its precise parameters, the expression “the rule of law” is generally accepted to include the principle that all people and institutions are subject to and accountable to law that is fairly applied and upheld. It is important that we do not disappear down a rabbit hole on this. The expression is apt to include: one, equality before the law, which is the point that the right hon. Member for Tottenham (Mr Lammy) powerfully made; two, access to independent and impartial justice; and, three, a Government subject to the law, which is a point I will return to. These principles are indeed the bedrock of the freedoms and protections we enjoy in a modern and mature democracy. The hon. and learned Member for Edinburgh South West is a lawyer, the right hon. Member for Tottenham is a lawyer, and so is the Chairman of the Justice Committee. I recognise that lawyers play an important role in upholding those principles. As we know in this Chamber, lawyers have a primary duty, indeed an overarching duty, to the court. Thereafter, they are obliged to fight their client’s corner without fear or favour, and that means doing their best within the law to defend their clients’ interests, and doing so whether or not they agree with the substance of the claim, or indeed the matter.

The Lord Chancellor made comments that particularly resonated with me in his Temple speech at the opening of the legal year earlier this very month. He said that

“it is wholly wrong for any professional to be threatened, harassed or worse, attacked simply for doing their job—we must call it out and deal with it. And make the point that those who attack people providing a professional service will be subject to that very same Rule of Law.”

I entirely agree with that.

Of course, the rule of law is not a purely British notion, although we might like to be proprietorial about it. Students of history will remember that the future President of the United States, John Adams, famously took on the role of defending British soldiers accused of the Boston massacre at the end of the 18th century. It was a deeply unpopular thing for him to do personally, but he was absolutely right to do it.

Let me turn now to the principles that I have rehearsed. The first is equality before the law. Let me take the opportunity to restate the Lord Chancellor’s commitment to our long-standing tradition of ensuring that rights and liberties are protected domestically, and that our international human rights obligations are fulfilled. This was mentioned by the hon. and learned Member for Edinburgh South West as regards Northern Ireland. As the Lord Chancellor set out in his letter to the Chair of the Joint Committee on Human Rights:

“The UK remains committed to the convention”—

that is, the European convention on human rights—

“and will continue to abide…by our obligations under it.”

After all, and I am sure that we all know this, it was a Scots Conservative lawyer, Sir David Maxwell Fyfe, who played a central role in the formulation of the first draft of the convention after the horrors of the second world war.

The important point that I want to make is that the convention contains a number of rights, not all of which I will restate here. One of them, of course, is article 14, which determines that

“The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

That matters, because it is relevant to article 6, which for lawyers is perhaps the pre-eminent article in the convention—I suppose that the right to life is quite important as well—and that is the right to a fair trial. Our courts must do justice and uphold the fairness of proceedings without discrimination. The Lord Chancellor himself is very conscious of that, and I pause to note that he has himself sat as a recorder of the Crown Court.

My second point—I will speed up—is about access to independent and impartial justice. An independent judiciary is the cornerstone of our constitution and democracy. Our judges are selected following a rigorous, independent, merits-based process, which is key to maintaining the quality, integrity and independence of the judiciary. Our constitution recognises that. A point that is sometimes lost is that judges of the High Court and above cannot be removed from office without an address passed by both Houses of Parliament. Judges are also largely immune from the risk of being sued or prosecuted for what they do in their capacity as a judge. They also benefit from immunity from being sued for defamation for the things they say about parties or witnesses in the course of hearing cases. They can and must dispense justice fearlessly, without fear or favour. They do that magnificently well, and we are extremely fortunate to have them. The protections exist for a good reason, and the Lord Chancellor jealously guards them.

The Government are subject to the law. In his speech earlier this month—the one at Temple Church at the opening of the legal year, to which I referred—the Lord Chancellor said:

“Sometimes a lawyer will find the argument they advance to be at odds with the Government of the day—but it frankly is a strength of our mature democracy underpinned by the Rule of Law that such debates can occur.”

Reform, which I accept that the right hon. Member for Tottenham takes issue with, is not, we would submit, automatically to be rejected. Many arrangements can benefit from a considered examination, and the Chair of the Select Committee made that point particularly powerfully. The independent—I stress the word “independent”—review of administrative law endeavours to look at that, but let me say this: the baby will not be thrown out with the bathwater. Judicial review is at the heart of the rule of law in this country. It allows citizens to challenge the Government and other public bodies. The Lord Chancellor is clear that the Government need to be challenged.

I listened to the points made by the hon. and learned Member for Edinburgh South West about the panel to which she referred, which had a former Supreme Court judge, Dominic Grieve, Lord Howard and others—including Jessica Simor, I think. Reference was made to ouster clauses, and I want to make the point that there is nothing in the relevant sections that seeks to ouster completely judicial review. Indeed, if a challenge were brought on the basis of procedural impropriety or all the other familiar grounds, those are not ousted. It is important to keep those concerns in proper context.

On the provision of resources, I know the Lord Chancellor is personally committed to supporting the courts through this pandemic. I mention that because it is part of his oath—adequate resources. My hon. Friend the Member for Aylesbury (Rob Butler) was absolutely right. People seem not to have picked up this point, but the magistrates courts are doing an incredible job. Since the end of July, disposals have exceeded receipts, and that is to their great credit. We accept that it is much more difficult in the Crown court, but the boost that has gone into increasing the amount of technology in the system, and indeed the maintenance budget, is very welcome. It replicates a tripling of funding. We are making progress across all jurisdictions. The scale of the challenge is unprecedented, even if the current volume of cases is not, and it could be necessary to look to further creative solutions in the future.

I shall turn to UKIM in the minute that I have left available to me. The hon. and learned Member for Edinburgh South West is right: Catherine Barnard did say that the very existence of the Bill is a breach of duty of good faith. She said there is a strong argument to that effect, but, respectfully, there are strong arguments in all sorts of directions. As the Chair of the Select Committee said, that is not of itself dispositive.

Before turning to part 5 of the Bill, let me state in general terms that the Bill has been designed to offer businesses the certainty they need and to protect trade and jobs in every part of the UK. I do not accept for a moment that it undermines the devolved settlement, notwithstanding the powerful points that were made. When the hon. and learned Member for Edinburgh South West mentioned Donald Dewar, I pause to recall that, yes, he is sometimes referred to as the “father of the nation”. However, I remember his son saying of his father, with great power, in a 2014 article in the Daily Record:

“If he was with us today, dad would be an eloquent and passionate campaigner for Scotland to keep her place within the union.”

I hope the hon. and learned Lady will forgive me for making that point. The key point about part 5 of the Bill was set out by the Government on 17 September. It would be used

“only in the case of, in our view, the EU being engaged in a material breach of its duties of good faith or other obligations, and thereby undermining the fundamental purpose of the Northern Ireland Protocol.”

Let me close by thanking the hon. and learned Member for Edinburgh South West for securing this important debate. On a personal note, I am very pleased that the Lord Chancellor is in post. He has practised as a lawyer and served as a recorder, and he understands the law’s central role in a fair, free and ordered society. The rule of law matters, and the Lord Chancellor has an unshakeable commitment to uphold it.

[Derek Twigg (in the Chair)]

Joanna Cherry, you have nine seconds.

[Joanna Cherry]

It has been a good debate, but I do not think there have been any answers to my pointed questions. What we need to remember is that it is not a question of growing up; it is a question of the weight of legal opinion. The weight of legal opinion on the Bill is clear.

Motion lapsed (Standing Order No. 10(6)).

[Derek Twigg (in the Chair)]

I suspend the sitting for two minutes. I remind Members to leave via the entrance on the right-hand side.