Legal Advice: Prorogation

Debate between Geoffrey Cox and Lady Hermon

Wednesday 25th September 2019 Commons Chamber

[Lady Hermon (North Down) (Ind)]

Thank you, Mr. Speaker. I have listened very carefully to the Attorney-General—I have not agreed with a fraction of what he has said—but I would like him to answer a specific question. Did it never cross his mind that if the Prime Minister made a ridiculous decision to prorogue Parliament for five weeks in the run-up to Brexit, which is the greatest constitutional change to the UK for years, the courts would rule that to be an unlawful Prorogation of Parliament?

[The Attorney General]

If I were to answer that question—tempting though it is, particularly from the hon. Lady, who is also a friend—I would be transgressing the Law Officers’ convention, because I would be telling her what advice I had or had not given. But if she is asking, “Did it occur to me?”, my answer is that of course it did. Any barrister who enters into litigation without it occurring to him that he might lose is a bit of a nit, isn’t he? Of course it occurred to me that we might lose; it would be ridiculous for it not to occur to me.

European Union (Withdrawal) Act

Debate between Geoffrey Cox and Lady Hermon

Tuesday 15th January 2019 Commons Chamber

[The Attorney General]

I understand the force of what my hon. Friend says, but precisely the same prevails in numerous EU countries. For the purposes of regulation, the Canary Islands are treated as a third country to Spain. It is not for the purposes of regulation alone—single market regulations alone. There are examples all around the world of where there are regulatory differences between individual parts of the jurisdiction of sovereign states.

[Lady Hermon (North Down) (Ind)]

On a previous occasion, in early December, in what I thought was a magnificent performance, Attorney General, you used a very striking description of the backstop. You described the backstop as an “instrument of pain”—

[Lady Hermon]

You are quite right, Mr Speaker. The Attorney General described the backstop as an instrument of pain. He said it was

“as much an instrument of pain to the European Union as…to the United Kingdom.”—[Official Report, 3 December 2018; Vol. 650, c. 555.]

That is very strong language indeed—an “instrument of pain” for the European Union. Will the Attorney General take some time to explain that in detail? I think that would be very helpful.

[The Attorney General]

I am immensely obliged to the hon. Lady because that is precisely what I want to move on to.

If we accept, and I urge this House to accept, that effectively 90% of this withdrawal agreement—some 450 of the 585 pages—in fact settles these crucial outstanding matters, which no sensible person could doubt require to be settled in order to effect our departure, that leaves the two grounds of objection that have been advanced—I listen with great care to speeches from Members on the Opposition side of the House—to this agreement and declaration, so may I come to those two grounds? Before I do, I simply say that there are some typical misconceptions about the withdrawal agreement. For example, it is said that the Court of Justice of the European Union retains jurisdiction over our courts once the time-limited obligations have wound down that the withdrawal agreement settles. It does not. It does not. It does not. It does not. How many times do I have to say it to my hon. Friends? [Hon. Members: “More.”] It does not! The fact of the matter is that once—once—these obligations have wound down, the CJEU will have no jurisdiction over the resolution of disputes between individuals, citizens, businesses in our country. This is what our people voted for and we, by adopting this withdrawal agreement, can give it to them.

Secondly, it is said that we will be permanently bound by EU rules. But we will not. The fact of the matter is that the withdrawal agreement’s obligations are inherently time-limited. Once they have wound out, the EU rules will no longer have effect in this country.

European Union (Withdrawal) Bill

Debate between Geoffrey Cox and Lady Hermon

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Cox]

If my hon. Friend will forgive me for a moment, I need to develop an argument, because I want to move on.

Let us accept for the moment that there is a second and perfectly legitimate way, which international law accepts. International law does not require subscribing nations of the United Nations to adopt a Bill of Rights, and neither does the European Court of Human Rights—it never did require us to do so. It looked at the substantive and practical effect and how those rights were substantively protected in the jurisdiction. If we accept that for a moment, why should we not proceed by means of the Government’s proposed policy of examining specific statutory remedies and specific rules of common law, and considering whether the right is satisfactorily protected?

Some of us believe that the courts are not always the right place in which to deal with these matters. For example, article 20 of the charter of fundamental rights simply contains a right to equality before the law. That right has been enshrined in the common law in this country for centuries. Why should we have it in the charter of fundamental rights? Some say that there will be a problem between the two charters—

[Lady Hermon]

Will the hon. and learned Gentleman give way?

[Mr Cox]

I will give way to the hon. Lady, but not now.

Some say that there will be a collision. I am not sure that I buy the argument that there will be too much of a conflict or collision between the charter and convention. Quite frankly, my experience in the courts is that when both are relied on, the judge usually ignores the charter. As I said to the hon. and learned Member for Edinburgh South West (Joanna Cherry), the judge asks, “What does it add?” One may hum and haw, and try to come up with something, and the judge thereafter says, “Well, let’s concentrate on the Human Rights Act and the convention, shall we?”

The truth of the matter is that I do not deny that a modest—I repeat, a modest—extension in the courts has been effected in very recent years by the charter. The case of Benkharbouche is an example of an applicant being able to set aside part of the immunity from suit that the State Immunity Act 1978 conferred on a foreign embassy. Article 6 of the convention did not apply to the employment context, but article 47 of the charter, which guaranteed an effective remedy and a fair hearing in circumstances covered by the scope of European Union law, allowed that lady to argue that part of the statute should be set aside, and it was set aside.

Similarly, in the Vidal-Hall data protection case, the restriction under section 13 of the Data Protection Act 1998, which this House had imposed—it said that if people wanted to bring an action for damages under the Act, they had to show they had actually suffered damage—was set aside by the court on the basis that the data protection directive contemplated cases in which people suffered not merely damage, but distress. However, whether somebody should be able to sue the state or anybody else for damages because they have suffered distress or has to prove that they have suffered pecuniary distress is a matter for this House.

That is what I mean when I say that these matters are resolvable in numerous ways. Many Members on both sides of the House would disagree on the question of whether it was a legitimate public policy judgment that we should restrict an action for the breach of the Data Protection Acts to cases where actual damage was suffered or whether distress was enough. Why should it be resolved by a court? Why should it not be resolved by the House? That is part of the reason why Members on both sides of the House voted to leave the European Union in the first place. We believed that those kinds of decisions needed to be taken here, not by courts and not by the imposition of a law in which we did not have a majority say in this kind of question.

I want to develop what I hope is a coherent argument. I was addressing the question of whether or not there was a conflict between the human rights order—a disharmony imposed by the convention—and that which might be imposed by the incorporation of the charter. There could be real problems ahead. There will be cases in the broad and expansive definitions of European Union law, under which the charter applies when it falls within the scope of EU law, when a moral dilemma confronts a court that is asked to disapply an Act of Parliament. The supremacy principle is retained, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) observed, by the Act. In cases in which it is covered by the charter, and in which such a dilemma has arisen, the Act is set aside because of Benkharbouche and Vidal-Hall. If the charter is incorporated, its vague and general statement of rights will have binding force, so the Act will be set aside.

If I bring a case under the convention and I say that the Act should be set aside because I have suffered inhuman and degrading punishment, or some of the worst violations of human rights that could be conceived by a state, I cannot have the Act of Parliament set aside, which introduces an element of absurdity in our law. Apparently one can torture someone and not have the Act of Parliament set aside, but I cannot have my workplace rights infringed: in that case, I can have the whole caboose set aside—a whole Act of Parliament and statutory apparatus. It makes no sense, and it will bring our law into disrepute if we tolerate for long a situation in which a court faces a moral dilemma when a case is brought under a general statement of human rights. In some cases that are litigated, the court can set aside Acts of Parliament, but in other cases, it cannot do so, even when it involves the most serious violations of human rights imaginable.

Everyone accepts that the Bill legislates for an unsatisfactory situation—we can all agree on that. I tell my friends on the Conservative Benches with whom I have far more in common than that which divides us, even though we may have been on different sides of the debate on the question of belonging to the European Union, we can all agree on some fundamental things. It cannot be right to go on for long with a body of law in our overall legal order that permits and allows higher, special and better rights in certain circumstances. Incorporating the charter will exacerbate that problem. The protection of the rights that Opposition Members have rightly identified as worthy of protection can be accomplished by a different means. The right hon. Member for East Ham (Stephen Timms), who is not in his place, spoke so well on data protection. It is absolutely right that we need to make certain that our data protection laws are no less important that those we find on the continent, but we do not need to do that by incorporating a general statement of a right and leaving it to the courts to enforce.