Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 22nd September 2020 Commons Chamber

[Robert Buckland]

I really find it extraordinary that the right hon. Gentleman brings the code of conduct into these matters. Like him, I am acting as a Member of Parliament. I am acting as a Minister in the Government—[Interruption.] I am not a Law Officer; I am the Lord Chancellor. The Law Officers of this country are the Attorney General, the Solicitor General and the Advocate General for Scotland. I do not give legal advice to the Government. I am not a Law Officer.

However, every member of the Government is obliged to follow the rule of law. It is very clear. I take a particular oath to uphold that and to defend the judiciary. As I have explained, I have absolutely no qualms about what has been happening. I have worked extremely hard to make sure that this House is fully involved. I say to the right hon. Gentleman that the idea that the passage of this Bill is a breach of UK domestic law is just plain wrong, and to misquote me is unhelpful, misleading and damaging, frankly.

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

The Bill affords the United Kingdom Government the power to breach obligations that they freely entered into less than a year ago, rather than employ the dispute mechanism that they agreed to. When Lord Keen resigned as Advocate General, he wrote to the Prime Minister that he found it increasingly difficult to reconcile what he considered to be his obligations as a Law Officer with the Government’s policy intentions. The highly respected former Attorney General the right hon. Dominic Grieve has said that the Lord Chancellor’s position is even more clear cut than that of the Law Officers, and that the Lord Chancellor has taken

“an oath of office to uphold or protect the rule of law. The rule of law includes international law…his position is untenable.”

Are both these senior distinguished QCs, Lord Keen and Dominic Grieve, wrong? If not, why is the Lord Chancellor still in office?

[Robert Buckland]

The hon. and learned Lady is right to draw attention to Lord Keen. I pay tribute to his long service in the Government as Advocate General for Scotland, and I was sorry to hear of his resignation. I do not believe that it was necessary, bearing in mind the important changes that have been made to the Bill.

I think that the position is now very clear. The hon. and learned Lady talks of breach, but as I will remind the House again, the eventuality or potential use of these clauses would be only if the EU was in material breach of its obligations, and therefore we would be facing a breakdown. I remind her again that of course we will use the withdrawal agreement mechanism and the arbitral mechanisms within the provisions of the withdrawal agreement, and indeed the Northern Ireland protocol, too. It is not a question of us abandoning our obligations; we will use them, but this is the “break glass in case of emergency” provision that underlies and will protect the United Kingdom’s position if we face such a breakdown.

[Joanna Cherry]

Lord Keen’s resignation was in keeping with the highest traditions of the Scottish Bar. The Lord Chancellor has said that he wants us to consider his own actions as an MP and a Minister rather than as a lawyer, so I put this to him. In 2018, in the Gulf case, England’s Court of Appeal ruled that a Government Minister’s overarching duty to comply with the law includes international law and treaty obligations, even though these are no longer explicitly stated in the ministerial code. This Bill gives the Lord Chancellor and other Ministers the power to run a coach and horses through their obligations under the withdrawal agreement. I know that Conservative Members do not like hearing that, but that is the reality. In the light of what the English Court of Appeal has said, just how is this Bill compatible with his oath as the Lord Chancellor to uphold the rule of law?

[Robert Buckland]

As I have said to the hon. and learned Lady, the contingency that underlines the coming into force and use of these powers is a very narrowly and clearly delineated one. I do not believe, as I have said in public, that we are at that stage, and I do not believe we will get to that stage, if both parties renew their efforts, act in good faith and double down on making sure that we get a resolution. It would have been far easier for us to avoid the issue, to pretend that there was not going to be a problem, and then to hit the new year with an avalanche of difficulties when it came to Northern Ireland and its relationship with the rest of the United Kingdom. Members of this House would have rightly criticised us, and, frankly, we would have been in an indefensible position. This is a tortuous process. I reject her allegations—her assertions. We will continue to govern responsibly and consistent with our obligations under the rule of law.