Brexit

Lord Campbell of Pittenweem Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, in preparation for this debate, I both watched and listened to the Prime Minister’s speech. I have come to the conclusion that it was not time well spent.

I would like to concentrate on the consequences of Brexit, and in particular the impact on the rule of law. If the rule of law is to be effective, it must be observed both in substance and in process. Yet we continue to have the threat from the Prime Minister, supported by others in his Government, that somehow a way will be found to avoid implementing the obligations contained in the European Union (Withdrawal) (No. 2) Act. Not only does that Act carry the imprimatur of both Houses of Parliament; it has Royal Assent. So, by his very conduct in even suggesting it, the Prime Minister is yet again undermining the position of the monarch.

I was stimulated to deal with this topic by an article written by the noble Lord, Lord Hague, which appeared in a national newspaper this week. He argued that the rule of law was of great importance for the Tory party. That ought to be true, but I am not sure it is what we have been seeing in practice—and it is perhaps most important for the country. After the announcement of the judgment of the Supreme Court, Minister after Minister sought to undermine that judgment—some covertly, others by way of open attack. To attack judges in that way is a contempt of court; in Scotland it used until 1971 to be called “murmuring” a judge. To attack them in that way is to defame them; you are behaving in a defamatory way.

All that culminated in the suggestion that there should be public hearings of confirmation before individuals could ascend to the Supreme Court. I do not shrink from saying that that was a full-frontal attack on judicial independence. How would we apply it? Would we draw on the recent experience of the United States? Would that be our benchmark? Would we say to people, after Senator McCarthy, “Are you now or have you ever been a member of the Conservative Party?”. Exactly what would the questioning amount to?

[Lord Framlingham (Con)]

Does the noble Lord acknowledge that both the Master of the Rolls and the Lord Chief Justice disagreed entirely with the view of the Supreme Court?

[Lord Campbell of Pittenweem]

I acknowledge that, but the fact of the matter is that, in our system, the Supreme Court is, as its name suggests, supreme. That decision having been taken, it is in my view wholly unacceptable to have the kind of treatment that was made covertly and, in some cases, openly in relation to the judgment issue. The same would have been true if, for example, those of the same cast of mind as Gina Miller had attacked the decision made by the divisional court. Attacking the independence of judges matters not for what they have decided; what matters is their independence, and that must be emphasised and encouraged at all stages.

Will the Minister name a legal jurisdiction which is more independent, impartial or incorruptible than the two legal jurisdictions of the United Kingdom? Politicisation will be the death knell of all three of these vital qualities. The fact is that, if the Supreme Court had found in favour of the Government, it would have been praised for its Periclean wisdom. Medals might even have been struck.

[Lord Heseltine (Non-Afl)]

Of the 11 members of the Supreme Court, nine were appointed under a Conservative Prime Minister. Might that not have been used as an argument, if they had found for the Government, indicating corruption?

[Lord Campbell of Pittenweem]

There are plenty of illustrations of how those who have had a political affiliation, when elevated to the Bench, are able to put that beyond them.

The Prime Minister did not dare to publish his proposals before his party conference; he did not dare to tell his conference what the proposals were; and he declined to tell Parliament until after their publication. I think that tells us quite enough about the Prime Minister and his willingness to adopt attitudes of openness and accountability.

I hope that the Minister will respond to the last matter I will raise. Yesterday, it was said on behalf of the Government that the proposals did not involve infrastructure. How can customs checks be carried out in the middle of a field? Who will carry out that check? What, if any, infrastructure will there be, even if it is only a camera at the end of a pole? Would not these things be of an attractive nature to the dissidents, albeit in a minority, whom we still find in Northern Ireland? We are too close in many respects to the consequences of the Troubles not to accept that to introduce anything that seems in any way to prejudice the Belfast agreement could cause unrest and even, beyond that, death and damage.

--- Later in debate ---

[Lord Callanan]

We will discuss many of these proposals in detail tomorrow.

[Lord Campbell of Pittenweem]

My Lords, I thank the Minister for giving way. I have now had the opportunity to look at the document entitled “Explanatory Note”. On page 6, in paragraph b, it says that:

“Physical checks—which would continue to be required only on a very small proportion of movements based on risk-assessment—could then take place at traders’ premises or other designated locations which could be located anywhere in Ireland or Northern Ireland”.


If these checks are to take place in Ireland, surely that will require the co-operation of the Irish Government.

[Lord Callanan]

Of course it will require the co-operation of the Irish Government. We want to discuss with them and the EU how we can address the unique situation of the circumstances in Ireland to bring about our exit from the European Union without imposing border infrastructure. That is what we want to achieve. We recognise that it is a unique and unusual circumstance. Indeed, we expect that the Irish Government will also wish to ensure that there is no infrastructure on their side either.