Rule of Law

Lord Keen of Elie Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Falconer of Thoroton]

To ask Her Majesty’s Government, further to the remarks made by the Secretary of State for Northern Ireland on 8 September confirming that certain provisions of the United Kingdom Internal Market Bill relating to the Northern Ireland Protocol would “break international law” (HC Deb, col 509), whether they are committed to the rule of law.

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

My Lords, the Government have not proposed any breach of UK law. On occasions, tensions can arise between our domestic obligations and our international commitments and we will always seek to resolve these, as we have in the past. The freedoms and protections that we all enjoy rely on the rule of law; it is an important constitutional principle and, as a responsible Government, we remain committed to it.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble and learned Lord, the Advocate-General, for that Answer. Brandon Lewis’s acceptance that this Government are deliberately breaking international law will be thrown in the UK’s face for years. Expect dictators to justify murderous breaches of international law by relying on the Lewis mantra: “specific and limited”.

Demanding compliance with anti-Covid measures, yesterday the Prime Minister said:

“We expect everybody … to obey the law.”—[Official Report, Commons, 9/9/20; col. 608.]


The Home Secretary condemned Extinction Rebellion for law-breaking. The rule of law is not pick and mix, with acceptable laws chosen by the Home Secretary or an adviser in No. 10. This stinking hypocrisy chokes our country’s reputation and destroys our Government’s ability to lead at home and make agreements abroad.

In June 2018, the noble and learned Minister, a law officer, whom I am surprised to see in his place, lectured on the importance of law, describing the law officers as

“champions of the … law within government”,

and said that their

“duty … is to ensure that the Government acts lawfully at all times”.

Jonathan Jones agreed and left. Law officers and the Lord Chancellor must stand by their self-proclaimed duty or leave. Otherwise, they will be dismissed as long on self-importance and short on the backbone that their great offices require.

I have two questions. First, how is the admitted breach of international law consistent with the UK’s commitment to the rule of law? Secondly, on what basis does he, as a law officer, remain part of the Government?

--- Later in debate ---

[Lord Keen of Elie (Con) [V]]

My Lords, I think the noble and learned Lord broke up slightly when he was asking his second question, but I certainly understood the drift of his remarks.

[Lord Falconer of Thoroton (Lab)]

Secondly, on what basis does he, as a law officer, remain part of the Government?

[Lord Keen of Elie (Con) [V]]

I thank the noble and learned Lord.

My Lords, from time to time, as I indicated, tensions occur between our domestic legal obligations and our position with regard to international law. Indeed, in 1998, the then Labour Government passed the Human Rights Act, including Section 19 that required statements of compatibility to be made when Ministers introduced legislation. Interestingly enough, Section 19(1)(b) had an alternative statement, which required the Minister to say that

“he is unable to make a statement of compatibility”

with our international obligation but that

“the government nevertheless wishes the House to proceed with the Bill.”

In 2002, the Labour Government introduced the Communications Bill with just such a certificate, because it was perceived that Clause 309 of that Bill could be considered to violate our international obligations under Article 10 of the convention. From time to time, we face these tensions.

Here, there is a very real tension between the direct effect of EU law pursuant to Article 4 and what would occur if we had no agreement at the end of the transition period and there was no determination by the Joint Committee as to the way forward under the Northern Ireland protocol. That is because there are other provisions apart from Article 4. There is Article 4 of the protocol itself, which determines that Northern Ireland is part of the UK’s customs area. There is Article 16 that deals with societal and economic pressures that could lead to us being in breach of the Belfast agreement. All these have to be considered.

Against that contingency, Ministers considered it appropriate to provide, or ask Parliament to provide, a means of addressing these issues. At the end of the day, it will be for the sovereign Parliament to determine whether Ministers should be able to deal with such a contingency. Indeed, it will be for this House to determine whether it considers it appropriate for Ministers to be able to deal with such a contingency.

In these circumstances, I continue in post and continue to advise, encourage and stipulate adherence to the rule of law—understanding that, from time to time, very real tensions can emerge between our position in domestic law and our position in international law. It is not unprecedented for legislation passed by this Parliament to cut across obligations taken at the level of international law. In those circumstances, domestic legislation prevails.

[The Lord Speaker (Lord Fowler)]

My Lords, I remind the House that this is not a debate; we are asking questions. If the next contributors could keep their questions short, and Ministers could keep their answers short as well, it would be to the benefit of everybody.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

Has a certificate such as the noble and learned Lord referred to a moment ago been given in relation to this Bill, suggesting that it does not comply with international obligations?

The Prime Minister persuaded the Queen to prorogue Parliament unlawfully a year ago, his chief adviser Cummings unlawfully broke the law on his Barnard Castle jaunt, and now the Prime Minister will ask the Queen to give her Royal Assent to what is effectively an unlawful Bill that quite deliberately breaks international law. The Tory shadow Counsel General in Wales, the highly respected David Melding, resigned yesterday, and the head of the Government’s legal service resigned two days ago. Having regard to the oaths of office to uphold the rule of law, why are the Lord Chancellor and the Attorney-General still in office, even if the noble and learned Lord himself clings to it?

[Lord Keen of Elie (Con) [V]]

My Lords, first of all, the Minister presenting this Bill has given a certificate of compatibility pursuant to the Human Rights Act; that has been done.

As regards the further issues raised, it will be for Parliament to determine whether, at the end of the day, it decides to pass this legislation. That is a matter for Parliament, and the Ministers have presented the Bill to Parliament for those purposes.

[Lord Judge (CB) [V]]

My Lords, given that, by the Executive’s own assertion, they propose to break the law in a specific and limited way, are they to be exempted from the basic principle that the rule of law, which includes adherence to international treaty obligations, binds all of us? If so, where will this violation of constitutional principle end?

[Lord Keen of Elie (Con) [V]]

As I previously indicated, my Lords, there are exceptional circumstances that arise, from time to time, when we find ourselves with a tension between our domestic legal regime and our obligations at the level of international law. There are also occasions when we find some conflict between different international law obligations. We adhere to the rule of law, but we understand the need to try to resolve tensions that may emerge if, at the end of the day, we do not have a post-transition agreement and determinations from the Joint Committee.

[Lord Howard of Lympne (Con)]

My Lords, does my noble and learned friend simply not understand the damage done to our reputation for probity and respect for the rule of law by those five words uttered by his ministerial colleague, in another place, on Tuesday— words that I never thought I would hear from a British Minister, far less a Conservative Minister? How can we reproach Russia, China or Iran when their conduct falls below internationally accepted standards, when we are showing such scant regard for our treaty obligations?

[Lord Keen of Elie (Con) [V]]

My Lords, we are not showing scant regard for our treaty obligations. We are endeavouring to allow for a contingency that may arise very soon, which will require us to ensure that we can discharge our obligations to Northern Ireland. That creates difficulties, so far as the direct effect of EU law is concerned, if there is no post-transition agreement and no determinations by the Joint Committee.

[Lord Blunkett (Lab)]

As a non-lawyer, I ask a simple question. Alongside the breach of our international obligations, is this not a breach of respect for Parliament and democracy, given that the Prime Minister signed up to this agreement, forced it through as part of the Act and knows perfectly well that it is nothing to do with the negotiations towards the end of this year, but an admission of complete failure to understand what he was putting through Parliament?

[Lord Keen of Elie (Con) [V]]

I do not accept that. This is not a case of the Executive or Ministers seeking to act contrary to the will of Parliament. This is a case in which Ministers have brought legislation and laid it before Parliament for Parliament to determine whether provision should be made for the contingencies to which I have referred. This shows complete respect for Parliament and if, at the end of the day, Parliament and this House do not wish to confer the ability to deal with these contingencies on Ministers, they will not. It is a matter for Parliament.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Government have used terms such as “clarification” and “safety net” in describing the Bill. It is nothing of the sort; it is a direct abrogation of the withdrawal agreement. This is an issue about national integrity and the rule of law, as Sir Jonathan Jones recognised in resigning as Treasury Solicitor. I ask the noble and learned Lord how he would describe a barrister with whom he had negotiated a detailed written settlement agreement, who then explicitly reneged on that agreement by announcing an intention to act in direct contravention of both the agreement and the law.

[Lord Keen of Elie (Con) [V]]

The situation outlined by the noble Lord does not reflect that which exists in the context of a potential tension between our domestic legal obligations to Northern Ireland and the terms of the withdrawal agreement, in the event that we do not achieve the goals that all parties intended, including the ability to ensure the maintenance of the Belfast agreement.

[Baroness D'Souza (CB) [V]]

My Lords, tanks on the lawn will not, in the UK at least, herald the end of democracy or of adherence to the rule of law. It is shocking that the following clause is set out in government-proposed legislation:

“Certain provisions to have effect notwithstanding inconsistency or incompatibility with international or other domestic law”.


Will the Government either withdraw this derogation or provide compelling justification for its inclusion?

[Lord Keen of Elie (Con) [V]]

My Lords, the Government will seek to provide compelling justification for its inclusion. Ultimately it is for this Parliament to determine whether that case has been made.

[Lord Hunt of Wirral (Con)]

While declaring my interests set out in the register and as chair of the Society of Conservative Lawyers, I ask my noble and learned friend the Minister whether we are rewriting or amending the withdrawal agreement or the Northern Ireland protocol.

[Lord Keen of Elie (Con) [V]]

My Lords, we absolutely are not. It would not be possible for us to unilaterally rewrite either the withdrawal agreement or the terms of the Northern Ireland protocol. We understand that. It is why my right honourable friend the Secretary of State for Northern Ireland was so candid in his remarks in the other place.

[Lord Empey (UUP) [V]]

At the beginning of July, the Government allocated £25 million to help businesses in Northern Ireland manage the regulatory and customs consequences arising from the Northern Ireland protocol. By 29 August, this sum had risen to a staggering £355 million. Can my noble and learned friend explain how a unionist Government are allocating hundreds of millions of pounds to police a border, within the United Kingdom, which they claim does not exist legally?

[Lord Keen of Elie (Con) [V]]

I am not familiar with the precise sums that have been expended, as explained by the noble Lord. On paragraph 4 of the Northern Ireland protocol, it is expressly agreed by everyone that Northern Ireland will remain a part of the United Kingdom customs area. We as a Government are determined to ensure that that remains the case after the transition period.

[Baroness Crawley (Lab) [V]]

My Lords, government spokesmen have said all this week that we need to disapply aspects of the withdrawal agreement, which we signed, in case of no deal. However, does the Minister agree with his Irish counterpart Simon Coveney, who said in his address to the Dáil last night that the Irish

“protocol agreed as part of the withdrawal agreement is designed and empowered to operate in all circumstances, including in the absence of an agreement on the future relationship between the EU and the UK”?

If the Minister agrees, why are the Government risking their international reputation by setting aside the upholding of international law?

[Lord Keen of Elie (Con) [V]]

My Lords, that is because we will require consideration of not only the absence of a post-transition agreement, but the absence of clear determinations by the Joint Committee, which would render the Northern Ireland protocol potentially unworkable.

[The Lord Speaker (Lord Fowler)]

The time allowed for this Private Notice Question has elapsed. I apologise to those noble Lords who have not been able to get in, but it brings the PNQ to an end.