UK Military Action in Iraq: Declassified Documents

Neale Hanvey Excerpts

Wednesday 13th December 2023 Westminster Hall

[Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)]

I beg to move,

That this House has considered the matter of UK military action in Iraq and declassified documents from 1998.

By way of introduction, I pay tribute to Declassified UK, and in particular its co-founder and editor, the journalist and author Mark Curtis, who has provided an invaluable public service by shining a light on declassified British documents from 1998 at the National Archives. The documents, which run to over 900 pages, reveal what actually went on behind the scenes when the UK Government decided to take military action in December 1998 in what became known as Operation Desert Fox: the four-day bombing campaign in Iraq from 16 to 19 December 1998 by the United States and British militaries. This is important in and of itself, but also because it was the precursor to the invasion of Iraq in 2003.

Before I turn to the key findings from the declassified documents, let me recap the human cost of military action in Iraq. This House will forever remember the sacrifice of the 179 British servicemen and women, as well as the 23 British civilians, who lost their life during the conflict in Iraq. Yesterday, I joined the War Widows Association for its Christmas gathering; I pay tribute to its secretary, my Kirkcaldy and Cowdenbeath constituent Sue Raw, and to the amazing women and men who have lost a loved one during a conflict, or as a result of the lasting consequences of conflict.

In addition, there is also the horrific human cost of the war in Iraq. A research study published in The Lancet in 2006 estimated that more than 655,000 Iraqis had died as a consequence of recent wars. In November 2006, the United Nations High Commissioner for Refugees reported that 1.8 million Iraqis had been displaced to neighbouring countries, and 1.6 million were displaced internally. As recently as March 2023, the Watson Institute for International and Public Affairs at Brown University estimated that 1.1 million Iraqis are still displaced internally or live as refugees abroad. According to an April 2014 report in The Guardian, the war cost the British taxpayer £9.6 billion. Doubts over the legality of the invasion of Iraq have done irreparable reputational damage to the western world, including the United Kingdom, throughout the middle east and among Muslim populations both at home and abroad.

I turn to the key findings from the declassified documents in relation to discussions involving, and advice given by, the then Foreign Office legal adviser, the Solicitor General, the Chief of the Defence Staff, the Attorney General, the Deputy Secretary for Defence and Overseas Affairs.

On 12 February 1998, the Foreign Office’s legal adviser, Sir Franklin Berman, wrote to his Department’s senior civil servant. He said that

“the only valid claim to employ force (in this case) is under the authority of the Security Council…my view is that a new resolution in suitable terms is a sine qua non.”

He added:

“The Ministerial Code requires Ministers to comply with the law, including international law…I cannot believe that Ministers would wish to order British servicemen into action unless their legal advisers were able to assure them that it was legally justifiable.”

The then Prime Minister, Tony Blair, was again told of the Foreign Office view two days later, on 14 February, in a meeting with the then Solicitor General for England and Wales, now Lord Falconer. Referring to the UK’s invasion of Egypt over Suez, Lord Falconer told Tony Blair that in the Foreign Office

“some lawyers argued very strongly that it would be the first time since 1956 that the UK had used force without the backing of the Security Council resolution”.

Lord Falconer stated that some lawyers

“might feel strongly enough to resign”,

as they might be expected to implement decisions

“that they believed were incompatible with international law”.

Five days later, on 19 February, Prime Minister Tony Blair, Foreign Secretary Robin Cook and the then Defence Secretary, now Lord Robertson, attended a briefing by Chief of the Defence Staff Sir Charles Guthrie and Air Marshal John Day on

“targeting plans for operations against Iraq”.

The minutes note that the Chief of the Defence Staff

“mentioned that he was worried about the legal side; he hoped this could be sorted quickly”.

The minutes then state: “The prime minister”—Tony Blair—

“noted that the legal advice was that securing another”

Security Council resolution “was preferable.” They added:

“The prime minister concluded that…he did not want to have everything depending on securing a further Resolution”.

What on earth did he mean by “everything”? What exactly had he committed to? We know that Tony Blair had been told by then—in a communication entitled “The Legal Use of Force”, from Michael Pakenham, deputy secretary for defence and overseas affairs, to John Holmes, principal private secretary to the Prime Minister—that a further resolution was essential, not preferable. Tony Blair’s statement in the minutes of the meeting with the Chief of the Defence Staff implies that he would be prepared to use military force without such a resolution. That is unlawful, yet that is exactly what happened as events transpired.

One note in the bundle of papers, which is undated but likely to be from February 1998, appears to be from officials in advance of a meeting between Tony Blair and Attorney General John Morris. This note suggests that Tony Blair pressed Morris to legally justify the use of force. The “Speaking Notes for the Prime Minister: Iraq—The Legal Position” reference Morris’s memo of 14 November 1997 and say that it “helpfully indicated” there could be “exceptional circumstances” in which the use of force could be justified without a Security Council statement. The note then says:

“I trust that you can confirm now that my description of what would constitute ‘exceptional circumstances’ is correct”.

However, Morris’s memo clearly states the following:

“Such a situation has not yet arisen; and even in such extreme circumstances, the UK could expect to be questioned closely about the legal basis for its resort to military force. The Government would need to have the strongest factual grounds for such action.”

This advice from Attorney General John Morris makes it clear that a Security Council statement was “an essential precondition” to using force.

In July 1998, Michael Pakenham, deputy secretary for defence and overseas affairs, wrote a confidential note entitled “The Legal Use of Force”. That was sent to John Holmes, principal private secretary to the Prime Minister. In it, he said that the Foreign Office legal team were continuing to advise that

“the bottom line remains that in most foreseeable circumstances, a Resolution of the UN Security Council is required before the use of such force can be authorised”.

He added that

“acting against UN principles or without”

UN Security Council resolutions

“may in the short term meet…immediate need but is in the long term wholly contrary to our interests”.

The communication also states:

“the advice given by the FCO legal team, and closely followed by the Law Officers, is that there are certain fundamental rules which any Government must follow, and tests they must meet, before authorising the use of force by our Armed Services. Without such tests being met, there would be a very real risk of members of the Armed Services being subject to criminal prosecution.”

In summary, the then Foreign Office legal advisers stated that the

“only valid claim to employ force”

was under the authority of the United Nations Security Council. The Solicitor General warned Tony Blair that there were lawyers who might resign rather than have to implement decisions “incompatible with international law”. It is absolutely clear that neither the Foreign Office’s legal adviser nor the Solicitor General was willing to advise that military action was legally justifiable.

We have evidence of the then UK Prime Minister pressing the then Attorney General to provide a legal justification for military action. If that was not concerning enough, we also had the Chief of the Defence Staff stating that he was worried about the legal side. Crucially, the deputy director for defence and overseas affairs offered absolute clarity that

“the bottom line remains that”

a UN Security Council resolution is required before the use of force can be authorised. In fact, the communication sent to Downing Street makes it clear that the Prime Minister’s office was told that that was essential.

On 14 November 1998, Tony Blair authorised the strike on Iraq, but UK and US forces were stood down at the last minute, when Saddam Hussein agreed to permit weapons inspections. Just before Iraq’s climbdown, Tony Blair held a meeting with the Foreign Secretary, Robin Cook, the Defence Secretary, now Lord Robertson, and the Chief of the Defence Staff, Charles Guthrie, in which he affirmed:

“The time had now come for military action to be taken against Iraq.”

According to the minutes of that meeting, there was no consideration of legality, except that it was agreed to justify the use of force

“not because he [Saddam] was in technical breach of UN Resolutions but because he posed a real and imminent threat to peace and security in the region”.

As Declassified UK has stated:

“This was a de facto acknowledgement that the threshold demanded by Britain’s legal advisers—new Security Council authorisation—had not been met.”

On 16 December 1998, the US and UK struck Iraq in a wave of air attacks. Almost 100 sites were attacked by US and British aircraft and cruise missiles from US navy ships and B-52 bombers. General Peter de la Billière, a former head of the SAS who commanded British forces in the 1991 Gulf war, questioned the political impact of the bombing campaign.

It is clear from the declassified documents that Tony Blair misled Parliament. When he announced military action to Parliament on 17 December 1998, he said:

“I have no doubt that we have the proper legal authority, as it is contained in successive Security Council resolution documents.”—[Official Report, 17 December 1998; Vol. 322, c. 110.]

But that was clearly misleading, as he had been consistently advised—by the Solicitor General, the Attorney General, the Foreign Office legal adviser and the deputy secretary for defence and overseas affairs—that further UN authorisation was required for the use of force. Thus, British officials justified their action by claiming that other UN resolutions previously passed in 1998 revived the authorisation to use force provided in resolution 678, a remnant of the Gulf war, passed eight years earlier in 1990.

Since the other resolutions did not explicitly authorise the use of force, the UK argument was a spurious one. Of the 15-member Security Council in 1998, only three members supported the action: the US, Japan and Portugal. Five years later in 2003, the UK and US relied on the same resolution, 678, to justify their subsequent invasion when they again failed to secure a further Security Council resolution for the use of force.

These files from 1998 suggest that Tony Blair was motivated more by maintaining relations with the US than by upholding international law—something of which he was again culpable in 2003. On the same day, President Clinton told Tony Blair during a phone call that military action against Iraq might have to be used. Blair replied, saying that he agreed and that Mr Clinton

“could count on our support throughout”.

That commitment of support was not underpinned by international law.

On the point about Saddam Hussein being unwilling to co-operate, Tony Blair said:

“we would have to enforce our will”,

adding,

“even if there were some differences between us on the legal front”.

According to Declassified UK,

“Blair was intimating to the US president he was prepared to override British legal concerns”

and obligations.

On 14 February 1998, as Washington and London were close to striking Iraq, Blair told Solicitor General Lord Falconer:

“it was inconceivable that we would refuse the Americans the use of the base at Diego Garcia. At the very least this had to be legally possible.”

So far, the Government have not declassified all files relating to this period. They have kept secret several of the Iraq files from the Prime Minister’s office, which cover the end of 1998 and the beginning of 1999. Can the Minister explain why these documents have not been put in the public domain and when we can expect publication? The files do not appear to contain the minutes of the meeting between Prime Minister Tony Blair and Attorney General John Morris. Can the Solicitor General confirm whether that is the case and whether the minutes will be published in full, and if so, when?

These declassified documents show that Tony Blair was determined to take military action against Saddam Hussein in 1998, against explicit advice and in the absence of sound legal arguments or justification. They show that Tony Blair dismissed legal objections to his 1998 bombing campaign. That was the direct precursor to his stance on the invasion of Iraq five years later in 2003, which was also deemed illegal by UN Secretary-General Kofi Annan, when he said of the war in September 2004:

“From our point of view and from the charter point of view it was illegal.”

Indeed, it was the then Foreign Secretary Jack Straw who privately warned Tony Blair in 2002 that an invasion of Iraq was legally dubious, stating that

“regime change per se is no justification for military action”,

and that

“the weight of legal advice here is that a fresh…mandate may well be required”

from the UN. Those words chime with, and are foretold in, the declassified documents that I have highlighted.

I want to place on record my appreciation to parliamentarians who have raised similar concerns in the past, including former Labour MP Dennis Canavan, the right hon. Member for Islington North (Jeremy Corbyn), and the SNP’s Margaret Ewing and Jim Sillars. I recall that Margaret Ewing questioned the Prime Minister directly in the House at the time, and in 2016 Jim Sillars called for a retrospective Iraq war crimes Act to be passed by the Scottish Parliament. It was the right hon. Member for Haltemprice and Howden (Mr Davis) who stated:

“The second Iraq war was started to liberate the Iraqi people. Instead, it shattered their country. It was intended to stabilise the middle east. Instead, it destabilised the middle east.”—[Official Report, 14 April 2016; Vol. 608, c. 530.]

He deserves credit, as does my own party leader, the right hon. Alex Salmond. Mr Salmond was right when he said:

“Through the long debates on Iraq, many of us suspected that the Prime Minister had given commitments to the American President which were unrevealed to this House and to the public. The Chilcot report outlined these in spades. The famous phrase

‘I will be with you, whatever’

will go down in infamy in terms of giving a commitment.”—[Official Report, 30 November 2016; Vol. 617, c. 1531-1532.]

In both instances—in 1998 and in 2003—we know that Tony Blair received legal advice warning that military action was illegal; and, in both instances, he ignored that legal advice and went on to authorise the deployment of British service personnel. Blair pressed officials, in particular the Attorney General, to provide legal justification for the use of force. He received none, but he did it anyway.

Blair misled Parliament by claiming that a legal basis for military force without a UN Security Council resolution existed, when in fact it did not. The consequences have been devastating for Iraqis, for the region and for military personnel and their families. Lives lost in the theatre of war are well understood, but the lives wrecked by the trauma of conflict are less easily quantified, yet every bit as real. I heard such stories yesterday when speaking to the war widows. Such loss and devastation is met with great courage by those affected, but every person’s loss should surely be based on a lawful instruction.

How can it be that a Prime Minister who prosecuted two wars against lawful advice and instruction has been rewarded with a knighthood? It is an insult to every single life lost; it should be withdrawn forthwith and a path to full justice secured. Governments should not lie to go to war, and the truth must now be told.

[Peter Dowd (in the Chair)]

I intend to call the Opposition spokesperson no later than 5.40 pm. Hon. Members should bear that in mind when making interventions.

--- Later in debate ---

[Karl Turner (Kingston upon Hull East) (Lab)]

It is a pleasure, as always, to serve under you in the Chair, Mr Dowd. It is also a great pleasure to welcome to his place the new Solicitor General, the hon. Member for Witney (Robert Courts). We are both relatively new to our roles, although I have had the benefit of this being, I think, my second tour in this particular circuit. I am sure that the tone of our debate will remain as thoughtful and constructive as that which was maintained by the previous occupants of our roles—just as it has been today—and I look forward to those debates in the weeks and months ahead.

I commend the hon. Member for Kirkcaldy and Cowdenbeath (Neale Hanvey) on his determination in securing this debate. I know that he has previously made attempts at securing urgent questions on this important issue, and no one can doubt the sincerity of the concerns that have led the hon. Gentleman to pursuing this matter and securing this debate. Whether or not we reach the same conclusions, I applaud and commend him for his persistence in raising this issue.

The hon. Member for Kirkcaldy and Cowdenbeath argues, powerfully, that there is a through line from the discussions that took place within Tony Blair’s Government in 1998 over the decision to carry out airstrikes against military assets in Iraq, without authorisation from the United Nations, and the decision, five years later, to take military action against Saddam Hussein. The contention is that that decision in 1998 paved the way for the decision in 2003 and that, despite the 12 volumes and more than 2.5 million words of the Chilcot report, we cannot fully understand the process that led to the 2003 decision until the 1998 decision is subject to the same level of scrutiny, including the release of all outstanding papers on the issue.

Let me say that I understand the point that the hon. Member for Kirkcaldy and Cowdenbeath is making. As I have said already, I do not doubt the sincerity of the concerns that lie behind his campaign on this matter. It is worth saying, however, that there is another, more immediate throughline from the decision taken in respect of Iraq in 1998, which was the decision taken by Tony Blair and Bill Clinton just a year later in respect of the intervention in Kosovo.

There again, a UN resolution in favour of action could not be achieved because of the permanent Russian veto; there again, as we will surely discover when the relevant papers are released, there were debates both inside and outside Government about the legality of acting without the cover of a UN resolution; and there again, the judgment ultimately made by Tony Blair, Bill Clinton and other NATO allies was that the air strikes they authorised against military assets were justified because of the civilian lives at threat if those assets were left intact.

People may disagree with the air strikes in Iraq in 1998. They may even disagree with the air strikes in Kosovo in 1999. But it is important to recognise that what was going on in that era was not some specific obsession with the regime change of Saddam Hussein, which would lead to the tragedy of the Iraq war in 2003, but a constant debate about whether the world could afford to wait for action from the United Nations following the tragedies of Rwanda in 1994 and Srebrenica in Bosnia in 1995.

I hear what the hon. Member for Kirkcaldy and Cowdenbeath is saying, but while he may maintain that the willingness to set aside legal concerns over the 1998 action was the precursor to what happened in Iraq in 2003, we must also remember that if that same willingness to act had not been present in 1999, we would still be talking today about how the world stood by and allowed the genocidal destruction of the Kosovan people.

[Neale Hanvey]

Will the hon. Member give way?

[Karl Turner]

I will not, if the hon. Gentleman does not mind, because I want the Minister to have the full opportunity to respond to him.

The final point I want to make relates specifically to the issue of which documents have been published in relation to the 1998 action and which are still being withheld from publication. I have no knowledge of how those decisions were arrived at, but I would urge a bit of caution before we leap to any conclusions or encourage any theories that already exist out there about what the still-unpublished papers may or may not contain. In my experience, when officials—in whichever Department it is—sit down and sort through these documents, and decide what to publish and what to withhold, they are always rather more concerned with what precedents will be set for the future and whether there are any security implications for individuals still alive in the present, and rather less concerned with what revelations will emerge about the past.

Personally, I am in favour of maximum transparency wherever possible. I am also in favour of Government Departments being clear about the broad reasons for their decisions when they feel obliged to hold material back from publication. If there are any more concrete reasons that can be provided today as to why the particular papers at issue have not so far been published, then I would welcome that too. That is not because I think there is any great mystery being covered up, but precisely because I think the opposite is true and the Government could dispel a lot of unnecessary and ill-founded speculation if they were clearer about the broad reasons why some material is withheld. If that were to be one positive outcome from this debate, I would welcome it. Another would be to recognise that what motivated much of the action during that period in history was not the desire for regime change in Baghdad, but a compulsion that many leaders rightly felt not to repeat the grave mistakes of Bosnia and Rwanda.

Finally, I offer my sincere commiserations to the loved ones of those military personnel and civilians who lost their lives in these terrible and tragic conflicts.

--- Later in debate ---

[Neale Hanvey]

Thank you, Mr Dowd, for your assiduous chairmanship. I thank all Members for their contributions. They have been very reflective and quite helpful. I want to pick up on a few points that were made. First, I thank the hon. Member for Strangford (Jim Shannon) for his sincerity and passion, and his comments on the bravery of service personnel—

[Peter Dowd (in the Chair)]

Order.

Rule of Law

Neale Hanvey Excerpts

Wednesday 7th October 2020 Westminster Hall

[Neale Hanvey (Kirkcaldy and Cowdenbeath) (SNP)]

I beg to move,

That this House has considered the rule of law in the UK.

Although I may not be a lawyer, as a professional I understand the need for the highest standards of professional conduct and, like every parent, I cherish my responsibility to instil in my children a deep understanding of right and wrong. How that develops is vital to their future and how they make their way in the world. When our children are little, we guide their understanding through the language of good choices and poor choices, working with their teachers and others to celebrate their successes and to use natural and restorative justice techniques to support their understanding of the impact and consequences of the choices they make.

As our children move into adolescence, we necessarily begin a process of refining that understanding, which manifests in a natural pushing against the boundaries of childhood and a process of reflection, leading to the development of their internal moral and ethical codes, which they then carry into adulthood.

Like any parent, I want the very best future for my children, so I take great care to act in a way that supports and guides the development of the values of honesty, integrity, respect and compassion, underpinned by a strong sense of self and a high degree of self-awareness. It is not always easy, but I always strive to demonstrate that I am a human, that I am fallible and that I am able to take ownership of any error in judgment, to apologise for any harm I may have caused, however inadvertently, and to embody the principles of restorative justice by making amends in a sincere and transparent way.

My hope is that, by my actions, my children will understand the value of truth, contrition and atonement. However, that is increasingly difficult when the actions of those in power suggest that such values and principles only exist for others—that their word is always negotiable and never their bond or guarantee. What does that say about the character of those who lead us?

We have a Prime Minister whose past includes well-documented and repeated incidents of racist language. Despite having been given ample opportunities to apologise, he has steadfastly refused to do so. In the absence of any sense of responsibility or of the value of truth there can be no apology, no contrition and no atonement. While the Government may wish those matters away, they still stand as a measure of the man and of all those who stand in his defence.

However, the PM is not alone in that regard. At the height of the global pandemic, in which the UK has one of the highest mortality rates in the world, this Government’s Health Secretary regularly obfuscates when pressed on matters of importance. And what of the UK Government’s man in Scotland, the right hon. Member for Dumfries and Galloway (Mr Jack)? He is stuck on his repeat with his claims of a “power surge”, so lacking in substance that he cannot produce any evidence to support its existence. I could question his motives, but I do not need to. Speaking at the Conservative party conference yesterday, he said about the United Kingdom Internal Market Bill that “they”—the SNP—

“don’t like the bill, which makes me like it even more.”

If that is what passes in the Conservative party for an appropriate motivation to enact legislation—legislation that will have a demonstrably damaging effect on people’s livelihoods, jobs and businesses and Scotland’s democracy —that is shameful.

The right hon. Gentleman’s words reveal the dangerous and ideological grip that this Government are in, not just in observing the law but in writing it. If that type of casual comment is anything to go by, it is little wonder that the Prime Minister and his Back Benchers get such pleasure from their contentious behaviour towards Scotland, where the wildly exaggerated promises of Brexit are readily discarded but a casual comment made during Scotland’s 2014 referendum is held as inviolable. The Prime Minister should consider that the tissue of lies that was the vow used to secure that vote and its immediate betrayal will never be forgotten in Scotland. Those promises of devo-max ring hollow like never before as this Government impose their will on a Scotland that did not vote for them.

Prior to 2016, the Sewel convention performed a useful function, ensuring that the devolved legislatures engaged with the UK’s legislation to address problems early on. It engendered a culture of mutual respect and was based on trust, compromise, and transparent and open dialogue, but Brexit has exposed the vulnerability of devolved power in the face of a Conservative UK parliamentary majority.

Despite a clear majority remain vote in Scotland and Northern Ireland, the unilateral enactment of the European Union (Withdrawal) Act 2018 without the consent of the Welsh or Northern Irish Assemblies or the Scottish Parliament was described by Aileen McHarg, professor of public law at Durham University, as threatening the Sewel convention “almost to destruction”. She went on to say that while it was possible to depart from the Sewel convention, UK ministers had failed to give constitutional grounds for doing so, and that

“To make an exception to a rule, what is required is an explanation of why its underlying rationale either does not apply, or is overridden by some competing principle.”

Perhaps that is a point that the Minister could clarify today. Professor McHarg further cautioned that such a

“radical re-reading of the Sewel Convention…would seriously undermine the protection it offers for devolved autonomy.”

So much for a power surge.

Professor McHarg is not alone. In January, the Institute for Government stated that the Sewel convention had been broken by Brexit, and that reform is now urgent. Although both the Scottish and Welsh Governments put forward substantive proposals for such reform, such as making the convention legally enforceable or adding a stage to consider the views of the devolved Administrations, this Government were reluctant to engage. The United Kingdom Internal Market Bill makes it abundantly clear that their idea of reform has been to do the complete opposite. As my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) recently opined,

“The Sewel convention is about as much use for defending devolution as a chocolate teapot”.

The Bill also shows a flagrant disregard for the Sewel convention, one of the key planks of the UK’s unwritten constitution. Clause 46 attempts to strip away powers from Scottish Ministers in clearly defined devolved areas of power. As Baroness Helena Kennedy QC said of the Bill last week,

“It goes against the Sewel convention. It goes against our traditional constitutional workings and conventions. This is a really shocking business, and we shouldn’t take it lying down”.

Indeed, the very mechanism that exists to protect devolution is toothless in the face of the United Kingdom Internal Market Bill and its facility to drive a coach and horses through the devolution settlement.

However, the further betrayal of the promises made to Scotland in 2014 is not the only impact of the Bill. It has also alerted the international community of something Scotland has known for a considerable time: that the word of the UK Government means nothing. Legislating to break international law in the midst of efforts to forge trade agreements with the EU and other nations across the globe—agreements that the UK Government presumably hope will be binding on both sides—is a very peculiar way to demonstrate the necessity of good faith.

On 24 September this year, the Attorney General asserted in this House that, as a matter of domestic law, it was proper for Parliament to pass legislation that might breach

“international law or treaty obligations.”

Fortunately, my hon. and learned Friend the Member for Edinburgh South West was on hand to raise the following question:

“The Attorney General has justified her support for the Bill by reference to the domestic legal principle of parliamentary supremacy and the judgment of the UK Supreme Court in Miller. But in that case, the UK Supreme Court also said, at paragraph 55, 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.’ The Supreme Court was quite clear that such treaties ‘are binding on the United Kingdom in international law’.”

She then asked:

“Why did the Attorney General omit reference to that part of the Supreme Court’s judgment? Did she not learn the rule against selective citation when she was at law school?”—[Official Report, 24 September 2020; Vol. 680, c. 1125-1126.]

However, it quickly became evident that not only had the Attorney General missed the point of law by confusing Miller 1 with the Miller 2 and Cherry cases—she must have been taking lessons from her boss by trading playground taunts as a substitute for substance and mounting an undignified attack on my hon. and learned Friend and the Scottish Government.

Following the point of order and an impromptu celebration from my hon. and learned Friend given her great victory for the rule of law made in Scotland, the misunderstanding was clarified, as one esteemed commentator opined that it was a case of

“Mixed Millers from the attorney general.”

However, there was no further response from the Attorney General. Perhaps we can hear one today.

It is worth noting that the Attorney General also raised the matter of the Scottish Government’s named person scheme when they were found to be in breach of international law, but there is little by way of equivalence. The Supreme Court ruled that although the named persons proposal was unquestionably legitimate and benign, some of the provisions breached the rights to privacy and family life under the European convention on human rights. Unlike the UK Government, the Scottish Government accepted the ruling without question and introduced a Bill to address the concerns of the court. That response to a court ruling stands in stark contrast to the UK Government, who have pressed on with their legislation regardless, despite a flood of criticism from some of the most senior legal voices in the country.

The SNP Scottish Government did not complain about “activist” or “leftie” lawyers or suggest that judges should have their wings clipped; they welcomed the role of the courts in holding the Executive to account, and see it as a crucial part of a healthy democracy. I gently suggest that the UK Government could learn a lot from Holyrood’s approach. In pursuing a clear breach of international law, UK Government Ministers are now also in breach of the ministerial code.

As confirmed in the Court of Appeal in 2018, the ministerial code still mandates compliance with international law. Furthermore, the Attorney General’s justification that treaty obligations become binding only to the extent that they are enshrined in domestic legislation is nonsense: they become enforceable before domestic courts only if incorporated by legislation. The Government’s reliance on internal law to justify their position does not in any way affect the fact that the Bill places the UK in breach of its international treaty obligations. It was therefore of little surprise to read the reaction of the Financial Times legal correspondent, who described the Attorney General’s legal opinion as

“first-term, first-year undergraduate tosh”.

I should not need to say this, but fulfilling obligations under international treaties is one of the most fundamental responsibilities of any state that claims to be a responsible member of the international community. International law governs the making, interpretation and termination of international treaties. Most importantly, the Vienna convention on the law of treaties 1969, which the UK signed in 1970 and ratified in 1971, provides in article 26 that

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

That article reflects a very long-standing principle of international law: “pacta sunt servanda”—agreements must be kept. That is a basic principle of customary international law, and as such, is also part of English common law. It is key to the very existence of a rules-based international order.

In recent years, we have seen the UK call on the Iranian, Chinese and Russian Governments to respect their commitments under international law. It is difficult to see how the UK will be able to conduct such conversations with any credibility in future. To that end, one can only conclude that the consequences for the UK’s international standing and reputation have been deeply damaging.

According to the Foreign Secretary, however, he has met no one who thinks that the UK is not a defender of the international rule of law in the wake of that controversial legislation. That statement lacks any credibility. I will give a flavour from some people the Foreign Secretary may meet. The former Prime Minister, the right hon. Member for Maidenhead (Mrs May), asked

“how can the Government reassure future international partners that the UK can be trusted to abide by the legal obligations in the agreements it signs?”—[Official Report, 8 September 2020; Vol. 679, c. 499.]

Former Prime Minister Sir John Major has said:

“Our signature on any treaty or agreement has been sacrosanct…If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained.”

The right hon. Member for North Thanet (Sir Roger Gale) said:

“Seeking to renegotiate the Northern Ireland protocol will be regarded worldwide as an act of bad faith.”

Nancy Pelosi, the Speaker of the House of Representatives, said:

“The UK must respect the Northern Ireland protocol as signed with the EU to ensure the free flow of goods across the border. If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.”

Finally, Amal Clooney, the former UK special envoy on media freedom, said:

“very sadly, it has now become untenable for me, as special envoy, to urge other states to respect and enforce international obligations while the UK declares that it does not intend to do so itself.”

I could seriously go on and on. In a recent Foreign Affairs Committee sitting, my hon. Friend the Member for Glasgow South (Stewart Malcolm McDonald) raised the Sino-British joint declaration, which the Foreign Secretary has accused China of breaking by forcing controversial national security legislation on Hong Kong. In response, the Foreign Secretary said:

“What I think you’re trying to neatly do is draw some moral equivalence or substantial equivalence between the two and I think it’s crazy, I think it’s absolute nonsense.”

He also insisted that

“we haven’t broken international law”

yet, instead saying that the legislation is necessary because of

“frankly some of the aggressive behaviour”

from Brussels.

That got me thinking. Should Scotland also take a similar tack, and introduce the legislation that we feel is necessary because, frankly, of some of the aggressive behaviour from this UK Government? Or is this more a case of “do as I say and not as I do”? Of course, it is not just the United Kingdom Internal Market Bill that undermines the devolution settlement and the Union; the planned independent review of administrative law, which is no small matter, is set to target the crucial judicial review process following the successful use of that mechanism to prevent the unlawful prorogation of Parliament, and that inquiry poses a danger to the Union.

It is important to reiterate widely held concerns about contracts recently awarded by this Government. Data analysed by The Guardian shows that in response to covid, state bodies have awarded at least 177 contracts worth £1.1 billion to commercial firms. Of those contracts, 115— with a total value of more than £1 billion—were awarded under the fast-track rules, bypassing competitive tenders. Of course, that is nothing new from the UK Government. Last year, when the right hon. Member for Epsom and Ewell (Chris Grayling) handed a £13.8 million ferry contract to Seaborne Freight, with no tender process, despite the fact that the company owned no ships, that led to Eurotunnel suing the Government, who paid out £33 million in settlement just before the case was to go to court. In the meantime, Seaborne Freight has gone into liquidation, owing £2 million.

Today, I am focusing on the party of government, because they are in Government, but I make no exception for others, regardless of their political stripes, who abuse the power that they are trusted to carry as a means to nefarious or personal ends. The party of law and order appear to have become the party of lawlessness and disorder. I ask the Minister to ask the Attorney General the question on the lips of parents up and down these islands: how can we teach our children right from wrong when those in power are seen to abuse it, when those who make the law break the law and when the protectors of the people throw their best interests to the wind in pursuit of self-interest? By their failure to observe the rule of law, the Government diminish us all.

--- Later in debate ---

[Neale Hanvey]

Will the hon. Gentleman give way?

[The Solicitor General]

I will just finish my sentence. There is an understanding that decoupling from the European Union is a unique—indeed, unprecedented—situation with the added complexity of the peace process and Northern Ireland, and the unstable political landscape that prevailed before the last election. In the difficult and highly exceptional circumstances in which we find ourselves we must, therefore, consider the fundamental principle of parliamentary sovereignty.

I have not been given an awful lot of time, but I must just say that the principle of parliamentary sovereignty means that it is entirely constitutional for Parliament to enact legislation even if provisions within that legislation, once commenced, would affect the UK’s treaty obligations. I will just make this point: section 38 of the European Union (Withdrawal Agreement) Act 2020 reiterated, in terms, that parliamentary supremacy “subsists” notwithstanding the provisions of the withdrawal agreement with express reference to direct effect, the very thing that may potentially be disapplied here. In other words, Parliament had already prepared for that eventuality. It is there in black and white in section 38.

In the United Kingdom, treaty obligations only become binding in domestic law to the extent that they are enshrined in domestic legislation. Whether to enact or repeal legislation, and the content of that legislation, is for this Parliament and for this Parliament alone. It is a dualist approach. It is not uncommon, and it is not rare. In fact, it is shared by Canada, Australia and New Zealand. Parliamentary scrutiny of the United Kingdom Internal Market Bill so far has served to reinforce Parliament’s central role in the UK’s constitution.

In the last minute that I have, I wanted to reiterate this point: other states known for upholding the rule of law have passed domestic legislation that ran contrary to their treaty obligations. For example, in 2018 the Canadian Government introduced domestic legislation to legalise cannabis. That was in breach of specific provisions of the existing treaty obligations under three United Nations narcotics conventions. The Canadian Government acknowledged the breach, but they stated that their approach was still consistent with the overarching goal of those conventions. Debates such as this are an important opportunity to explain how the Government are upholding the rule of law while making provision for the internal market in the UK and retaining the ability to act decisively in the interest of the whole United Kingdom following our departure from the European Union earlier this year, so I thank the hon. Member for Kirkcaldy and Cowdenbeath for raising the issue today.

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