Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Howell of Guildford Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Howell of Guildford (Con)]

My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Drake, on her skilled chairmanship of the sessions of the committee that gave birth to this report. It was not an easy task at all. I also echo strongly the words of welcome to the noble Lord, Lord Hennessy. It is marvellous to see him again. Although we have both long since been rotated off the committee, we worked together on earlier reports. That was a real honour and a pleasure, and something to keep in my memory. I greatly look forward to what he has to say in a few moments.

My contribution will focus not so much on the role of the Lord Chancellor and the law officers in upholding the rule of law—on which we have already heard some wise words—as on the first section of the report, which interestingly analyses what the rule of law really means today, and to what that rule extends.

First, I add briefly my agreement with the report’s finding that the Lord Chancellor must be a massively credible figure and the pillar not only in advising the Cabinet what is or is not constitutional and robustly defending the judiciary but in ensuring that no one is above the law and that it applies equally to both rulers and the ruled. That fundamental point seems to have escaped the comprehension, for instance, of the autocrats in today’s world, particularly the Chinese leaders, who often assert indignantly that of course the law applies to the people—but not to the leaders of the Government or the all-powerful Chinese Communist Party. That is the big geopolitical dilemma we all face.

All this begs the key question for us, which the report bravely faces in its first few pages, of what exactly the rule of law means and, especially, what it means in an international context, where other parties outside our national judicial space may not be playing quite the same game as we are. As one witness to the committee’s inquiry put it,

“One person’s legal nicety is another person’s rule of law”.


Other witnesses talked about the rule of law as a “protean”—presumably meaning “evolving”—concept, or, in one case, as being “somewhat nebulous”. There is also the dilemma, put to us by several very senior legal figures as witnesses, that when it comes to what some deem our international legal obligations, Parliament can legislate to the contrary, and since the will of Parliament is the law of the land, it must take precedence in the enforcement of the law in the courts.

The gospel to which many legal minds seem to return in untangling this dilemma—and to which the report itself returns—is the opinion of the late Lord Bingham, whose views get a whole half-page box in the report. Tom Bingham was pretty unequivocal about the rule of law applying just as much in the international legal order as in national domestic law. Others were more doubtful about that and that identity, arguing that international law raises quite different and changing issues. Personally, I share their doubts perhaps a little more strongly than the report consensus does.

It seems obvious to me that where one side in an international agreement or treaty is a foreign power or institution which then bends or even flouts the spirit of the agreement or treaty, or interprets it in unexpected ways, the other side—meaning us—has every right to alter its stance. Where dispute machinery exists, as in Article 16 of the EU withdrawal treaty, plainly, that should be the first port of call. That is obvious. The Vienna convention on treaties—which does not get much of a mention—makes allowance for this, in Article 60 and possibly Article 62 as well, if the dispute machinery fails to get a constructive and satisfying consequence, or in some cases is simply disregarded, as, for example, the Chinese nowadays often do.

In these circumstances, it seems to me that a unilateral response, even if temporary, to a unilateral move by another party may well be justified. Frankly, I am sorry that we did not go deeper into those kinds of circumstances. Moves by the UK Government such as the famous—some claim notorious—two clauses tacked on to the internal market Act, which were deemed to be in breach of UK treaty obligations, seemed to be assumed from the start to be “legal sins” rather than moves in an unfolding and wider drama. I know that that will not have the support or agreement of many colleagues. This all requires more careful thought before rushing to judgment.

The report both begins and ends its summary by emphasising the vital link between upholding the rule of law and the whole health of our modern democracy. That means being open-eyed and honest not only about the unfolding meaning of the rule of law but about our liberal democracy and how in the digital age it is evolving rapidly in response to the revolutionary change in the way people and institutions relate—indeed in all relationships, from the humblest, the family, up to the highest level of international exchange.

Democracy is not in decline, but it is certainly under attack. We must attend to what Alexis de Tocqueville called “the errors of democracy” if our rule of law is robustly to uphold democracy’s health as a better performer than the authoritarian alternatives. That is surely better than just standing by and letting democracy’s obvious errors and weaknesses grow or complacently assuming that it all works fine and needs no defence or adaptation.

Warning against that dangerous tendency is one more major task for a truly influential Lord Chancellor at the heart of the Government and the Cabinet but also at the heart of our independent judicial system—he or she is the bedrock—but that is clearly a task for another day and, maybe, another report.

EU Referendum and EU Reform (EUC Report)

Lord Howell of Guildford Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Howell of Guildford (Con)]

My Lords, the noble Lord, Lord Pearson of Rannoch, has certainly raised the temperature of the debate. I would say on his behalf that he is a reminder in the calm Chamber and calm wisdom of your Lordships’ House that outside, the temperature on this issue is rising—certainly at the more excitable end of the media—to boiling point. It is also worth commenting that so far in this debate—indeed, in the very facts that the noble Lord, Lord Boswell, set before us—there is now an assumption that Brexit, or leave, is a possibility. Indeed, the report addressed itself to how that possibility would unfold.

I was not in the excellent and learned team of the noble Lord, Lord Boswell. He has produced a very interesting report, which makes one think a great deal about these different possibilities, although there is one omission from the report, which I shall come to in a moment. I am not really surprised that, outside this House, in the wider world, the stay campaign is now on something of a back foot. You would have to be completely deaf not to hear the dismay and grumbles from many people—I suspect the majority in this country—who feel that this is the wrong debate about the wrong issues altogether. They believe that the renegotiation, which was attempted but has been somewhat forgotten, as the noble Lord, Lord Boswell, reminded us, was on the wrong basis and assumptions.

On the generality, although the big markets of the future are most probably in Asia, Africa and the Commonwealth, geography and history nevertheless keep us firmly in Europe. Every attempt to stand on the sidelines or wash our hands of continental European development has always ended in disaster, as the Prime Minister pointed out. In Britain, we have always, in the end, been drawn in. So for us, the sidelines, as we should long ago have discovered and as we have discovered, just do not exist. Incidentally, we keep being told that countries such as Canada and Japan have a perfectly good access to the single market without being members of the European Union. I have looked in the history books and I cannot find any time when Canada or Japan were in Europe—we are, and that is the basic difference.

The referendum project and the negotiation project started from the right point. The first sentences of the Prime Minister’s Bloomberg speech of 23 January 2013 made it clear that the task was to be about the reform and future of the European Union to meet 21st century conditions, not just the reform of UK relations within it on a bilateral basis. But then something went wrong, and the debate lost its way. Experts crowded in to insist that all should be reduced to a sort of shopping list of British demands, and that was what the negotiations had to be about, and that the fundamentals—the pillar principles of EU architecture—should on no account be touched, because they were the ark of the covenant. So what should have been from the outset to be a European question—I believe the Prime Minister wanted it to be that way—became a British question, and an increasingly narrow one at that. For example, reputable think tanks such as the Centre for European Reform advised loudly that on no account should the Prime Minister even try to address or look at fundamental changes in the Union. Yet far from not touching on the fundamentals of the European model, it was always those basic features and principles that needed addressing and opening up. Why? Because the EU is a 20th century construct, rooted in and founded on 20th century concerns, which it addressed to great effect. But it is trying now to operate in a totally transformed world environment where big data and new platforms have completely revolutionised markets, business models and trade patterns, and are about to change much more—and, of course, where huge migrant flows have become a permanent feature, and will get much worse.

The digital and big data age invalidates all past precepts. There is simply no need for the doctrines of centralisation, integration and control in Europe; nor is this any longer the path to efficiency and innovation in our respective economies. With not only trade but actual production processes being globalised, the very concept of a single, tariff-protected goods market, as was designed in the 1970s, 1980s and 1990s, begins to melt away. Instead, the technologies cascading out from digitalisation permit and demand decentralisation, flexibility, differentiation and localisation. Those are the underpinnings of what should be the vision that the report has been looking at. The age of platform technology not only alters radically the relations between consumers and producers but places individuals—voters or the grass roots, call them what you like—in a completely different relationship to the governing authorities. The ground beneath the feet of the ruling caste who created the EU hierarchy is being visibly washed away. We should be aware of that and should not shut our eyes to it.

My one criticism of the report is that it does not come to grips with this vital aspect of what is happening as opposed to what we think, from our various standpoints, ought to happen. Common sense, when it is allowed into the debate, confirms that neither of the extreme campaigning poles—the leavers’ nirvana of pure sovereignty and control snatched back from some embryo superstate, along with a magical insulation from migrant flows, versus the remainers’ happy and overcomplacent idyll of staying in the EU in its present form—is remotely available in the real and changing world or will ever be. The centrifugal powers of the information age, the ever-stronger restraining interdependence of all modern states, the absolutely unavoidable need for massive and continuous reciprocity and the spaghetti bowl of new types of trade and supply chains across the planet, which are now mostly in data and information form, will put paid to both those dreams. Big changes are certainly coming, but not the ones that either camp predicts, and we should surely be warned about that.

Whatever happens on 23 June, the time has come to analyse coolly the very fast-changing international order of things and put deep and serious intellectual effort into redesigning and preparing the European region—our region, whether we like it or not—for the torrent of changes from the wider world and the storms to come. Some, like the migrant flood, have already arrived. The global repositioning of Britain should be a central part of this story. Our relations not just with a changing EU but with America and the whole gigantic Commonwealth need revisiting. They are all relevant to the renegotiation approach. Meanwhile, we are being asked to travel on a wrong and fruitless route with the possibility of some very nasty shocks along the way immediately ahead. A still, small voice should be reminding us that as a nation we are making fools of ourselves instead of offering the best of ourselves, which could be very good indeed, when confronting the real issues and threats.

The debate now should be a negotiation—if that is the right word—about how Britain can help lead the European Union out of the trough and the time warp in which it has become entrapped. On the morning of 24 June, whether in or out has won, we will still find ourselves enveloped of necessity in a common purpose: to help reform and equip the European region in which we live for its survival in a totally transformed international milieu. It will be a context in which, with skilled statesmanship, bridges can be rebuilt between the bitter antagonists in this debate. Why? Because in today’s hyperconnected world all the countries of Europe, including Britain, are functionally inseparable. That is the reality that has to be faced or, to put it in more homely terms, the egg that cannot be unscrambled, Brexit or no Brexit. The EU today, troubled though it may be, is our village and our neighbourhood, but it is not our destiny. We should remain good neighbours but lift our vision to much higher challenges ahead.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Lord Howell of Guildford Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Howell of Guildford (Con)]

My Lords, I welcome the statutory instrument, which should clear the way nicely to the referendum. I dislike the way in which the whole debate has become somewhat personalised, obviously with the eager help of the media. I assure your Lordships that I have good friends on both sides in this argument and I intend to keep it that way. I hope that we can stick, as the late Tony Benn always used to say, to the issues.

I can put my own view quite simply. First, I believe that Britain joined the EU, when it was the European Community, at the wrong time and is trying to leave at the wrong time—or is at least talking about it. We are discussing getting out just when the whole EU is evolving in entirely new directions, driven by major new world forces—a change which seems to have escaped the notice of many of the leavers, and indeed some on the remain side as well. Secondly, I greatly admire the tenacity and energy shown by my right honourable friend the Prime Minister over the deal which we are debating. However, I do not think that it will be an entirely central influence on the way that people vote in the actual referendum, although it has certainly opened up all sorts of reform ambitions in other member states all over Europe, as anyone can see by reading the continental newspapers.

I believe that the way in which people will be influenced to vote is by one overriding and much deeper issue. That is whether they think that the EU is heading inevitably for an integrated, superstate political union—centralised, with an all-powerful euro currency and dragging us into the mangle against our interests—in which case we should certainly leave and stand clear, or whether Europe is in reality evolving by necessity into a new model under outside and global impacts both good and bad, as we can see in the daily papers, which will compel us and the EU to become far more flexible and much less centralised. In that case we would be very unwise indeed not to stay and help steer the new model into being.

My own judgment goes to the latter case and to staying on board, for three main reasons. First, the peoples of Europe clearly do not want more integration and uniformity than they already have, whatever their leaders may say. The White Paper which we are debating, The Best of Both Worlds, asserts:

“Some … countries have chosen the path of deeper … integration”,

but I wonder whether that is in fact right. Which are these other countries, except perhaps Luxembourg? Some countries may not want to go back beyond the existing co-operation but I see no popular support whatever throughout Europe for a lot more pushing together in the digital age, with more integration, centralisation and intrusion—on the contrary.

Secondly, over the last decade or so new trade patterns, supply chains and modes of production have been utterly transforming the old EU model. Even the single market is not what it seemed in the last century, certainly not for services where a single market in Europe barely exists, despite services being 80% of our GDP and at least 46% of our export earnings, as the Government’s papers remind us. As for the eurozone, while that is depicted as a dominant and fearsome force ganging up against us from which we must be sheltered, it is in fact deeply and chronically sick. I see nothing but crisis and division ahead within the eurozone. I do not know whether the former Governor of the Bank of England, the noble Lord, Lord King of Lothbury, is here but I am glad that he now agrees with me on that.

Thirdly, huge new markets outside the EU are opening up which are not alternatives to the EU region but ones in which we must succeed. Asia, Africa and Latin America are where the big prizes are. The Commonwealth network ought to give us unique advantages in these markets, providing that we use it properly.

In short, we have to ride both horses. The immediate priority here in Europe is, and has been all along, reform—deep reform throughout the EU to meet the digital age and totally new world conditions, not least the total transformation of world energy that is now going on. As The Best of Both Worlds White Paper says repeatedly, that work is not over. Indeed, it is just beginning and in that work, all our history tells us that we can and must play a central part.

Magna Carta: 800th Anniversary

Lord Howell of Guildford Excerpts

Monday 17th December 2012 Lords Chamber

[Lord McNally]

My Lords, I am sure that Sir Robert welcomes all suggestions. That sounds like a very good one. In addition, a lot of work is being done, not least by the towns and cities of the United Kingdom which have historic relations with the Magna Carta, and in other parts of the Commonwealth and English-speaking world. The noble Lord is right: the 800th anniversary will be a great celebration and work is well under way to make it so.

[Lord Howell of Guildford]

My Lords, is the Minister aware that at about the same time or maybe sooner, what might be called a maxima carta will be signed and sealed, upholding the rights of 2 billion citizens across the entire Commonwealth network? Will he ensure that when it is signed, quite shortly, it also gets appropriate commemoration and possibly full approval and validation in this House?

[Lord McNally]

Again, I sincerely hope so. I also know that the Magna Carta committee is determined that the celebration of the 800th anniversary will be a Commonwealth celebration, since Magna Carta means so much to so many Commonwealth countries.